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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-11-24 Daily Xml
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SOUTH AUSTRALIAN PUBLIC HEALTH BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Industrial Relations, Minister Assisting the Premier in Public Sector Management) (1:00): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation of the bill inserted in Hansard without my reading it.

Leave granted.

This Bill is about public health, the health of all of us. As a piece of legislation it is the latest in a long line of public health law stretching back to colonial times in South Australia.

The South Australian Public Health Bill 2010 is designed to replace the Public and Environmental Health Act 1987 and provide for modernised and sustainable legislation to protect the public's health both now and well into the future.

South Australian public health law has historically drawn on the work of British public health campaigners from the Victorian era. Because of their efforts in the 19th Century, our world has changed for the better. These early public health campaigners successfully fought for laws for public health which, in turn, started a new urban planning revolution that brought in cleaner water, safe waste disposal, higher standards of housing, cleaner air, safer and higher quality foods, improved maternal health, healthier babies and children, improved living conditions and safer work places. They provided the basis for modern town planning and local government as we know it.

Well before the advent of modern medical breakthroughs in treatment and the revolutions in antibiotics, modern vaccines and pharmaceuticals, public health interventions dramatically changed the way most people lived in the western world. Living conditions were improved for the population as a whole. Infant mortality plummeted, people were living longer, healthier lives, and our societies were transformed into healthier ones; ones that actually protected and promoted peoples' health. Healthier societies became stronger economies which helped produce a virtuous circle whereby improving economies led to better living conditions and better health.

This is the legacy and the foundation on which South Australia's public health system has been built. Public health law and public health practitioners can rightly lay claim to changing the world for the better. But the world keeps changing and not always for the better. And because this is so, we must be ever vigilant and must keep making sure that our public health laws and our public health powers not only keep pace with our changing world but can anticipate those changes and influence them for the better. This is the core of this new legislation; the ability to keep pace with a rapidly changing world, anticipate the unexpected and have sufficient powers to take action to protect and promote health.

A few short years ago no one had heard about Severe Acute Respiratory Syndrome or SARS. The prospect of a global pandemic of unknown proportions sounded more like something out of a science fiction novel, but it was real and it was dangerous. The threat of SARS provided the world with a wake up call. As a result of SARS, many nations, states and provinces reviewed their public health laws to strengthen their capacities to deal with public health emergencies. The health impacts of terrorism and other mass casualty events as well as the direct possibility of pandemic influenza also spurred governments around the world to strengthen public health laws and public health capacity. Members will recall that this House dealt with emergency public health provisions when amending the Public and Environmental Health Act 1987 in 2009. These new emergency provisions have been preserved and incorporated into this Bill.

These global reviews of public health laws identified that it was not just the clear and present danger of a pandemic or other public health emergencies which confronted societies like ours. The most profound public health challenges facing us at the start of this century have changed in character from those facing 19th Century public health campaigners and those that we subsequently faced in the mid twentieth Century. This is not to say that problems with infectious diseases, sanitation, clean water and other traditional public health concerns have disappeared, far from it. They remain continuing concerns, always requiring vigilance but in many instances these classic challenges to our health are well controlled or effectively prevented by existing public health strategies and regulations.

There are now more far reaching and insidious public health challenges facing us this century. These threats are not produced by any external agent, bacteria or virus. These threats emerge from the way we live our lives. There has been an explosion in chronic, non-communicable diseases, so much so, that some public health experts predict that in societies like ours, children being born today may be the first generation in over 200 years to face the prospect of reduced life expectancy.

Chronic, non-communicable diseases do not occur by accident. Not so long ago many people attributed this explosion of disease to the lifestyle choices that individuals made. Whatever the correctness of this view, it was not and is not the entire picture. We now understand that people's choices are heavily influenced and constrained by the circumstances they find themselves in. This is commonly referred to as the social determinants of health.

The World Health Organization commissioned a major global inquiry into the social determinants of health in 2003. This commission was chaired by Sir Michael Marmot an acclaimed public health epidemiologist who is also the current President of the British Medical Association. One of the Commissioners assisting Sir Michael was South Australia's own Fran Baum, Professor of Public Health at Flinders University. The World Health Organization's Commission into the Social Determinants of Health reported in late 2008. It called for sustained government and community action at all levels—local, state, national, regional and global—to attack the 'causes of the causes of illness', that is, to attack the social determinants of health. This Bill in part provides for South Australia's response to this challenge.

But the work of the WHO Commission was not the only impetus for modernising South Australian public health legislation, and nor were the changes in international public health threats. The current Act, the Public and Environmental Health Act 1987 has been under review for a number of years.

The Government made a commitment to review the Public and Environmental Health Act 1987 in the 2005 election platform. This review commenced in 2006 and noted the previous review that was commenced under the leadership of the then Minister for Human Services, the Hon. Dean Brown in 2000. This previous review was widely supported and its results pointed towards the need for further work to modernise the legislation. The results of that review have been incorporated into the development of this Bill.

Also examined as part of the 2006 review were similar reviews and legislative reforms that had been undertaken in Australian and overseas jurisdictions. For example, we are indebted to our colleagues in Quebec whose public health legislation is regarded as an international exemplar. South Australia signed a Public Health Partnership Agreement with Quebec in 2008 and we have benefited from their expertise and advice when framing certain aspects of this Bill particularly in relation to the role of the Minister as the advisor to the Government on any public health issue.

