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EXISTING NHMRC ACT |
NEW NHMRC ACT |
RATIONALE |
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ROLE OF
MINISTER |
|
Appointments |
Minister appoints CEO, all Council and Principal
Committee members and Commissioner of Complaints. |
Same. |
No change needed. |
|
Establishment of Principal Committees |
Minister must establish Research Committee and AHEC
and Minister can determine additional functions for these PCs. Minister can establish other Principal
Committees and determine their functions. |
Same. |
No change needed. |
|
Referral of matters |
Minister may refer to Council matters within the
scope of its functions. |
Same – only Minister may
now also refer to CEO and Principal Committees. |
The NHMRC now comprises
the CEO (and staff), Council and Committees.
It is therefore appropriate that the Minister be able to refer matters
to any of the arms of the NHMRC. |
|
Directions |
Minister may give written directions to the Council
re performance of its functions and exercise of its powers.May not direct on certain matters. Directions must
be tabled in Parliament. |
Same – only now Minister
may also direct CEO and Principal Committees.Same conditions on power
(i.e. what Minister can’t direct on) and same requirements for tabling. |
As above. |
|
Delegations |
Minister may delegate to Secretary of Department. |
Minister may delegate to
CEO. |
Reflects change in governance arrangements. |
|
NHMRC |
|
Establishment of NHMRC |
NHMRC (Council) is a body
corporate. |
NHMRC comprises the CEO,
Council, Committees and staff and is proposed to be a prescribed agency under
the Financial Management and
Accountability Act 1997. Council is no longer a body corporate. |
Currently the Council’s
governance structure is a hybrid between models under the FMA Act and CAC
Act. The changes make it clear that
the NHMRC is an FMA Agency and provide clarity regarding functions of each of
the components of the NHMRC, accountabilities and reporting lines. |
|
CEO |
|
Functions of CEO |
CEO is executive officer
of Council with responsibility for day to day activities. |
CEO essentially has the
old functions of the Council as well as any other functions conferred by the
Minister or legislation. |
Reflects change in
governance arrangements. The CEO will
be ultimately responsible to the Minister. The Council (and Committees) will provide
expert scientific advice to the CEO to enable the CEO to fulfill his/her
statutory functions. |
|
Appointment |
Appointed by the Minister
Full time – up to 5 years
Remuneration set by the
Remuneration Tribunal. |
Same. |
No change needed. |
|
Consultation on appointment |
No requirements for
consultation. |
Minister must consult
appropriately before appointing CEO. |
Introduces consistency
with other appointments – Minister must consult appropriately in relation to
all appointments. |
|
Resignation and acting appointment |
CEO can resign by notice
to Minister. Minister may appoint a
person to act as CEO. |
Same. |
No change needed. |
|
Referral of matters to CEO by Minister |
Minister can refer
matters to Council (but not to the CEO). |
Minister may refer
matters to the CEO as well as Council. |
Consistent with revised
governance arrangements. |
|
Directions to CEO by Minister |
Minister can direct
Council but not CEO (although Council can direct CEO). |
Minister may direct the
CEO as well as Council. |
Consistent with revised
governance arrangements (same limits on powers to direct as previously
existed). |
|
Staff and consultants |
|
Staff |
Staff are appointed under Public Service Act 1999.
Staff made available
through arrangements with Secretary to the Department. |
Same.
CEO and staff are a Statutory Agency for the
purposes of the Public Service Act
1999. |
CEO will be able to
directly engage employees rather than rely on arrangements with the Secretary
to the Department. |
|
Consultants |
Council can arrange with
the Secretary of the Department for consultants to be engaged. |
CEO may engage
consultants to perform services related to the CEO’s functions. |
CEO will be responsible
for the budget of the NHMRC and will engage consultants directly rather than
via the Department. |
|
Other arrangements |
Council may arrange for
the services of a State or Territory employee. |
Same – only CEO may arrange for the services of a
State or Territory employee rather than Council. |
CEO will be responsible for all staffing matters
including making arrangements for services of State and Territory employees. |
|
Council |
|
Functions of Council - Summary |
Functions of Council
include, for example, issuing guidelines, making recommendations to
Commonwealth on expenditure etc.. |
Functions of the Council are:
- to provide advice to the CEO in relation to the
performance of his or her functions
- any other functions conferred on the Council in writing by
the Minister after consulting the CEO
- any other functions conferred on the Council by this Act,
the Regulations or any other law.
