Social Development Committee: Public Health Act Review

Dr HARVEY (Newland) (11:43): On behalf of the member for King, I move:

That the 43^rd report of the committee, entitled Review of the South Australian Public Health Act 2011, Part 1, be noted.

On behalf of the Social Development Committee, I would like to thank all those who contributed to this review. I thank the state government agencies that gave evidence, including SA Health, and I especially thank the Chief Public Health Officer, Professor Nicola Spurrier, and her predecessor, Professor Paddy Phillips, for providing their evidence. I also thank Dr Chris Lease and Dr Kirsty Hammet and the staff of the Health Protection and Licensing Services of SA Health. The committee is very grateful for your evidence and follow-ups to the committee's questions.

Thank you also to the staff of the Department for Planning, Transport and Infrastructure; the Department for Environment and Water; the Local Government Association of South Australia; and the individual councils that provided a written submission.

Lastly, thank you to the community organisations, non-government sector, universities, advocate groups and research institutes for your very valuable input, and to Environmental Health Australia, in particular Dr Kirstin Ross for her submissions. The Social Development Committee started this review in late 2018 and had just finalised its draft report when South Australia was hit by the COVID-19 pandemic. This has protracted the tabling of the report, as there were many changes to be made in real time as we dealt with COVID-19.

I can advise members, however, that the review found that, in comparison to the previous Public and Environmental Health Act 1987, the South Australian Public Health Act 2011 is much more capable of providing for the kinds of public health risks we face today in the 21^st century—risks that include issues like climate change, clandestine drug manufacturing labs in residential homes, increases in childhood obesity and other non-communicable diseases, and of course the increase in mental illness amongst our populations.

The committee heard that the act, the subordinate legislation and the practical policy supporting it are fit for purpose. It is clear from the evidence that the act is modern, flexible and responsive to a range of public health considerations. The committee has made 85 recommendations to the Minister for Health and Wellbeing as a result of the review; however, these include some very minor fine-tuning, many of which concern very technical provisions in some of the various regulations to the act.

Before going further, as you are all aware, the South Australian Public Health (Controlled Notifiable Conditions) Amendment Act 2020 came into effect on 5 March 2020 with amendments to the act to strengthen the coercive powers vested in the Chief Public Health Officer. Since the controlled notifiable conditions amendment act was enacted, temporary modifications were made to parts 9 and 10 of the act by the COVID-19 Emergency Response Act 2020, as well as a further amendment to part 13. The temporary modifications will cease to have effect once the provisions of the COVID-19 Emergency Response Act 2020 expire, as set out in section 6 of the COVID-19 Emergency Response Act 2020.

However, the modifications and amendments have been listed under the relevant parts of the act in the report of the committee in order to preserve accuracy, as there has only been a lapse of some months for the amendments and modifications to have been in operation. The committee has chosen not to include these amendments and modifications as part of its review. The committee did not call for evidence on COVID-related changes, as they will be a matter for further review and report. To that end, the committee resolved that when the Major Emergency Declaration has expired, if that time comes, and when it is an appropriate time, the committee will consider those modifications and amendments.

This is why the report has been tabled as part 1. A number of parts in the act are pertinent to the public health risks, such as COVID-19. However, the committee wished to deliver the findings and recommendations for the other parts which relate to the daily administering of the act, such as the policy and planning work, delivery of services and the regulatory regimes of compliance and enforcement.

The evidence that the committee received showed the majority of stakeholders value and use the objects and principles of the act in their day-to-day work and, just as importantly, can see how these two features of the act are benefiting their communities. The addition of a general duty to require a person who must take all reasonable steps to prevent or minimise any harm to public health in certain circumstances is also seen as a modernising of the act. This provides a fail-safe to enforce the subordinate legislation and raise awareness that there is a responsibility incumbent on us all for the health of ourselves and each other.

By including powers for the Chief Public Health Officer to make a declaration of a prescribed contaminant or where a spread of infection is a risk to public health, it further modernises the act where communicable diseases are concerned. These provisions make the act responsive and flexible in its policy and regulatory application. This public health legislation empowers the minister to make a code of practice for the prevention of disease and the protection of the things that keep us healthy.

