HEALTH SERVICES ACT 1997 - SCHEDULE 4

HEALTH SERVICES ACT 1997 - SCHEDULE 4

SCHEDULE 4 – Transfers, dissolutions, amalgamations and changes of name or nature of governance

(Sections 21, 44, 64 and 132)

Part 1 - General

Division 1 - Interpretation

1 Definitions

In this Schedule--


"instrument" means an instrument (other than this Act) that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order or process of a court.


"transferee" means the person or body to which any staff, assets, rights or liabilities are transferred.


"transferor" means the person or body from which any staff, assets, rights or liabilities are transferred.


"transferred public health organisation" means a public health organisation that is transferred to another public health organisation.

2 Orders to which this Schedule applies

This Schedule applies to the following orders--

(a) an order under section 20 (Dissolution, amalgamation or change of name of local health districts),

(b) an order under section 43 (Dissolution, transfer, amalgamation, or change of name or nature of governance of statutory health corporations),

(c) an order under section 64 (Transfer of recognised establishments and recognised services of affiliated health organisations),

(d) an order under section 131 (Transfer of hospitals, health institutions, services and property between local health districts and statutory health corporations).

Division 2 - Consequences of orders to which this Schedule applies

3 Orders relating to local health districts

(1) Dissolution orders On and from the date specified in an order under section 20(1)(a) for the dissolution of a local health district--

(a) the local health district is dissolved, and

(c) the assets, rights and liabilities of the local health district are transferred to the Minister (or any other person or body specified in the order), and

(d) Part 2 applies to that transfer.

(2) Amalgamation orders On and from the date specified in an order under section 20(1)(b) for the amalgamation of 2 or more local health districts--

(a) each local health district amalgamated by the order is dissolved, and

(c) the assets, rights and liabilities of each amalgamating local health district are transferred to the amalgamated local health district, and

(d) Part 2 applies to that transfer.

(3) Name change orders On and from the date specified in an order made under section 20(1)(c) changing the name of a local health district, Part 3 applies to that change of name.

(4) Effect on compensation rights Nothing in this Schedule affects any compensation rights to which the chief executive of a dissolved or amalgamating local health district may be entitled under Part 3 of Chapter 9 as a consequence of ceasing to hold office.

4 Orders relating to statutory health corporations

(1) Dissolution orders On and from the date specified in an order made under section 43(1)(a) dissolving a statutory health corporation--

(a) the statutory health corporation is dissolved, and

(b) in the case of a board governed health corporation or specialty network governed health corporation, the members of the board of the corporation cease to hold office, but are not entitled to be paid any compensation by reason of ceasing to hold office, and

(c) the assets, rights and liabilities of the statutory health corporation are transferred to the Minister (or any other person or body specified in the order), and

(d) Part 2 applies to that transfer.

(2) Transfer orders On and from the date specified in an order made under section 43(1)(b) transferring a statutory health corporation to a local health district--

(a) the statutory health corporation is dissolved, and

(b) in the case of a board governed health corporation or specialty network governed health corporation, the members of the board of the corporation cease to hold office, but are not entitled to be paid any compensation by reason of ceasing to hold office, and

(c) the assets, rights and liabilities of the statutory health corporation are transferred to the local health district, and

(d) Part 2 applies to that transfer.

(3) Amalgamation orders On and from the date specified in an order made under section 43(1)(c) for the amalgamation of 2 or more statutory health corporations--

(a) each statutory health corporation amalgamated by the order is dissolved, and

(b) the members of the board of a board governed health corporation or a specialty network governed health corporation involved in the amalgamation cease to hold office and--

(i) if the amalgamated corporation is a board governed health corporation or specialty network governed health corporation, are eligible (if otherwise qualified) to be appointed as members of the board of the amalgamated corporation, and

(ii) are not entitled to be paid any compensation by reason of ceasing to hold office, and

(c) the assets, rights and liabilities of each amalgamating service are transferred to the amalgamated statutory health corporation, and

(d) Part 2 applies to that transfer.

(4) Name change orders On and from the date specified in an order made under section 43(1)(d) changing the name of a statutory health corporation, Part 3 applies to that change of name.