|
Consistent with the new
governance arrangements, the Council will focus on the provision of expert
advice to the CEO who will have overall responsibility for the management of
the NHMRC. |
|
Size of Council |
Minimum 23, maximum 30+
(currently 29). |
Minimum 19, maximum 24. |
Reduces size of Council consistent with advice of
reviews regarding the size of the Council limiting its effectiveness. |
Membership of Council
|
Chair is a member of Council. |
Same. |
No change needed. |
|
CEO is a member of
Council. |
CEO is not a member of
Council. |
Reflects revised
governance arrangements – role of Council is to provide advice to the CEO so
it is no longer appropriate for the CEO to be on Council. |
|
Each Chairperson of a
Principal Committee who is not otherwise a member of the Council. |
Principal Committee
Chairs are drawn from Council membership and not vice versa. |
Current arrangements mean
that the membership of Council continues to expand as more Principal
Committees are appointed. New
arrangements ensure that Principal Committee (PC) Chairs are Council members
without continuing to expand Council membership. If no-one on Council is appropriately
qualified to Chair a PC then another person may be appointed provided that a
member of Council is on the PC. |
Officer of each State and
Territory health instrumentality.
An officer of the
Department. |
The Chief Medical Officer
for each State and Territory.
The Chief Medical Officer
for the Commonwealth. |
Ensures that the most
senior medical officer from each jurisdiction is on Council. |
|
A person having knowledge
of the health needs of Aboriginal persons or Torres Strait Islanders. |
A person with expertise
in the health needs of Aboriginal persons and Torres Strait Islanders. |
Minor wording changes
only – same expertise required on Council. |
A person with a
background in, & knowledge of, consumer issues.
A person with a
background in, & knowledge of, business. |
A person with expertise
in consumer issues.
A person with expertise
in business. |
Minor wording changes
only – same expertise required on Council. |
A person with expertise
in health care training.
A person with knowledge
of professional medical standards and expertise in post-graduate medical
training.
A person with a
background in & knowledge of medical profession.
A person with a
background in & knowledge of nursing profession.
An eminent scientist (i)
who has knowledge of public health research and medical research issues; and
(ii) who has no current connection with the Council.
A person with a
background of & knowledge of public health issues.
A person with background in, and knowledge of, the
trade union movement.
A person with knowledge of the needs of users of
social welfare services.
A person with knowledge of environmental issues.
No more than 2 other
persons with expertise relevant to the Council. |
At least 6, but not more
than 11, persons with expertise in one or more of the following:
(i)
health care training
(ii)
professional medical standards
(iii)
the medical profession and post-graduate medical training;
(iv)
the nursing profession;
(v)
public health research and medical research issues;
(vi)
public health
(vii)
ethics relating to research involving humans (no
equivalent on existing Council but Chair of AHEC must be on Council).
Other members may be
appointed as appropriate. |
Provides greater
flexibility by listing the different types of expertise required (based on
current membership of Council), and enabling members to be appointed who are
most appropriate to the focus of Council for a particular triennium. |
|
Appointment of Chair of Council |
Minister appoints. |
Same. |
No change needed. |
|
Minister must consult
Health Minister of each State/Territory. |
Minister must consult
appropriately. |
Provides greater
flexibility and widens the potential pool of people that the Minister
consults with. |
|
Person must have
expertise relevant to functions of Council. |
No express requirement re
expertise. |
Functions of Council are
now to advise the CEO – therefore it provides flexibility to appoint the most
appropriate person to the position. |
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Appointment of other Council members |
Minister appoints Council
members. |
Same. |
No change needed. |
|
For certain members,
nominations must be received from prescribed agencies. |
Minister must consult
appropriately for all members. |
Rather than prescribing a
finite list of people from whom nominations must be sought (which may become
dated or change as the need for different expertise on the Council changes)
the Minister must consult appropriately.
As a matter of administrative practice, it is intended that the CEO of
the NHMRC will continue to write to a wide range of organisations seeking
input regarding Council members. |
|
Acting appointment |
If vacancy on Council,
Minister can appoint acting person. |
Same. |
No change needed. |
|
Remuneration |
Determined by the
Remuneration Tribunal (yearly amount for Chair, sitting fees for others). |
Same. |
No change needed. |
|
Leave of absence |
Minister can grant Chair
and other members of Council leave. |
Now CEO grants leave to
Council members. |
This is an essentially
administrative task and does not require the Minister’s involvement. |
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Resignation and termination |
Council member can resign
by giving notice to Minister.