On this basis and following extensive consultation with the key stakeholders, it was determined that rather than recommence a complete review of the Public and Environmental Health Act, the Government would develop an exposure draft of the legislation. In September 2009, the South Australian Public Health Bill 2009 was released for public comment. Fifty-nine submissions were received and the Bill has since been revised following a review of the comments received. There has also been further, close discussion with key parties on critical issues of concern. I am pleased to say that the Government believes that all principal concerns and questions have been addressed and the Bill before you is strengthened and improved because of these discussions.

I would like to take this opportunity to thank publicly all of the individuals and organisations who participated in this process and who took the time to formally submit responses to the review and participate in further consultation meetings on areas requiring further improvement. I would especially like to mention that by far the greatest contribution to this review came from a source much closer to home. I am referring to the contribution of public health practitioners and in particular the local government sector.

This Bill has been developed through a process that relied heavily on the strong engagement with the Local Government Association of South Australia and its members, and Environmental Health Australia—South Australian Branch, the professional body representing environmental health officers. Local government and authorised officers within local government form the front line of the State's public health system. Their experience in administering the current Act allowed them to provide concrete feedback on what was needed to improve and strengthen this legislation and to develop public health legislation fit for the purpose of anticipating and responding to 21st century public health challenges. I acknowledge their role and the support they provided in developing this Bill.

Also streamlined and strengthened in the Bill are powers for the prevention, control and management of infectious disease that pose a serious risk to public health. The Bill continues and builds upon the proven regulatory regime which has been successful in dealing with infectious conditions. Where the Bill takes this regime further is that it allows properly authorised public health officials to take early and decisive action to prevent and control disease outbreaks. The Bill also works in the real world, and in the real world infectious diseases do not recognise state borders. The Bill allows for the recognition of other jurisdictions' public health orders and allows for the exchange of vital public health intelligence needed to manage outbreaks.

The Bill incorporates provisions that are congruent with the World Health Organization's Revised International Health Regulations (2005). It includes, for the first time, a codified statement of principles and rights for individuals who may be the subject of public health orders, orders which by necessity may impose directions or restrictions on their behaviour. Although such powers have always been a part of the toolbox that public health authorities have used to protect health, for the first time the exercise of these powers will be applied in a staged and proportionate way commensurate with the level of risk, and they will be governed by a set of principles that guarantee respect, privacy and involvement in decision-making. If a person's liberty is to be restricted, it is to be done only as a measure of last resort and with the minimum restrictions necessary to ensure public safety.

Although the primary objective of the Bill is the protection of the public, an objective that will never be compromised, the Bill recognises that people are generally more willing to cooperate with authorities when their rights are clearly recognised and respected. The Bill therefore strikes a balance of protection of the community, the proportionate exercise of strong powers where necessary, the prevention of stigmatisation and the recognition and protection of individual rights needing protection.

I now wish to discuss and highlight the key features of the Bill.

The South Australian Public Health Bill 2010 contains a number of explicit objectives. The inclusion of objectives reflects a modern approach to legislation. Objectives help clarify the purpose of the Act and define the core values, functions and outcomes that are required to achieve that purpose. These objectives in the Bill are based on the essential functions outlined in the international public health law literature and in similar new legislation enacted in other States and Territories. They provide clarity about the functions and activities that should be undertaken to improve and protect public health.

The Bill sets out several principles similar to those incorporated in recent public health legislation in other jurisdictions. The principles aim to provide a clear framework for the process of public health decision-making under the legislation. The principles also aim to ensure the Act will be flexible and enabling. For example, the Precautionary Principle in clause 6 will permit proportionate action to be taken if circumstances warrant taking reasonable steps to protect public health from identified risks even though there may not be complete scientific certainty available at the time.

Guidelines on the application of the statutory principles contained within the legislation will be required and will be developed by the Minister in consultation with key interest groups such as the Local Government Association of South Australia and Environmental Health Australia (South Australian Branch). These guidelines will explain how the principles should be interpreted and applied such as in situations where there has been an apparent breach of the general duty to protect public health.

The Bill defines 'public health' to mean 'the health of individuals in the context of the wider health of the community'. This definition will guide the assessment of risk to public health, a key concept in the Bill. This definition of public health is consistent with the definition contained in similar contemporary public health Acts in other Australian jurisdictions.

Under the Bill, the Minister will be charged with the overall responsibility for administering the legislation and for protecting and promoting public health. Furthermore, the Bill establishes an explicit framework for the Minister to provide advice to and consult with other State Government agencies when proposals that may have significant implications for public health are being considered. This approach is congruent with the Health in All Policies approach that is being developed in South Australia and builds on European and Canadian precedents. The South Australian Health in All Policies approach is being implemented across the South Australian public sector. The Department of Health together with the Department of Premier and Cabinet have been working with a number of Government agencies on initiatives demonstrating this approach. South Australia's Health in All Policies initiatives were showcased at a recent International Meeting held in Adelaide in April this year that was co-sponsored by the State Government and the World Health Organization. This international meeting produced the Adelaide Statement on Health in All Policies which has been distributed globally and is already gaining widespread recognition as a definitive statement of this type of groundbreaking work.

The Bill requires the Minister to work collaboratively with local government in a joint effort to protect and promote public health in this State. The Minister will however retain final responsibility, as is currently the case, and as such, can intervene where a council may be failing in its duty to protect the public's health.