(4A) Change of governance orders On and from the date specified in an order made under section 43(1)(d) changing the nature of governance of a statutory health corporation from board governance or specialty network governance to chief executive governance, the members of the board for the corporation cease to hold office, but are not entitled to be paid any compensation by reason of ceasing to hold office.

(4B) On and from the date specified in an order made under section 43(1)(d) changing the nature of governance of a statutory health corporation from board governance to specialty network governance or from specialty network governance to board governance, the members of the existing board cease to hold office and--

(a) are eligible (if otherwise qualified) to be appointed as members of the new board of the corporation, and

(b) are not entitled to be paid any compensation by reason of ceasing to hold office.

(5) Effect on compensation rights Nothing in this section affects any compensation rights to which the chief executive of a dissolved or amalgamating statutory health corporation may be entitled under Part 3 of Chapter 9 of this Act or Part 4 of the Government Sector Employment Act 2013 as a consequence of ceasing to hold office as such.

5 Orders relating to affiliated health organisations

(1) Transfer of hospitals and health institutions On and from the date specified in an order under section 64(1)(a) transferring any public hospital or health institution of an affiliated health organisation that is a recognised establishment of the organisation to a local health district or statutory health corporation, Part 2 has effect to the extent of that transfer.

(2) Transfer of health services and health support services On and from the date specified in an order under section 64(1)(b) transferring any health service or health support service of an affiliated health organisation that is a recognised service of the organisation to a local health district or statutory health corporation, Part 2 has effect to the extent of that transfer.

(3) Transfer of assets, rights or liabilities On and from the date specified in an order under section 64(1)(c) transferring any assets, rights or liabilities of an affiliated health organisation relating to a recognised establishment or recognised service of the organisation to a local health district or statutory health corporation, Part 2 has effect to the extent of that transfer.

(4) Consents to transfers of property An order under section 64(1) that purports to transfer any property of an affiliated health organisation operates to transfer only such property in respect of the transfer of which the organisation has consented.

(5) Effect on trustees of transfer order If any such order operates to transfer all of the property of an affiliated health organisation that is held in trust for it by trustees, the trustees cease to hold office as trustees in respect of that property on and from the transfer date specified in the order.

6 Orders transferring hospitals, health institutions, services or property between statutory health organisations

(1) Transfer of public hospitals and health institutions On and from the date specified in an order under section 131(1)(a) transferring any public hospital or health institution under the control of a statutory health organisation to another statutory health organisation, Part 2 has effect to the extent of that transfer.

(2) Transfer of health services and health support services On and from the date specified in an order under section 131(1)(b) transferring any health service or health support service under the control of a statutory health organisation to another statutory health organisation, Part 2 has effect to the extent of that transfer.

(3) Transfer of services provided by Crown On and from the date specified in an order under section 131(1)(c) transferring any hospital or health service controlled by the Crown, Part 2 has effect to the extent of that transfer.

(4) Transfer of assets, rights or liabilities On and from the date specified in an order under section 131(1)(d) transferring any assets, rights or liabilities of a statutory health organisation to another statutory health organisation, Part 2 has effect to the extent of that transfer.

Part 2 - Transfers

Division 1 - Staff

7 Transfer of staff

A member of staff who is transferred by a transfer to which this Part applies is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the person not been transferred but remained a member of staff of the transferor.

Division 2 - Transfer of hospitals, health institutions, health services and health support services

8 Transfer of hospitals and health institutions

(1) An order that transfers a hospital or health institution from any public health organisation to another public health organisation is taken to transfer (unless the order provides otherwise)--

(a) the staff employed in or in connection with the hospital or institution, and

(b) the assets, rights and liabilities used principally for the conduct of the hospital or institution.

(2) An order that transfers a hospital or health institution controlled by the Crown to a public health organisation is taken (unless the order provides otherwise) to transfer the personal property of the Crown used principally for the conduct of the hospital or institution.

9 Transfer of health services and health support services

An order that transfers a health service or health support service from any public health organisation to another public health organisation may specify the staff, assets, rights or liabilities of that health service or health support service that are to be transferred from the other public health organisation along with the health service or health support service.