Minister may/must terminate appointments of Council
members in certain circumstances. |
Same. |
No change needed. |
|
Disclosure of interests |
Must disclose to Minister
any interests within 1 month of being appointed.
Re. ongoing issues, must
disclose to Minister or Chair, must not be present or take part in decision
(unless Minister or Chair otherwise determines). |
Must disclose to CEO any
interests prior to being appointed.
Must disclose to CEO or
Chair, must not be present or take part in decision (unless Chair or Chair
otherwise determines). |
This is an essentially
administrative task and does not require the Minister’s involvement. |
|
Procedures |
Council establishes
procedures for Council and Committees. |
CEO establishes
procedures. |
Consistent with revised
governance arrangements. |
|
Meetings of Council |
Chair must convene at
least one meeting per calendar year or if at least 10 members request
one. Provision also details meeting
requirements (eg Chair presiding, notice of meetings etc). |
New provision simply
provides that the Chair must convene at least one Council meeting per
calendar year. Details regarding
meetings will be included in procedures issued by the CEO. |
Consistent with revised
governance arrangements. |
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PRINCIPAL
COMMITTEES |
|
Establishment and functions of Principal Committees
|
Minister must establish Research Committee (RC) and
Australian Health Ethics Committee (AHEC).
Functions of RC and AHEC are set out in
legislation.
Minister can also determine additional functions
after seeking advice of Council. |
Same – only Minister must
consult CEO (rather than Council) re establishment and functions. |
Consistent with revised
governance arrangements. |
Minister
may establish such other PCs as he wishes and can also abolish them.
Minister
must determine name and functions of PCs after consulting Council.
Minister can determine additional functions for RC
and AHEC after consulting Council. |
Same – only now Minister
consults CEO. |
Consistent with revised
governance arrangements. |
|
Chair of Principal Committees |
Minister appoints on a
part time basis. |
Same. |
No change needed. |
|
Chairs of Principal Committees are automatically on
Council. |
Chairs of Principal
Committees are drawn from Council and if there is no-one with sufficient
experience, the Minister may appoint someone else provided that a member of
the Principal Committee (other than the Chair) is on the Council. |
New arrangements ensure
that PC Chairs are Council members without continuing to expand Council
membership. |
|
Appointment of members of Principal Committees |
Minister appoints on part time basis for up to 3
years. |
Same. |
No change needed. |
|
Australian Health Ethics Committee (AHEC) |
Minister must consult State and Territory Health
Ministers before appointing Chair.
Minister must seek nominations from prescribed
bodies before appointing members. |
Minister now appoints all members (including Chair)
after consulting appropriately. |
Changes are consistent with changes to appointment
of Council and other PCs.
Rather than prescribing a finite list of people
from whom nominations must be sought (which may become dated or change as the
need for different expertise on the Council changes) the Minister must
consult appropriately. As a matter of
administrative practice, it is intended that the CEO of the NHMRC will continue
to write to a wide range of organisations seeking input regarding Council
members. |
|
Embryo Research Licensing
Committee (ERLC) |
Established under
separate Act. |
Same. |
No change needed. |
|
WORKING COMMITTEES |
|
Establishment and functions |
Council or a Principal Committee may establish
working committees and may also determine functions and procedures. |
CEO responsible for
establishing and determining functions and procedures. |
Consistent with revised governance
arrangements. CEO is responsible for
the resources of the NHMRC and it is therefore appropriate that the CEO make
the ultimate decision regarding whether money will be expended on
the establishment of a working committee (based on advice from Council and
principal Committees). |
|
Appointment of members |
Appointed by Council or Principal Committee. |
Appointed by CEO. |
Consistent with revised governance arrangements. |
|
Remuneration |
Determined by Remuneration Tribunal. |
Same. |
No change needed. |
|
Procedures, leave of absence, resignation,
termination etc |
Chair of Council generally responsible. |
CEO responsible. |
