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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales Mental Health Commission Bill 2011 Explanatory note This explanatory note relates to this Bill as introduced into Parliament. Overview of Bill The objects of this Bill are: (a) to establish the Mental Health Commission of New South Wales (the Commission) as an independent statutory body and to provide for its functions, and (b) to provide for the appointment of a Mental Health Commissioner and one or more Deputy Mental Health Commissioners, and (c) to establish the Mental Health Community Advisory Council to advise the Commission on mental health issues, and (d) to make consequential amendments to the Public Finance and Audit Act 1983 and the Statutory and Other Offices Remuneration Act 1975. Outline of provisions Part 1 Preliminary Clause 1 sets out the name (also called the short title) of the proposed Act. b2011-111-22.d13a Mental Health Commission Bill 2011 Explanatory note Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed by proclamation. Clause 3 sets out the object of the proposed Act. Clause 4 defines certain words and expressions used in the proposed Act. Part 2 Mental Health Commission Clause 5 constitutes the Commission as a statutory body that is not and does not represent the Crown. Clause 6 provides for the Governor to appoint a Mental Health Commissioner (the Commissioner) who will exercise the functions of the Commission. Clause 7 provides for the Governor to appoint one or more Deputy Mental Health Commissioners (a Deputy Commissioner). Clause 8 requires the Commissioner or at least one Deputy Commissioner to be a person who has or has had a mental illness. Clause 9 provides that the Commission is subject to the direction and control of the Minister, except in relation to the preparation and contents of a draft strategic plan for the mental health system in New South Wales or any other report prepared by the Commission. Clause 10 establishes the Mental Health Community Advisory Council to advise the Commission on any mental health issue it considers appropriate or that is referred to it by the Commission. Part 3 Functions of Commission Clause 11 sets out the principles that are to govern the work of the Commission, which are as follows: (a) people who have a mental illness, wherever they live, should have access to the best possible mental health care and support, (b) people who have a mental illness and their families and carers should be treated with respect and dignity, (c) the primary objective of the mental health system should be to support people who have a mental illness to participate fully in community life and lead meaningful lives, (d) the promotion of good mental health and the effective provision of mental health services are the shared responsibility of the government and non-government sectors, Explanatory note page 2 Mental Health Commission Bill 2011 Explanatory note (e) an effective mental health system requires: (i) a co-ordinated and integrated approach across all levels of government and the non-government sector, including in the areas of health, housing, employment, education and justice, and (ii) communication and collaboration between people who have a mental illness and their families and carers, providers of mental health services and the whole community. Clause 12 sets out the functions of the Commission, which are as follows: (a) to prepare, in consultation with providers of mental health and related services and government agencies, a draft strategic plan for the mental health system in New South Wales for submission to the Minister for approval, (b) to monitor and report on the implementation of the strategic plan, (c) to review and evaluate, and report and advise on, mental health services and other services and programs provided to people who have a mental illness, and other issues affecting people who have a mental illness, (d) to promote and facilitate the sharing of knowledge and ideas about mental health issues, (e) to undertake and commission research, innovation and policy development in relation to mental health issues, (f) to advocate for and promote the prevention of mental illness and early intervention strategies for mental health, (g) to advocate for and promote the general health and well-being of people who have a mental illness and their families and carers, (h) to educate the community about mental health issues, including for the purpose of reducing the stigma associated with mental illness and discrimination against people who have a mental illness, (i) such other functions relating to mental health as may be prescribed by the regulations. Clause 13 enables the Minister to direct the Commission to prepare a special report on any significant systemic issue affecting people who have a mental illness (not being an issue that relates only to a particular specialist