Non-communicable disease is one of the greatest risks to our state's health, and the act has shown it is capable of providing ways to address such risks. This is a commitment to the future of health of South Australians. In addressing these risks and in the administering of the act, stakeholders had a lot of practical suggestions to contribute. The committee has been led by the recommendations made by stakeholders to improve the act's functioning on a day-to-day basis.

Local government reported they are generally pleased with the act and its functions. However, the evidence also showed that the main concern for local government is the need for stronger and improved consultation, collaboration and communication between the Department for Health and Wellbeing (the department) and councils. This could be achieved through strengthening the use of the act's partnership principle, which would serve to benefit councils and communities. However, in some instances, leadership from the state government is also identified as crucial to enhancing these partnerships—for example, where multiorganisational response is needed to achieve appropriate public health outcomes.

Local government is at the forefront of administering the regulatory regime of the act as well as the policies issued by the department, which include the promotion of health and prevention of ill health. These activities are outlined in a council's Regional Public Health Plan (RPHP), which should align with the State Public Health Plan. The evidence shows that councils consider there is a good range of regulatory tools in the act and in the supporting regulations and policies, but that some improvement is needed.

Concerns were also raised by local government that more timely reviews of subordinate instruments need to be undertaken and these then need to be kept up to date. Difficulties have been experienced in the administration of the South Australian Public Health (Severe Domestic Squalor) Policy 2013 with stakeholders agreeing more tools and training are needed. Importantly, there is also a need for state government leadership in coordinating the multiagency approach in incidents of severe domestic squalor. Often there are underlying causes for this social issue and these also need to be addressed. That takes a coordinated approach and one for which the act can provide.

Stakeholders welcome the introduction of a legislative instrument to address the prevalence and increase of clandestine drug manufacturing labs in South Australia through the South Australian Public Health (Clandestine Drug Laboratories) Policy 2016. South Australia Police and SA Health have been working together in implementing this policy.

Councils advise they anxiously await the updated guidelines on the safe and hygienic practice of skin penetration, as over recent years skin penetration technologies have been advancing at a faster rate than the policy prescribes. Councils want to see greater enforcement measures in place to prevent the higher degree of risk to public health that is possible with new and novel skin penetration practices.

While the act and its numerous regulations provide for the compliance and enforcement of high public health risk businesses, increases in business registration fees and increases in fines for breaches were amongst suggestions from councils as deterrents to noncompliance. This is highlighted in the discussion in the report on the regulations that support the act and was identified as a desirable measure, particularly in the review of the South Australian Public Health (Wastewater) Regulations 2013 and the South Australian Public Health (Legionella) Regulations 2013.

Councils also gave evidence that there are now more types of business offering services that were previously unavailable when the instruments were last reviewed and that new categories for registration should be developed and implemented. There are calls for clearer guidelines for issuing section 56 duty notices. Councils, along with the EHA SA, also advised that the issuing of notices for noncompliance under the act requires that an authorised officer is first required to issue a preliminary notice. The agreed view of councils and the EHA SA is that this is cumbersome and confusing and compliance would be better achieved by the issue of one notice for infringements and offences. While a section 56 notice is very useful, simplification of the process is considered highly desirable.

In relation to public health planning through the state and regional public health plans and the public health policies, these were viewed favourably by stakeholders. Councils acknowledged an increase in the aspirational nature of their plans with suggestions focused on improving the resourcing and implementation of public health strategies, increasing flexibility for councils to report on their public health plans. Councils identified the need to have stronger linkages across all levels of government in the administration of the public health plans.

Some of the other concerns and suggestions made are largely centred around the degree of clarity and ease of implementing and administering parts of the act effectively. For example, key concerns for local government are focused around the regulatory regimes in place and in ensuring that the legislation is being accurately reflected in practice.

The role and functions of authorised officers received much scrutiny from a number of stakeholders. This evidence shows that, although many of the duties of an authorised officer are largely unchanged from the previous act, the removal of environmental health from the act has a diminished recognition of skills held by environmental health officers (EHOs). This has left the EHOs in a position where the function of their role has become more regulatory and less about higher order assessment of the risks to public health.