Consistent with revised governance arrangements. |
|
Abolition of Working Committee |
Council or a Principal Committee may abolish
Working Committees. |
CEO responsible for
abolishing. |
CEO responsible for establishing
Working Committees and is therefore also responsible for abolishing. |
|
MANAGEMENT COMMITTEE |
|
Executive Committee |
Council may establish Executive Committee to act as
its executive arm. |
References to Executive
Committee removed. |
NHMRC hasn’t had an Executive Committee for many
years and as such it was no longer considered necessary. However it is proposed that a Management
Advisory Committee be established administratively. |
|
COMMISSIONER
OF COMPLAINTS |
|
Appointment |
Minister must appoint after consulting with
Council. |
Same – only Minister appoints after consulting with
CEO. |
Consistent with revised governance arrangements. |
|
Expertise |
Commissioner must have expertise in scientific
research, medical research or public health research. |
Commissioner must have appropriate expertise. |
Currently Minister can only appoint a person who
has expertise in scientific research, medical research or public health
research. However, it may be just as
appropriate for a Commissioner to have experience in, for example, mediation
or dispute resolution. This provides greater flexibility and
ensures that the best person for the position can be appointed based on
appropriate expertise. |
|
Functions |
Investigate complaints, perform other functions
conferred on Commissioner. |
Same in substance. |
References to Council have been replaced with
references to CEO consistent with governance changes. |
|
Appointment, term, terms and conditions, leave,
disclosures acting appointments |
Minister
must appoint, determine terms and conditions and period of appointment.
Minister
may appoint a person to act as Commissioner.
Minister
may grant leave and may terminate appointment on certain grounds.
Commissioner must disclose interests to Minister. |
Same. |
No change needed. |
|
Staff and facilities |
Commissioner may make arrangements with Council for
staff and facilities. |
Commissioner may make
arrangements with CEO for staff and facilities. |
Consistent with revised governance arrangements. |
|
Who may complain, grounds of complaint, making a
complaint, investigation of complaints, procedures and powers |
Detailed in legislation. |
Substantially the same. |
References to Council have been replaced with
references to CEO consistent with governance changes. |
|
Annual report of the Commissioner |
Reports to the Council after the end of the
calendar year. |
Reports to the CEO after
the end of the financial year. |
Aligns with change to reporting timeframe for CEO’s report
to the Minister (this has also been changed to financial year). |
|
Protection of personal information and protection
from civil actions |
Detailed in the legislation. |
Same. |
No change needed. |
|
NHMRC
GUIDELINES AND RECOMMENDATIONS |
|
Making of regulatory recommendations and issuing of
guidelines |
Council makes regulatory recommendations and issues
guidelines. |
CEO makes regulatory
recommendations and issues guidelines precisely as developed by Council and
provided to the CEO (in the case of human research guidelines, they must be
issued as developed by AHEC and provided to Council). |
Consistent with the
changed governance arrangements, the CEO is responsible for actually making
recommendations and issuing guidelines in the name of the NHMRC. The CEO does so on the basis of advice from
Council (who may, in turn, base their advice on advice from a Principal
Committee). |
|
Consultation prior to making recommendations or
issuing guidelines |
Council must publish a notice, prepare a draft,
invite submissions, have regard to submissions etc. |
Same. |
Same consultation process
is retained. |
|
Interim recommendations and guidelines |
Council may issue interim recommendations or
guidelines as a matter of urgency.
After issuing them, Council must publish a notice setting out reasons
for decision, decision and inviting submissions, Council may affirm, vary or
revoke interim recommendations or guidelines within 30 days. After 30 days they are automatically revoked. |
CEO may issue interim
recommendations or guidelines as a matter of urgency. |
Same process is retained
for consultation only now Council must advise CEO within 30 days of the end
of the consultation period re whether to affirm or revoke and CEO has another
15 days to consider. After 45 days
they are automatically revoked.