mental health service). The Minister may table a special report in Parliament. Clause 14 provides that the Commission may, at any time, prepare a report on the implementation of the strategic plan or a systemic issue relating to the mental health system or affecting people who have a mental illness. Such a report will be tabled in Parliament. Clause 15 enables the Commission to delegate any of its functions to a Deputy Commissioner or a member of staff of the Commission. Explanatory note page 3 Mental Health Commission Bill 2011 Explanatory note Part 4 Miscellaneous Clause 16 requires the Commission and public sector agencies that provide mental health services or are involved in dealing with people who have a mental illness to work co-operatively in the exercise of their respective functions. Public sector agencies should have regard to the principles governing the Commission's work in exercising their functions. The Commission may request a public sector agency to provide the Commission with any information held by the agency that is reasonably required by the Commission for the exercise of its functions and the agency must comply with such a request if it is reasonable to do so. Clause 17 provides for the tabling in Parliament of reports prepared by the Commission. Clause 18 protects the Commissioner, Deputy Commissioners, members of the Mental Health Community Advisory Council or persons acting under the direction of the Commission or a Council member from personal liability for acts done or omitted to be done in good faith. Clause 19 enables the Governor to make regulations for the purposes of the proposed Act. Clause 20 provides for the review of the proposed Act in 5 years. The Minister is also required to review the work of the Commission every 5 years. Schedule 1 Provisions relating to Commissioner and Deputy Commissioners Schedule 1 contains provisions relating to the office of the Mental Health Commissioner and Deputy Mental Health Commissioners. Schedule 2 Savings, transitional and other provisions Schedule 2 provides for the making of regulations of a savings and transitional nature consequent on the enactment of the proposed Act. Schedule 3 Amendment of other legislation Schedule 3.1 amends the Public Finance and Audit Act 1983 to provide for financial auditing and annual reporting by the Mental Health Commission. Schedule 3.2 amends the Statutory and Other Offices Remuneration Act 1975 to provide that the remuneration and allowances payable to the Mental Health Commissioner and any full-time Deputy Mental Health Commissioner will be determined by the Statutory and Other Offices Remuneration Tribunal. Explanatory note page 4 First print New South Wales Mental Health Commission Bill 2011 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Object of Act 2 4 Definitions 2 Part 2 Mental Health Commission 5 Constitution of Mental Health Commission 4 6 Mental Health Commissioner 4 7 Deputy Mental Health Commissioners 4 8 Commissioner or Deputy Commissioner to have personal experience of mental illness 4 9 Ministerial control 5 10 Mental Health Community Advisory Council 5 b2011-111-22.d13a Mental Health Commission Bill 2011 Contents Page Part 3 Functions of Commission 11 Principles governing work of Commission 6 12 Functions of Commission 6 13 Special reports 7 14 Other reports 8 15 Delegation of Commission's functions 8 Part 4 Miscellaneous 16 Co-operation between Commission and public sector agencies 9 17 Provisions relating to reports 9 18 Personal liability 10 19 Regulations 10 20 Review of Commission and Act 10 Schedule 1 Provisions relating to Commissioner and Deputy Commissioners 11 Schedule 2 Savings, transitional and other provisions 13 Schedule 3 Amendment of other legislation 14 Contents page 2 New South Wales Mental Health Commission Bill 2011 No , 2011 A Bill for An Act to establish and confer functions on the Mental Health Commission; and for other purposes. Clause 1 Mental Health Commission Bill 2011 Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Mental Health Commission Act 2011. 4 2 Commencement 5 This Act commences on a day or days to be appointed by proclamation. 6 3 Object of Act 7 The object of this Act is to establish the Mental Health Commission of 8 New South Wales for the purpose of monitoring, reviewing and 9 improving the mental health system and the mental health and 10 well-being of the people of New South Wales. 11 4 Definitions 12 (1) In this Act: 13 Commission means the Mental Health Commission of New South 14 Wales constituted by this Act. 15 Commissioner means the Mental Health Commissioner appointed by 16 the Governor under section 6. 17 Deputy Commissioner means a Deputy Mental Health Commissioner 18 appointed by the Governor under section 7. 19 function includes a power, authority or duty, and exercise a function 20 includes perform a duty. 21 non-government sector includes the private sector. 