This Bill establishes the statutory position of Chief Public Health Officer. This position is consistent with provisions in comparable legislation interstate and overseas. The Chief Public Health Officer will provide a single point of reference and source of advice and expertise in public health matters for the Minister, the Department of Health, other Government agencies, Parliament and the public of South Australia. This statutorily recognised position ensures the continuance of vital public health activities within the South Australian community even if there is a serious pandemic that disrupts normal functions of Government. The Bill provides the Chief Public Health Officer with the power to give directions and make orders, including detention orders to persons who have a controlled notifiable disease and who present a risk to others. The exercise of these powers will be guided by the principles in the Bill that make clear that detention is a measure of absolute last resort. The District Court has jurisdiction to review any direction or order of the Chief Public Health Officer. Extension of a detention order beyond 30 days must be authorised by the Supreme Court. There is also a mandated review by the Supreme Court for an order extending beyond six months. This scheme of judicial review of detention orders protects the rights of affected individuals while preserving the primacy of the public's right to protection.

The system of public health in South Australia, and in all jurisdictions in Australia, is based on a partnership of interlocked responsibilities between local, State and Commonwealth governments. At an international level, this partnership also includes the World Health Organization (WHO).

In this context, the Bill continues to recognise the important and very significant role local government traditionally has in public health, a role which goes back to the earliest laws on public health. The Bill acknowledges this traditional role and partnership by continuing to recognise councils as local public health authorities as is currently the case under the current Act.

Local government provides an extensive range of public and environmental health services, including food safety, school and community immunisation programs, human waste and waste water control, business inspections and health risk assessments. Councils also provide a significant but often unrecognised contribution to public health by providing a range of recreational facilities and services such as playgrounds, sporting facilities, parks, good street paving and lighting. These are important public health measures ensuring an opportunity for good health for all.

The Bill provides councils with more explicit guidance regarding their public health functions and responsibilities whilst continuing the majority of functions that councils currently undertake.

This Bill continues to recognise the role of local government in supporting access to immunisation services. The original provision regarding immunisation in the consultation draft of the Bill was of concern to councils and the LGA and, as a consequence, the Bill was amended. The new provision, which is supported by the LGA, makes it clear that the Department of Health will provide ongoing support to councils in the provision of immunisation services. The Bill provides for a partnership between state and local government for immunisation services that will be the subject of a memorandum of understanding between the Minister and the LGA.

The current Act established the Public and Environmental Health Council. This body is to be replaced by the South Australian Public Health Council which will comprise members appointed by the Governor, as is currently the case.

The South Australian Public Health Council membership will be drawn from the same membership as the Public and Environmental Health Council (local government, Environmental Health Officers at the local government level and persons with qualifications and experience in public and environmental health including communicable disease control and prevention). Further members will be drawn from the fields of environmental protection, health promotion and the non-government sector with experience in activities relevant to public health. This membership more accurately reflects the scope of key stakeholders in modern public health practice.

The provisions relating to the South Australian Public Health Council provide it with clearer and more explicit terms of reference than those of the Public and Environmental Health Council. It will have responsibility to provide strategic advice and monitor the state of the public's health in South Australia. Its role aligns with that of the new position of Chief Public Health Officer since the South Australian Public Health Council will provide advice to the Chief Public Health Officer.

Under the current Act, the Public and Environmental Health Council has a power to constitute a special review committee to hear appeals relating to a notice under the Act. The local government sector supports the continuation of an alternative appeal mechanism rather than a direct recourse to the Administrative and Disciplinary Division of the District Court.

Accordingly, the Bill establishes the Public Health Review Panel (the Review Panel) to hear appeals on certain matters relating to Part 6. The Review Panel will be established as a separate entity from the South Australian Public Health Council although it will draw its membership from the Council. The Review Panel will comprise the Chief Public Health Officer, two members or deputies of the South Australian Public Health Council and any other persons considered by the Chief Public Health Officer to have relevant expertise on a matter. This change provides a more manageable mechanism for the review of decisions and for timelier and speedier reviews.

A decision of the Review Panel may be appealed to the District Court. The Review Panel may also bring any proceedings to an end that appear to be more appropriately considered in proceedings before the District Court thereby ensuring matters are referred to the appropriate jurisdiction. A person can also appeal directly to the District Court against a notice issued by the relevant authority.

Another important change in this Bill is that the operation of a notice that is being reviewed is not suspended pending the outcome of the proceedings, unless determined otherwise by the Review Panel. This will prevent the current practice of seeking a review as a means of delaying action on a notice.

The current Act provides for the Public and Environmental Health Council, after a process of consultation, to take action it considers appropriate including the removal of a local council's powers and transferring them to the Minister, where the Public and Environmental Health Council is of the opinion that a local council has failed to discharge its duty under the Act.

Whilst these provisions have never been invoked, it was considered important for this power to continue in the new legislation, although in a modified manner. Subject to certain staged, procedural requirements which aim to ensure a council is given fair opportunity by law to act on a significant matter affecting public health in its area, the Bill gives the Minister a power to take over a function of a council, should a council fail to perform a function under the Act, until the matter is resolved. The Chief Public Health Officer will undertake corrective action on the Minister's behalf. A council may also make a request to the Minister to transfer a function to the Chief Public Health Officer for a defined period.