Local government had many excellent and relevant suggestions for bringing the regulations and policy documents up to date and the department has already commenced some of this work. Toward that end, the committee has made recommendations that support local government's contribution to this review. Many of these were also highlighted by SA Health and include:

expansion of some of the act's definitions;

greater oversight from SA Health of subordinate legislation;

defining the roles and responsibilities of authorised officers and environmental health officers at the state and local government levels in relation to jurisdiction; and

strengthening of the regulatory regime by increasing the tools available for authorised officers to issue notices and expiations and increasing training and support for authorised officers who are out in the field.

Further recommendations include:

provisions for councils to recoup costs through claim on associated land when dealing with emergency situations;

streamlining the time frames for councils to report on their regional public health and strategic management plans;

including a greater focus on wellbeing in the act's vision and purpose;

prescribing some of the guidelines to make compliance enforceable;

developing standards for new and novel high-risk industries;

development of a broad-reaching public health campaign to continue to address the social determinants of health;

development of guidance materials for local government's role in the state's Public Health Emergency Management Plan; and

development of greater links with state government departments and alignment with their statutes, for example, councils being able to partner more with other government agencies.

One of the overriding principles of the act is to protect the public from any person whose infectious state or whose behaviour may present a risk or an increased risk of the transmission of a controlled notifiable condition. This is reflected in the coercive powers, punitive approach to breaches and the focus toward corrective action and is balanced with an individual's right to procedural fairness. Powers to require a person to undertake testing or a medical examination or to undertake counselling, and powers to give a person a direction under the act, are balanced by several requirements that the Chief Public Health Officer must be satisfied with before he or she should act.

This includes making decisions about a person's location, activities from which they are restricted and actions they must undertake. Any decision made by the Chief Public Health Officer affecting a person to which these provisions apply has its equivalent review and appeal rights where a person may apply to either the South Australian Civil and Administrative Tribunal, the Magistrates Court or District Court of South Australia or where a person has been detained, the Supreme Court.

The committee heard that these powers had not been exercised at the time of undertaking this review and no evidence was presented in relation to how the powers had been working. The chief concern identified at the time was the manner in which the requests for a warrant could be made although SA Health did make some suggested changes which are now reflected in the COVID-19 controlled notifiable conditions amendments to the act.

While some of the changes recommended by SA Health have been temporarily modified by the COVID-19 Emergency Response Act, there is a case to amend some of these sections more permanently following expiration of the emergency declaration. There is also a case to allow for warrants to be sought by means other than in person. This would see authorised officers being able to make a request for a warrant from a magistrate over the telephone, by email or other electronic means, which would bring this function into line with other Australian jurisdictions.

The act has significant interoperability with the Emergency Management Act which provides for the state's emergency management, outlining who is responsible for which services and what actions need to be undertaken. The Emergency Management Act recognises, through the State Emergency Management Plan, the Public Health Emergency Management Plan prepared under the act. We have seen this in action as a result of COVID-19. In such a public health incident or emergency, the Chief Executive of SA Health is responsible for making a declaration under the act, which triggers sections of the act to be read in conjunction with or replaced by sections of the Emergency Management Act. These parts have functioned well, having only been exercised for COVID-19.

South Australia Police made recommendations for the committee to consider where part 11 of the act concerns the powers to 'segregate, isolate and direct' a person if that person is considered a risk to public health. SAPOL made the suggestion that the appeal rights under section 90 of the act in relation to a significant public health emergency should be removed. However, as we have experienced now because of COVID-19, it is important that the principles of the act that require balance to be maintained between the individual's rights and the safety of the community are kept intact. The act provides for the Chief Public Health Officer and the minister to take the necessary proportionate and precautionary steps to safeguard the community from public health risks.

There are a number of other very important areas that I will run out of time to discuss today, but I highly recommend that all members read the report. I would like to thank the committee secretary, Robyn Schutte, and the research officer, Mary-Ann Bloomfield, for their incredible work, as well as my fellow committee members, particularly the Presiding Member, the Hon. Dennis Hood of the other place.

Motion carried.