22 public sector agency means any of the following: 23 (a) a Division of the Government Service, 24 (b) a NSW Government agency, 25 (c) the NSW Police Force, 26 (d) the Teaching Service, 27 (e) a local health district or statutory health corporation (within the 28 meaning of the Health Services Act 1997), 29 (f) a local council or other local authority, 30 (g) any other person or body prescribed by the regulations. 31 strategic plan means a strategic plan for the mental health system in 32 New South Wales prepared by the Commission and approved by the 33 Minister. 34 Page 2 Mental Health Commission Bill 2011 Clause 4 Preliminary Part 1 (2) A reference in this Act to a public sector agency includes a reference to 1 the person who is the chief executive officer (however described) of the 2 agency. 3 (3) Notes included in this Act do not form part of this Act. 4 Page 3 Clause 5 Mental Health Commission Bill 2011 Part 2 Mental Health Commission Part 2 Mental Health Commission 1 5 Constitution of Mental Health Commission 2 (1) There is constituted by this Act a corporation with the corporate name 3 of the Mental Health Commission of New South Wales. 4 (2) The Commission is not and does not represent the Crown. 5 (3) The Commission has the functions conferred or imposed on it by or 6 under this or any other Act. 7 (4) The functions of the Commission are exerciseable by the 8 Commissioner, and any act, matter or thing done in the name of, or on 9 behalf of, the Commission by the Commissioner, or with the authority 10 of the Commissioner, is taken to have been done by the Commission. 11 (5) The Commission cannot employ any staff. 12 Note. Staff may be employed under Chapter 1A of the Public Sector 13 Employment and Management Act 2002 in the Government Service to enable 14 the Commission to exercise its functions. 15 6 Mental Health Commissioner 16 (1) The Governor may appoint a Mental Health Commissioner. 17 (2) The Commissioner holds office for the period (not exceeding 5 years) 18 specified in the instrument of appointment and may not be appointed for 19 more than 2 successive terms of office. 20 Note. Schedule 1 contains ancillary provisions relating to the Commissioner. 21 7 Deputy Mental Health Commissioners 22 (1) The Governor may appoint one or more Deputy Mental Health 23 Commissioners. 24 (2) A Deputy Commissioner holds office for the period (not exceeding 25 3 years) specified in the instrument of appointment and may not be 26 appointed for more than 2 successive terms of office. 27 Note. Schedule 1 contains ancillary provisions relating to Deputy 28 Commissioners. 29 8 Commissioner or Deputy Commissioner to have personal experience of 30 mental illness 31 The Commissioner or at least one Deputy Commissioner must be a 32 person who has or has had a mental illness. 33 Page 4 Mental Health Commission Bill 2011 Clause 9 Mental Health Commission Part 2 9 Ministerial control 1 The Commission is subject to the direction and control of the Minister, 2 except in relation to the preparation and contents of the draft strategic 3 plan or any other report prepared by the Commission. 4 10 Mental Health Community Advisory Council 5 (1) There is to be a Mental Health Community Advisory Council. 6 (2) The function of the Council is to advise the Commission on any mental 7 health issue it considers appropriate or that is referred to it by the 8 Commission. 9 (3) The Council is to consist of the Commissioner and such persons as are 10 appointed by the Minister (the appointed members). The Minister is to 11 consider any recommendations made by the Commission in relation to 12 the appointment of persons to the Council. 13 (4) The Minister must ensure that the composition of the Council reflects 14 the diversity of the community and includes representatives of the 15 following groups: 16 (a) people who have a mental illness and their families and carers, 17 (b) mental health service providers, 18 (c) people living in regional and remote New South Wales, 19 (d) culturally and linguistically diverse communities, 20 (e) Aboriginal persons. 21 (5) An appointed member is to be appointed to the Council for a period of 22 3 years or less. 23 (6) One of the appointed members of the Council is, by the member's 24 instrument of appointment or a further instrument signed by the 25 Minister, to be appointed as the chairperson of the Council. 26 (7) The procedure for the calling of meetings of the Council and for the 27 conduct of those meetings is to be determined by the Commissioner. 28 (8) An appointed member of the Council is entitled to be paid such fees and 29 allowances (if any) as the Minister may from time to time determine for 30 the member. 