In Part 6, the Bill establishes a general duty to protect public health. This mirrors similar general statutory duties for example, those in the Environment Protection Act 1993 for the protection of the environment, and those in the Occupational Health, Safety and Welfare Act 1986 for the protection of occupational health and safety. In a manner similar to the statutory duties in these Acts, the general duty to protect public health does not entail an offence nor does it establish a civil liability. It provides an educative message for the community on the importance of public health and the need for mutual responsibility in order to sustain public health. The Bill includes provisions that allow for the development of policies that may define the scope of the general duty and establish standards that are to apply to prevent or manage a public health risk.

Enforcement will occur through the mechanism of remediation notices. An offence will occur if there is a failure to comply with an order (allowing for a defence of reasonable excuse).

Part 3 of the current Act (Protection of public health) has proved to be complex and confusing in its application. This Part includes outdated approaches and certain aspects of this Part have been superseded by provisions in later legislation (for example the Environment Protection Act 1993 and section 18 of the Public and Environmental Health Act 1987—Discharge of wastes in a public place and sections 21-22 Protection of water supplies in the Act). Part 3 has been found to be deficient in providing comprehensive guidance (beyond narrow areas of insanitary conditions) for the assessment of risks to health, even to the extent of still containing outmoded, pre-germ theory models of disease transmission. This deficiency is remedied by the new Part 7, 'General public health offences' which sets out the scheme for assessing a risk to public health. This assessment will determine if the matter constitutes a material or serious risk to public health. This part of the Bill will provide guidance to authorised officers on how risk assessments should be conducted. The Bill provides for a graded approach to action and remediation depending on the immediacy and severity of the risk. This modern framework for the assessment of public health risks can be flexibly applied to any situation, thereby future-proofing the proposed legislation against unforeseen or unanticipated public health problems. This approach is consistent with that adopted in the Australian Capital Territory, Queensland, Tasmanian and Victorian Acts and in the Western Australian draft Public Health Bill. This approach has been based on the scheme that was recommended in the National Public Health Partnership paper: The Application of Risk Assessment Principles to Public Health Legislation.

Penalties for causing a risk to health have been increased to reflect proper concerns for public health and provision has also been made for continuing offences and for expiations. This addresses problems with the current legislation which allows those who are willing to pay expiation fees to do so whilst continuing harmful practices with no resolution.

To assist the prosecution of offences under the Act, the Bill provides that where a court is satisfied that a local council or the Chief Public Health Officer has, in accordance with the Act, assessed a risk to public health that is the subject of proceedings before the court, the court must, in the absence of proof to the contrary, accept that assessment as evidence of the fact that a risk to public health existed or has occurred and, insofar as may be reasonably demonstrated by the assessment, the extent or significance of the risk.

The Bill provides for a scheme of public health planning at the local, regional and state-wide level under the general direction of the Minister. At the local level, planning will be undertaken by councils in collaboration with a range of identified partners. This will provide the means by which responsibilities conferred on the Minister and councils can, in part, be discharged. These provisions are consistent with schemes in the current and previous Victorian public health legislation and in the Western Australian draft Bill. The Bill also links State and regional planning since the Minister is required to determine high level state-wide public health goals and priorities which need to be taken into account in local and regional public health planning. The proposed State Public Health Plan will also incorporate planning requirements for unincorporated areas of the state, including Aboriginal lands.

The scheme in the Bill aligns public health planning with existing obligations on local councils to engage in strategic management planning under section 122 of the Local Government Act 1999. The Bill provides for a scheme under which councils can incorporate public health elements into their existing strategic planning frameworks and this means that councils do not have to undertake a separate, additional planning process.

The Bill includes a voluntary scheme for inter-sectoral planning by enabling the identification and participation of public health partners in planning processes established by councils. This provision reflects existing practice where several Government and non-government agencies are involved in aspects of public health planning at the local government level.

The public health planning requirements will be the subject of a phased implementation process to enable all parties, and especially councils, to become familiar with these provisions. The Department of Health will work with the LGA to host a workforce capacity and resource development project aimed primarily at councils to help prepare councils and other relevant agencies to undertake the public health planning roles and processes intended in the Bill.

The Bill will provide improved opportunities to better address non-communicable diseases and chronic conditions that have taken over from infectious diseases as the primary causes of morbidity and mortality and now constitute the major public health challenge for the entire population. The emergence of these conditions is related in part to lifestyle opportunities and choices and to a more significant degree, the social, physical and economic environments which characterise modern societies.

The Bill will permit the declaration of certain diseases and conditions including injuries of public health concern to be identified and will permit the development of codes of practice that address ways in which the incidence of disease can be prevented, monitored, reduced, managed and controlled. The codes of practice will specifically address the policy context and causal factors which underpin many of these conditions. It should be noted, however, that the provisions set out in Part 8 of the Bill are not to be applied for the regulation of an individual's behaviour, nor do they govern the clinical decisions of medical practitioners. Rather these provisions target the causes and underlying social and environmental factors which can lead to public health risks that result in illness or injury.

As mentioned earlier, the Bill adopts a more contemporary framework for the prevention, early detection, containment, control and management of infectious disease. Infectious disease has been greatly reduced as a major threat to health during the last century due to the success of public health interventions, better living conditions and advances in health care. However, infectious diseases continue to pose new and unanticipated risks and dangers due to the emergence of new or previously unknown diseases, the migration of diseases due to ecological degradation and climate change, increased world travel, mutation and the development of drug resistant strains, among other causes.