Council can also initiate
the making or urgent interim recommendations and guidelines by providing
advice to the CEO. |
|
Revocation of Guidelines |
No express mechanism to
revoke. AIA requires that same process
be employed for revoking as was employed for making. |
CEO has the power to revoke guidelines on the
advice of Council. |
A new section has been
included providing that the Council may, without undertaking consultation,
advise the CEO to revoke guidelines other than human research
guidelines. In relation to human
research guidelines, AHEC may, without undertaking consultation, advise the
Council to advise the CEO to revoke human research guidelines. This is a new
section establishing a process for revoking guidelines, where no specified
process previously existed. |
|
Approval of third party guidelines |
Council may approve
guidelines developed by third parties. Legislation describes process for
this. |
Same – only CEO may approve guidelines developed by
third parties. |
Consistent with revised
governance arrangements. Process essentially remains the same. |
|
Dispensing with consultation |
Council may dispense with
consultation if matter is of minor significance only. |
Same. |
No change needed. |
|
Procedures to assist people to make submissions |
Council must develop and
publish procedures. |
Same – only CEO must develop and publish
procedures. |
Consistent with revised
governance arrangements. |
|
PRESCRIBED ACTIVITIES |
|
Prescribed activities |
Council may engage in
prescribed activities. |
Provisions for prescribing activities have been
removed. |
In the life of the NHMRC
no activities have ever been prescribed.
These provisions were not, therefore considered necessary to be
retained. |
|
MEDICAL RESEARCH ENDOWMENT FUND |
|
Establishment, Credits, purpose of account, gifts
or bequests etc |
Details set out in Act. |
Same. |
No change needed. |
|
Timetables |
Council must publish a timetable and procedures to
assist Council to make recommendations on the application of the Account. |
Same – only now CEO must
publish a timetable and procedures. |
Consistent with revised
governance arrangements. |
|
Notification of outcome of grants |
CEO had to notify by date
set out in published timetable. |
Legislation no longer
requires this. |
This addresses practical
difficulties experienced by NHMRC in providing advice on a set date when the
length of the decision making process by Committees is uncertain. It is
intended that the NHMRC will continue to
articulate in guidelines when
recipients may expect to be notified. |
|
Transitional provisions |
Old transitional
provision for when old Medical Research Endowment Act 1937 was repealed. |
Provision deleted. |
No longer relevant. Relevant new provisions have been added to
the Bill. |
|
PLANNING AND REPORTING |
|
Strategic plans. |
Council must develop a strategic plan and consult
Minister. |
Same – only now the CEO must develop the plan and
consult Minister. |
Minor change to reflect
revised governance arrangements. |
|
Council must give Minister written review re
success in implementing plan. |
Same – only now CEO must give Minister written review. |
Minor change to reflect
revised governance arrangements. |
|
Minister can request Council to give a variation of
the plan. |
Same – only now Minister can request CEO to vary
plan. |
Minor change to reflect
revised governance arrangements. |
|
Annual reports of NHMRC |
Council must give written report to Minister after
the end of each calendar year.
Contents of Report are detailed in legislation. |
CEO must give written report to Minister after the
end of each financial year.
Contents
of report remain the same (minor changes to wording to reflect changed
governance arrangements). |
Currently Council reports on a calendar year basis
yet Health reports, in relation to the NHMRC, on a financial year basis. This amendment resolves this difficulty by
the CEO reporting to the Minister on a financial year basis. |
|
MISCELLANEOUS |
|
Confidential commercial information |
Requirements detailed in
legislation. |
Essentially the same. |
Minor changes reflect new
governance arrangements (including replacement of references to Council with
references to CEO). |
|
Exemption from taxation |
Council exempt from tax. |
Provision deleted. |
No longer necessary as
NHMRC will be part of Commonwealth. |
|
Protection from civil actions |
No civil proceedings may
be bought against Council, CEO etc. |
Provision deleted. |
NHMRC will now be legally
part of the Commonwealth and this diminishes the need for legislation
protection. E.g. Commonwealth can
indemnify, insure etc.. |
|
Delegations |
Council can delegate to
Chair, Principal Committee, Executive Committee, Working Committee, CEO.
Principal Committee may
delegate to working committee. |
Minister can delegate to CEO
CEO can delegate to
Council, Committees, staff. Council
can delegate to the Chair of the Council or a Committee (other than Licensing
Committee). Principal Committee may delegate to working committee. Delegate
must act in accordance with any directions issued. |
Ensures that delegations
can be put in place where needed. |
|
Consequential amendments to other Acts |
Acts such as the AIHW
Act, the FSANZ Act, the FOI Act, the Privacy Act and the RIHE Act currently
reference the NHMRC. |
References to the NHMRC
are replaced with references to the CEO. |
Changes are made where
appropriate and where this is necessary to reflect the new governance
arrangements. |