31 (9) The Minister may remove an appointed member from the Council at 32 any time. 33 Page 5 Clause 11 Mental Health Commission Bill 2011 Part 3 Functions of Commission Part 3 Functions of Commission 1 11 Principles governing work of Commission 2 The following principles are to govern the work of the Commission: 3 (a) people who have a mental illness, wherever they live, should 4 have access to the best possible mental health care and support, 5 (b) people who have a mental illness and their families and carers 6 should be treated with respect and dignity, 7 (c) the primary objective of the mental health system should be to 8 support people who have a mental illness to participate fully in 9 community life and lead meaningful lives, 10 (d) the promotion of good mental health and the effective provision 11 of mental health services are the shared responsibility of the 12 government and non-government sectors, 13 (e) an effective mental health system requires: 14 (i) a co-ordinated and integrated approach across all levels of 15 government and the non-government sector, including in 16 the areas of health, housing, employment, education and 17 justice, and 18 (ii) communication and collaboration between people who 19 have a mental illness and their families and carers, 20 providers of mental health services and the whole 21 community. 22 12 Functions of Commission 23 (1) The Commission has the following functions: 24 (a) to prepare, in consultation with providers of mental health and 25 related services and government agencies, a draft strategic plan 26 for the mental health system in New South Wales for submission 27 to the Minister for approval, 28 (b) to monitor and report on the implementation of the strategic plan, 29 (c) to review and evaluate, and report and advise on, mental health 30 services and other services and programs provided to people who 31 have a mental illness, and other issues affecting people who have 32 a mental illness, 33 (d) to promote and facilitate the sharing of knowledge and ideas 34 about mental health issues, 35 (e) to undertake and commission research, innovation and policy 36 development in relation to mental health issues, 37 Page 6 Mental Health Commission Bill 2011 Clause 13 Functions of Commission Part 3 (f) to advocate for and promote the prevention of mental illness and 1 early intervention strategies for mental health, 2 (g) to advocate for and promote the general health and well-being of 3 people who have a mental illness and their families and carers, 4 (h) to educate the community about mental health issues, including 5 for the purpose of reducing the stigma associated with mental 6 illness and discrimination against people who have a mental 7 illness, 8 (i) such other functions relating to mental health as may be 9 prescribed by the regulations. 10 (2) In exercising its functions under this Act, the Commission is: 11 (a) to focus on systemic mental health issues, and 12 (b) to take into account co-morbid issues associated with mental 13 illness, such as drug and alcohol use and disability, and 14 (c) to take into account issues related to the interaction between 15 people who have a mental illness and the criminal justice system, 16 and 17 (d) to engage and consult with: 18 (i) people who have a mental illness and their families and 19 carers, and 20 (ii) the government and non-government sectors, and 21 (iii) the whole community, and 22 (e) to take into account the particular views and needs of different 23 sections of the community, including Aboriginal communities, 24 culturally and linguistically diverse communities and regional 25 and remote communities. 26 13 Special reports 27 (1) The Minister may direct the Commission to prepare a special report on 28 any significant systemic issue affecting people who have a mental 29 illness (not being an issue that relates only to a particular specialist 30 mental health service). 31 (2) The Commission may include in a special report a recommendation that 32 the report be made public. 33 (3) The Minister may cause a copy of a special report to be provided to the 34 Presiding Officer of each House of Parliament. 35 Page 7 Clause 14 Mental Health Commission Bill 2011 Part 3 Functions of Commission 14 Other reports 1 (1) The Commission may, at any time, prepare a report on any of the 2 following: 3 (a) the implementation of the strategic plan, 4 (b) a systemic issue relating to the mental health system or affecting 5 people who have a mental illness. 6 (2) The Commission is to notify the Minister before preparing a report on a 7 systemic issue referred to in subsection (1) (b). 8 (3) In the course of preparing a report on a systemic issue referred to in 9 subsection (1) (b), the Commission is to consult with any public sector 10 agencies and non-government agencies that the Commission considers 11 are significantly affected by the issues contained in the report, including 12 by providing a draft report to, and considering submissions by, the 13 agency. 