The Bill retains two categories of disease, notifiable disease and controlled notifiable disease which can be declared by regulation. In emergency situations, the Minister can declare a condition or disease to be a notifiable condition or a controlled notifiable condition for a defined period without requiring a regulation to be made. This provision allows for urgent action including rapid notification and appropriate public health interventions when dealing with a serious and potentially unknown infectious threat.

The Bill introduces a new category of notifiable contaminant which will require the reporting of prescribed contaminants as well as further testing by laboratories or prescribed persons if required by the Chief Public Health Officer. The reason for including this provision is to establish a capacity to identify and monitor contaminants in food, other products, or the environment that pose a risk to public health in order to act early to prevent adverse public health outcomes by preventing the distribution of a product or initiating a product recall, or carrying out other relevant measures. This provision mirrors provisions in Victorian public health law but, like the Queensland legislation, is more advanced in that it covers a range of contaminants as well as micro-organisms. These contaminants can include prescribed chemical agents, heavy metals or other substances known to be a risk to health.

In addition to reducing the risks to public health, these provisions will also reduce the risks to industry. While the public's health will remain the primary concern, we must also make sure that our important food processing and manufacturing businesses are appropriately protected. A public health food scare is the quickest and most certain way to damage or even destroy a good food business. This new regime of notification of contaminants provides the state public health officers with capacity to monitor these reports and intervene earlier to prevent a potential outbreak. Prevention and the earliest possible intervention are the hallmarks of this provision.

Some sectors of the food processing and manufacturing industry expressed concern about this provision in the draft Bill. The Department of Health has worked closely with the Department of Primary Industries and Resources of South Australia (PIRSA) and with industry representatives to ensure that there were no unintended consequences or unnecessary requirements imposed on relevant businesses. The Bill before you has improved this section with the assistance of industry. A range of safeguards which respond to industry concerns are included. Also explicit within the Bill is a firm commitment to consult affected industries before regulations are developed under this section of the legislation. I would like to record my thanks to my fellow Minister and his department—PIRSA for their assistance and I would most particularly acknowledge the contribution of and thank the Australian Chicken Meat Federation and Australian Pork Limited for their willingness to engage in a process which has improved the Bill for all concerned.

To be clear, the intent of clauses 67 and 68 is to improve the prevention and management of risks to public health from contaminants. Where contaminants may be found in food or other products, the Bill requires the Chief Public Health Officer to design regulations in consultation with all relevant affected industries. These provisions also incorporate environmental contaminants that pose a risk to public health outside of the food chain. For example they will provide the State with a mechanism to track the prevalence of prescribed antibiotic resistant microbes, where detected, in specific locations in the community.

This Bill provides a clearer scheme for the management and control of persons with controlled notifiable disease whose behaviour may be placing others at risk. Where necessary, it provides for a compulsory scheme of clinical examination, counselling, direction, treatment orders and isolation or detention orders. These elements of the scheme can be applied in a graded way depending on the severity of the public health risk and the degree of personal cooperation or voluntary compliance. This scheme incorporates and is consistent with:

the provisions of the World Health Organization's International Health Regulations (IHR) including requirements to participate in national reporting and incorporating a set of principles that provides for the protection of individual rights, in so far as they do not conflict with the overriding imperative of protecting the population from identified public health risks

national and state based reviews of this area including the national report commissioned by the Australian Health Ministers' Conference that sought to establish nationally consistent guidelines for the management of people who place others at risk.

The Bill ensures better management of public health issues and infectious disease by recognising orders made under related Acts in other jurisdictions as if they were made under the equivalent area of South Australian law. In relation to confidentiality provisions, the Bill will also permit the exchange and flow of public health information for the identification and control of the spread of disease by enabling disclosure of certain information in the course of official duties for those involved in administering a related Act or any other purpose, such as the compilation of national surveillance data on disease.

Because public health issues can be complex and broad in scope, not all subsidiary legislative matters can be dealt with effectively within the constraints of a regulation making power. The Bill provides a policy making power similar to that in the Environment Protection Act 1993. It permits the Minister to prepare and maintain a policy (to be called a State Public Health Policy) that relates to any area of public health such as matters constituting risks to public health, the scope of the general duty under Part 6, or setting out standards and other measures to promote or protect public health.

The development of these policies is to be undertaken in accordance with the procedures set out in the Bill. They must be referred to the Parliament which may disallow the policy.

The Bill contains a simplified, but comprehensive regulation-making power than is currently the case. All regulations under the current Act will be transitioned into new regulations to be developed under the Bill, and any new regulations and policies will be subject to the normal processes.

In conclusion, the Government acknowledges the key role that local government has in public health and has worked very closely with the local government Association of South Australia, Environmental Health Australia (SA Branch) and members of councils, among others, to ensure that any issues arising from this Bill received full and proper consideration and that appropriate solutions have been developed to address any concerns. I acknowledge again the support, assistance and commitment given by the Local Government Association of South Australia and the Environmental Health Australia (SA Branch) in the development of this Bill.

Local government always has been the co-regulator and partner of the state government for public health. Local government has always been responsible for local public health issues in its area. This Bill acknowledges and continues this well established and robust tradition. The Bill also recognises that public health is more than a local concern. As a state we must all work together to preserve, protect and promote public health. That is what this Bill provides for—cooperative and effective action for public health throughout South Australia, and collaboration with the Commonwealth and other States and Territories beyond, including allowing South Australia to contribute to international public health effort.