Division 3 - Assets, rights or liabilities

10 Vesting of undertaking in transferee

(1) When any assets, rights or liabilities are transferred by a transfer to which this Part applies, the following provisions have effect--

(a) the assets of the transferor vest in the transferee by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,

(b) the rights or liabilities of the transferor become by virtue of this clause the rights or liabilities of the transferee,

(c) all proceedings relating to the assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,

(d) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the transferor is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee,

(d1) the transferee has all the entitlements and obligations of the transferor in relation to those assets, rights and liabilities that the transferor would have had but for the order, whether or not those entitlements and obligations were actual or potential at the time the transfer took effect,

(e) subject to the regulations, a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent to which it relates to those assets, rights or liabilities) taken to include a reference to the transferee.

(2) The operation of this clause is not to be regarded--

(a) as a breach of contract or confidence or otherwise as a civil wrong, or

(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or

(d) as an event of default under any contract or other instrument.

(3) No attornment to the transferee by a lessee from the transferor is required.

(4) A transfer is subject to the terms and conditions of the order by which it is effected.

(5) No compensation is payable to any person or body in connection with a transfer to which this Part applies except to the extent (if any) to which the order giving rise to the transfer so provides.

(6) Subclause (5) does not affect the rights of any member of staff who is the subject of a transfer to which this Part applies.

Division 4 - Other general provisions concerning transfers

11 Date of vesting

A transfer to which this Part applies takes effect on the date specified in the order by which it is effected.

12 Consideration for vesting

The Minister may, by order in writing, specify the consideration on which a transfer to which this Part applies is made and the value or values at which the assets, rights or liabilities are transferred.

13 Stamp duty

Stamp duty is not chargeable for or in respect of--

(a) a transfer to which this Part applies, or

(b) anything certified by the Minister as having been done in consequence of such a transfer (for example, the transfer or conveyance of an interest in land).

14 Confirmation of vesting

(1) The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities by operation of this Part.

(2) Such a notice is conclusive evidence of that transfer.

15 By-laws of public health organisation

The by-laws of a transferred public health organisation in force at the transfer date continue to apply to and in respect of any hospital, health institution, health service or health support service it conducts or provides until by-laws are made under this Act by the transferee in relation to that hospital, institution or service.

16 Functions of transferred public health organisation

(1) Any function conferred or imposed immediately before the transfer date on a transferred public health organisation, or on the board (or managing body) of a public health organisation, in relation to the administration and operation of any of the hospitals, health institutions, health services or health support services it conducts or provides may continue to be exercised on and from the transfer date by the transferee.

(2) Subclause (1) has effect despite any other provision of this Act.

(3) Without limiting subclause (1), a reference in that subclause to a function includes a reference to a power of investment.

Part 3 - Changes of name

17 Name changes do not affect status of district or corporation

A change of name of a local health district or a statutory health corporation by an order does not operate--

(a) to create a new legal entity, or

(b) to prejudice or affect the identity of the body corporate constituted as a local health district or statutory health corporation or its continuity as a body corporate, or

(c) to affect the property, or the rights or obligations, of the local health district or statutory health corporation, or

(d) to render defective any legal proceedings by or against the local health district or statutory health corporation,

Part 4 - Savings and transitional regulations

18 Regulations

(1) The regulations may contain other provisions of a savings or transitional nature consequent on the making of an order to which this Schedule applies.

(1A) Without limiting subclause (1), a provision referred to in that subclause may make provision for or with respect to the legal consequences of the differential transfer of rights, obligations or other liabilities under the same contract or other agreement to more than one transferee.

(2) A provision referred to in subclause (1) which relates to a particular order may, if the regulations so provide, take effect as from the date of the order or a later day.

(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--

(a) to affect, in a manner prejudicial to any person (other than the State, an authority of the State, a local health district or a statutory health corporation), the rights of that person existing before the date of its publication in the Gazette, or

(b) to impose liabilities on any person (other than the State, an authority of the State, a local health district or a statutory health corporation) in respect of anything done or omitted to be done before the date of its publication in the Gazette.

(4) A provision referred to in subclause (1) has, if the regulations so provide, effect despite any other clause of this Schedule.