14 (4) The Commission must provide the Minister with a copy of any report 15 prepared under this section and the Minister must cause a copy of the 16 report to be provided to the Presiding Officer of each House of 17 Parliament as soon as practicable after receiving the report from the 18 Commission. 19 15 Delegation of Commission's functions 20 The Commission may delegate any of its functions, other than this 21 power of delegation, to a Deputy Commissioner or a member of staff of 22 the Commission. 23 Note. Section 5 (4) provides that the Commissioner acts for the Commission. 24 Page 8 Mental Health Commission Bill 2011 Clause 16 Miscellaneous Part 4 Part 4 Miscellaneous 1 16 Co-operation between Commission and public sector agencies 2 (1) It is the duty of the Commission and public sector agencies that provide 3 mental health services or are involved in dealing with people who have 4 a mental illness to work co-operatively in the exercise of their 5 respective functions. 6 (2) A public sector agency should have regard to the principles set out in 7 section 11 in exercising its functions. 8 (3) The Commission may enter into arrangements with any public sector 9 agency in relation to the provision by the agency of information that is 10 required by the Commission for the exercise of its functions. 11 (4) The Commission may request a public sector agency to provide the 12 Commission with any information held by the agency that is reasonably 13 required by the Commission for the exercise of its functions and the 14 agency must comply with such a request if it is reasonable to do so. 15 (5) Any dispute arising between the Commission and a public sector 16 agency about a request for information under subsection (4) is to be 17 resolved between the Minister administering this Act and the Minister 18 responsible for the public sector agency. 19 (6) Information provided to the Commission under this section is not to 20 include personal information within the meaning of the Health Records 21 and Information Privacy Act 2002. 22 17 Provisions relating to reports 23 (1) A copy of a report provided to the Presiding Officer of a House of 24 Parliament under this Act must be laid before that House within 25 15 sitting days of that House after it is received by the Presiding Officer. 26 (2) If a report includes a recommendation by the Commission that the 27 report be made public immediately, the Presiding Officer of a House of 28 Parliament may make it public whether or not that House is in session 29 and whether or not the report has been laid before that House. 30 (3) A report that is made public by the Presiding Officer of a House of 31 Parliament before it is laid before that House attracts the same 32 privileges and immunities as it would if it had been laid before that 33 House. 34 (4) A Presiding Officer need not inquire whether all or any conditions 35 precedent have been satisfied in relation to a report purporting to have 36 been provided to the Presiding Officer in accordance with this Act. 37 Page 9 Clause 18 Mental Health Commission Bill 2011 Part 4 Miscellaneous 18 Personal liability 1 A matter or thing done or omitted to be done by the Commission, the 2 Commissioner, a Deputy Commissioner, a member of the Mental 3 Health Community Advisory Council or a person acting under the 4 direction of the Commission or a Council member does not, if the 5 matter or thing was done or omitted to be done in good faith for the 6 purpose of executing this Act, subject the Commissioner, the Deputy 7 Commissioner, the member or the person so acting personally to any 8 action, liability, claim or demand. 9 19 Regulations 10 The Governor may make regulations, not inconsistent with this Act, for 11 or with respect to any matter that by this Act is required or permitted to 12 be prescribed or that is necessary or convenient to be prescribed for 13 carrying out or giving effect to this Act. 14 20 Review of Commission and Act 15 (1) As soon as possible after the period of 5 years from the commencement 16 of this Act, the Minister is to undertake the following reviews: 17 (a) a review of the work of the Commission taking into account the 18 functions of the Commission and the principles governing the 19 work of the Commission, 20 (b) a review of this Act to determine whether the policy objectives of 21 the Act remain valid and whether the terms of the Act remain 22 appropriate for securing those objectives. 23 (2) The Minister is to undertake a further review of the work of the 24 Commission at least once every 5 years after the first review. 25 (3) A report on the outcome of a review under this section is to be tabled in 26 each House of Parliament within 12 months after the end of the relevant 27 5-year period. 28 Page 10 Mental Health Commission Bill 2011 Provisions relating to Commissioner and Deputy Commissioners Schedule 1 Schedule 1 Provisions relating to Commissioner and 1 Deputy Commissioners 2 1 Basis of offices 3 (1) The office of Commissioner is a full-time office. 