Preserving, protecting and promoting health is not just a responsibility of the health care system. In fact the role of the health care system, whilst vital, is not sufficient to do this alone. The preservation, protection and promotion of health require concerted and coordinated action across government, between governments and across businesses and communities. This requires all of us to act to protect the health of the whole community.

I think C. Everett Koop, the famous Surgeon General in the United States who served between 1981 and 1989 best summed up the significance of a strong public health system. He said; 'Health care is vital to all of us some of the time, but public health is vital to all of us all of the time.'

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation by proclamation.

3—Interpretation

This clause sets out the terms that are to be defined for the purposes of the measure.

Part 2—Objects, principles and interaction with other Acts

4—Objects of Act

This clause provides that the objects of the Act are—

(a) to promote health and well being of individuals and communities and to prevent disease, medical conditions, injury and disability through a public health approach; and

(b) to protect individuals and communities from risks to public health and to ensure, so far as is reasonably practicable, a healthy environment for all South Australians and particularly those who live within disadvantaged communities; and

(c) to provide for the development of effective measures for the early detection, management and amelioration of risks to public health; and

(d) to promote the provision of information to individuals and communities about risks to public health; and

(e) to encourage individuals and communities to plan for, create and maintain a healthy environment; and

(f) to provide for or support policies, strategies, programs and campaigns designed to improve the public health of communities and special or vulnerable groups (especially Aboriginal people and Torres Strait Islanders) within communities; and

(g) to provide for the prevention, or early detection, management and control, of diseases, medical conditions and injuries of public health significance; and

(h) to provide for the monitoring of any disease or medical condition of public health significance in order to provide for the prevention or early detection of any such disease or medical condition and for the protection of individuals and the community from the threat of any such disease or medical condition and from public health threats more generally; and

(i) to provide for the collection of information about incidence and prevalence of diseases and other risks to health in South Australia for research or public health purposes; and

(j) to establish a scheme for the performance of functions relating to public health by the State and local governments.

The Minister and other persons or bodies involved in the administration of the Act will be required to have regard to, and to seek to further, the objects of the Act.

5—Principles to be recognised under Act

It is intended to enact various principles that are to be applied in the administration of the Act, as set out in clauses 6 to 14.

6—Precautionary principle

The 'precautionary principle' is that if there is a perceived material risk to public health, lack of full scientific certainty should not be used as a reason for postponing measures to prevent, control or abate that risk. In applying the principle, decision-making and action should be proportionate to the degree of public health risk and should be guided by—

(a) a careful evaluation of what steps need to be taken to avoid, where practicable, serious harm to public health; and

(b) an assessment of the risk-weighted consequences of options; and

(c) an aim to ensure minimum disruption to an individual's activities, a community's functioning and commercial activity consistent with providing any necessary protection from identified public health risks.

7—Proportionate regulation principle

The 'proportionate regulation principle' is that regulatory measures should take into account, and to the extent that is appropriate, minimise, adverse impacts on business and members of the community while ensuring consistency with requirements to protect the community and to promote public health.

8—Sustainability principle

The 'sustainability principle' is that public health, social, economic and environmental factors should be considered in decision-making with the objective of maintaining and improving well-being and taking into account the interests of future generations.

9—Principle of prevention

The 'principle of prevention' is that administrative decisions and actions should be taken after considering (insofar as is relevant) the means by which public health risks can be prevented and avoided.

10—Population focus principle

The 'population focus principle' is that administrative decisions and actions should focus on the health of populations and what is necessary to protect and improve the health of the community, while considering the protection and promotion of the health of individuals.

11—Participation principle

The 'participation principle' is that individuals and communities should be encouraged to take responsibility for their own health and, to that end, to participate in decisions about their own health and the health of their communities.

12—Partnership principle

The 'partnership principle' recognises that the protection and promotion of public health requires collaboration and, in many cases, joint action across various sectors and levels of government and the community. The focus should be to develop and strengthen partnerships aimed at achieving identified public health goals consistent with the objects of the Act.

13—Equity principle

The 'equity principle' is the decisions and actions should not, as far as is reasonably practicable, unduly or unfairly disadvantage individuals or communities and consideration should be given to health disparities between population groups and to strategies to minimise or alleviate such strategies.

14—Specific principles—Parts 10 and 11

This clause sets out some additional principles that will only be relevant for the purposes of Parts 10 and 11. The overriding principle will be that people have a right to be protected from any person whose infectious state or behaviour may present a risk, or an increased risk, of the transmission of a controlled notifiable condition. A person who has a controlled notifiable condition that is capable of being transmitted must take reasonable steps to avoid placing others at risk. A person must also act to avoid contracting a controlled notifiable condition that is capable of being transmitted.

15—Guidelines

The Minister will be able to prepare or adopt guidelines that relate to the application of these principles. The Minister will take steps to consult with SAPHC and the LGA in relation to the preparation or adoption of any guidelines. SAPHC will also be able to request the Minister to develop guidelines with respect to particular matters.

16—Interaction with other Acts

Except as otherwise provided, the provisions of this Act will be in addition to, and will not limit, the provisions of any other law of the State.