4 (2) The office of Deputy Commissioner may be a full-time or part-time 5 office. 6 (3) The holder of a full-time office is required to hold it on that basis, except 7 to the extent permitted by the Minister. 8 2 Remuneration 9 (1) The Commissioner and any full-time Deputy Commissioners are 10 entitled to be paid: 11 (a) remuneration in accordance with the Statutory and Other Offices 12 Remuneration Act 1975, and 13 (b) allowances as the Minister may from time to time determine. 14 (2) A part-time Deputy Commissioner is entitled to be paid such 15 remuneration and allowances as the Minister may from time to time 16 determine. 17 3 Acting Commissioner and Deputy Commissioners 18 (1) The Minister may appoint a person to act in the office of Commissioner 19 or the office of Deputy Commissioner during the illness or absence of, 20 or a vacancy in, that office. 21 (2) A person, while acting in the office of Commissioner or Deputy 22 Commissioner, has all the functions of the Commissioner or Deputy 23 Commissioner (as the case requires). 24 (3) The Minister may remove a person acting in the office of Commissioner 25 or Deputy Commissioner from that office at any time. 26 (4) A person acting in the office of Commissioner or Deputy Commissioner 27 is entitled to be paid such remuneration and allowances as are 28 determined by the Minister from time to time. 29 4 Vacancy in office 30 (1) The office of Commissioner or Deputy Commissioner becomes vacant 31 if the holder: 32 (a) dies, or 33 (b) completes a term of office and is not re-appointed, or 34 Page 11 Mental Health Commission Bill 2011 Schedule 1 Provisions relating to Commissioner and Deputy Commissioners (c) resigns the office by instrument in writing addressed to the 1 Governor, or 2 (d) is removed from office by the Governor under this clause, or 3 (e) becomes bankrupt, applies to take the benefit of any law for the 4 relief of bankrupt or insolvent debtors, compounds with his or her 5 creditors or makes an assignment of his or her remuneration for 6 their benefit, or 7 (f) is convicted in New South Wales of an offence that is punishable 8 by imprisonment for 12 months or more or is convicted outside 9 of New South Wales of an offence that, if committed in New 10 South Wales, would be an offence so punishable. 11 (2) The Governor may remove the Commissioner or a Deputy 12 Commissioner for misbehaviour, incompetence or incapacity. 13 5 Filling of vacancy 14 If the office of Commissioner or Deputy Commissioner becomes 15 vacant, a person is, subject to this Act, to be appointed to fill the 16 vacancy. 17 6 Effect of certain other Acts 18 (1) Chapter 1A of the Public Sector Employment and Management Act 19 2002 does not apply to or in respect of the appointment of the 20 Commissioner or a Deputy Commissioner. 21 (2) If by or under any Act provision is made: 22 (a) requiring a person who is the holder of a specified office to 23 devote the whole of his or her time to the duties of that office, or 24 (b) prohibiting the person from engaging in employment outside the 25 duties of that office, 26 the provision does not operate to disqualify the person from holding that 27 office and also the office of Commissioner or Deputy Commissioner or 28 from accepting and retaining any remuneration payable to the person 29 under this Act as Commissioner or Deputy Commissioner. 30 Page 12 Mental Health Commission Bill 2011 Savings, transitional and other provisions Schedule 2 Schedule 2 Savings, transitional and other 1 provisions 2 Part 1 General 3 1 Regulations 4 (1) The regulations may contain provisions of a savings or transitional 5 nature consequent on the enactment of the following Acts: 6 this Act 7 (2) Any such provision may, if the regulations so provide, take effect from 8 the date of assent to the Act concerned or a later date. 9 (3) To the extent to which any such provision takes effect from a date that 10 is earlier than the date of its publication on the NSW legislation website, 11 the provision does not operate so as: 12 (a) to affect, in a manner prejudicial to any person (other than the 13 State or an authority of the State), the rights of that person 14 existing before the date of its publication, or 15 (b) to impose liabilities on any person (other than the State or an 16 authority of the State) in respect of anything done or omitted to 17 be done before the date of its publication. 18 Page 13 Mental Health Commission Bill 2011 Schedule 3 Amendment of other legislation Schedule 3 Amendment of other legislation 1 3.1 Public Finance and Audit Act 1983 No 152 2 Schedule 2 Statutory bodies 3 Insert in alphabetical order: 4 Mental Health Commission 5 3.2 Statutory and Other Offices Remuneration Act 1975 (1976 6 No 4) 7 Schedule 2 Public offices 8 Insert at the end of Part 1 of the Schedule: 9 Mental Health Commissioner 10 Full-time Deputy Mental Health Commissioner 11 Page 14
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