Part 3—Administration

Division 1—Minister

17—Minister

This clause sets out various functions that may be performed by the Minister in connection with the administration of the Act. A key function will be to promote proper standards of public and environmental health within the State by ensuring that adequate measures are taken to give effect to the provisions of the Act and to ensure compliance with the Act. The Minister is also to be a primary source of advice to the Government about health preservation, protection and promotion.

18—Power to require reports

The Minister will be able to require specified authorities to provide a report on any matter relevant to the administration or operation of the Act.

19—Delegation by Minister

The Minister will be able to delegate functions and powers.

Division 2—Chief Public Health Officer

20—Office of Chief Public Health Officer

The position of Chief Public Health Officer is to be established.

21—Functions of Chief Public Health Officer

The functions of the Chief Public Health Officer will be as follows:

(a) to develop and implement strategies to protect or promote public health;

(b) to ensure that this Act, and any designated health legislation, are complied with;

(c) to advise the Minister and the Chief Executive of the Department about proposed legislative or administrative changes related to public health, and about other matters relevant to public health;

(d) to establish and maintain a network of health practitioners and agencies designed to foster collaboration and coordination to promote public health and the furtherance of the objects of this Act;

(e) at the request of Minister or on the Chief Public Health Officer's own initiative, to investigate and report on matters of public health significance;

(f) after advising the Minister and the Chief Executive of the Department, to make public statements on matters relevant to public health;

(g) any other functions assigned to the Chief Public Health Officer by this Act or any other Act or by the Minister.

22—Risk of avoidable mortality or morbidity

If the Chief Public Health Officer becomes aware of the existence of, or potential for the occurrence of, a situation putting a section of the community or a group of individuals at an increased risk of avoidable mortality or morbidity, the Chief Public Health Officer will be able to request a public authority to assist in identifying or producing a response to the circumstances being faced.

23—Biennial reporting by Chief Public Health Officer

The Chief Public Health Officer will, on a two-yearly basis, prepare a report on public health trends, activities and indicators in South Australia, the implementation of the State Public Health Plan, and the administration of the Act. The report will be provided to the Minister and tabled in Parliament.

24—Delegation

The Chief Public Health Officer will be able to delegate functions and powers.

25—Appointment of Acting Chief Public Health Officer

The Chief Executive will be able to appoint an Acting Chief Public Health Officer.

Division 3—South Australian Public Health Council

26—Establishment of SAPHC

The South Australian Public Health Council (SAPHC) is established.

27—Composition of SAPHC

SAPHC is to consist of the Chief Public Health Officer (who will be the presiding member) and 9 other members appointed by the Governor on the nomination of the Minister. Included in this membership will be 2 persons nominated by the LGA, 1 person nominated by Environmental Health Australia (South Australia) Incorporated, and 1 person nominated by the Presiding Member of the Board of the Environment Protection Authority.

28—Conditions of appointment

An appointed member of SAPHC will be appointed for a term not exceeding 3 years and will be eligible for reappointment from time to time.

29—Allowances and expenses

An appointed member of SAPHC will be entitled to fees, allowances and expenses approved by the Governor.

30—Validity of acts

An act or proceeding of SAPHC will not be invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

31—Functions of SAPHC

The functions of SAPHC will include to provide advice to the Chief Public Health Officer in relation to the protection and promotion of public health, the development of strategies to ensure that a sufficiently trained and skilled workforce is in place for the purposes of this act, and programs to promote public health research in South Australia.

32—Conduct of business

Six members will constitute a quorum of SAPHC.

33—Committees and subcommittees

SAPHC will be able to establish committees and subcommittees to advise it on any aspect of its functions or to assist in the performance of its functions.

34—Delegation by SAPHC

SAPHC will be able to delegate functions and powers.

35—Annual report

SAPHC will prepare an annual report and furnish it to the Minister. The Minister will ensure that the annual report is tabled in Parliament.

36—Use of facilities

SAPHC will be able to arrange to make use of the staff, equipment or facilities of a public authority.

Division 4—Councils

37—Functions of councils

This clause provides that a council is the local public health authority for its area. The following specific functions will be conferred on councils:

(a) to take action to preserve, protect and promote public health within their areas;

(b) to cooperate with other authorities in the administration of the Act;

(c) to ensure that adequate sanitation measures are in place in their area;

(d) to ensure that activities do not adversely affect public health;

(e) to identify risks to public health;

(f) to ensure that appropriate remedial action is taken to reduce or eliminate adverse impacts or risks to public health;

(g) to respond to public health issues;

(h) to provide educational information about public health.

38—Immunisation services

A council will be required to provide, or support the provision of, immunisation programs for the protection of public health within its area. Services associated with the provision of these programs will be provided with the support of the Department.

39—Cooperation between councils

A council will be able to act in conjunction or partnership with one or more other councils. The Chief Public Health Officer will also be able to request that a council cooperate with one or more other councils in an area of common concern.

40—Power of Chief Public Health Officer to act

If the Chief Public Health Officer considers that a public health risk exists in relation to the areas of two or more councils, or if the Chief Public Health Officer considers that action should be taken under this provision in connection with the promotion of public health within the State, the Chief Public Health Officer will be able to exercise a power that is conferred on a council under the Act as if the Chief Public Health Officer were a council. Steps will be taken to consult with the council or councils for the area or areas where the action is to be taken, and with SAPHC.

41—Council failing to perform a function under Act

This clause sets out a scheme for any case where the Minister considers that a council has failed to perform a function conferred on the council under the Act. The Minister will consult with the council about the matter. If necessary, and after consultation with SAPHC, the Minister will be able to direct the council to perform a function. If the council fails to comply with a direction, the Minister will be able to withdraw relevant powers of the council and transfer them to the Chief Public Health Officer. Costs and expenses reasonably incurred by the Chief Public Health Officer in exercising any such power will be recoverable from the council as a debt due to the Minister.

42—Transfer of function of council at request of council

It will be possible for a council to request that a function of the council under the Act be performed by the Chief Public Health Officer. This may lead to the transfer of specified functions of the council to the Chief Public Health Officer.

Division 5—Authorised officers

43—State authorised officers

The Minister may appoint a suitably qualified person to be a State authorised officer under the Act. A State authorised officer will be subject to direction by the Chief Public Health Officer.

44—Local authorised officers

A council may appoint a suitably qualified person to be a local authorised officer. A local authorised officer is subject to direction by the council.

45—Qualifications

A person will not be eligible for appointment as an authorised officer unless he or she holds qualifications that have been approved by the Minister for the purposes of the Act.

46—Identity cards

Each authorised officer will be issued with an identity card in a form approved by the Chief Public Health Officer. An authorised officer will be required to produce his or her identity card on request.

47—Powers of authorised officers

This clause sets out the powers of authorised officers in connection with the administration or operation of the Act.

Division 6—Emergency officers

48—Emergency officers

The Chief Executive will be able to appoint, individually or by class, such persons to be emergency officers for the purposes of the Act as the Chief Executive thinks fit.

Division 7—Specific power to require information

49—Specific power to require information

The Minister, the Chief Public Health Officer, a council or an authorised officer will be able to require a person to furnish any information relating to public health as may be reasonably required for the purposes of the Act.

Part 4—Public health plans

Division 1—State public health plan

50—State public health plan

The Minister will be required to prepare and maintain the State Public Health Plan. This plan is to set out principles and policies for achieving the objects of the Act and implementing the principles established under this Act. The plan will also comprehensively assess the state of public health in South Australia, identify public health risks and strategies to address those risks, identify opportunities to promote public health, and include information about related plans and policies.

Division 2—Regional public health plans

51—Regional public health plans

A council or, if the Minister determines or approves, a group of councils, must prepare and maintain a regional public health plan. The plan must be consistent with the State Public Health Plan. A regional public health plan will comprehensively assess the state of public health in the region, identify public health risks and provide for strategies for addressing and eliminating or reducing those risks, identify opportunities and outline strategies for promoting public health in the region, and include other relevant information. A council will be able to develop a regional public health plan in conjunction with the preparation of its strategic management plans under section 122 of the Local Government Act 1999.

52—Reporting on regional public health plans

A council will be required to prepare a report on the extent to which it has been able to implement its regional public health plan on a 2 yearly basis.

Part 5—Public health policies

53—Public health policies

The Minister will be able to prepare State Public Health Policies that relate to any area of public health in the State. A policy may specify matters that are to be taken to constitute risks to public health for the purposes of the Act, specify the scope of the general duty under Part 6 (including so as to specify that a breach of the policy will be taken to be a breach of the duty), set out standards associated with public health, or provide for other measures relevant to achieving an improvement to public health in the State.

54—Procedure for making policies

This clause sets out the procedures to be followed in relation to creating or amending a State Public Health Policy. The procedures will include a public consultation policy.

55—Reference of policies to Parliament

The Minister will cause a copy of each State Public Health Policy to be laid before both Houses of Parliament and the policy will be subject to disallowance by either House of Parliament.

Part 6—General duty

56—General duty

This clause creates a statutory duty that will require that a person must take all reasonable steps to prevent or minimise any harm to public health caused by, or likely to be caused by, anything done or omitted to be done by the person. In determining what is to be regarded as being reasonable for the purposes of this clause, regard must be had to the objects of the Act and to—

(a) the potential impact of a failure to comply with the duty; and

(b) any environmental, social, economic or practicable implications; and

(c) any degrees of risk that may be involved; and

(d) the nature, extent and duration of any harm; and

(e) any relevant policy under Part 5; and

(f) any relevant code of practice under Part 8; and

(g) any matter prescribed by the regulations.

However, a person will be taken not to be in breach of this duty if the person is acting—

(a) in a manner or in circumstances that accord with generally accepted practices taking into account community expectations and prevailing environmental, social and economic practices and standards; or

(b) in accordance with a policy or code of practice published by the Minister in connection with the operation of this Part; or

(c) in circumstances prescribed by the regulations.

A person who breaches the duty will not be liable to any civil or criminal action but may be liable to civil enforcement proceedings under Part 12.

Part 7—General public health offences

57—Material risk to public health

This clause creates a series of offences associated with the creation of a material risk to public health.

58—Serious risk to public health

This clause creates a series of offences relating to the creation of a serious risk to public health.

59—Defence of due diligence

It will be a defence to a prosecution under these provisions to prove that the defendant took all reasonable precautions and exercised all due diligence to prevent the commission of the relevant offence.

60—Alternative finding

A court will be able to find a person guilty of the commission of a lesser offence to the offence that has been charged.

Part 8—Prevention of non-communicable conditions

61—Declaration of non-communicable conditions

It will be possible for the Minister to declare a disease or medical condition to be a 'non-communicable disease' for the purposes of the Act if the Minister considers that the disease or medical condition is of significance to public health.

62—Minister may issue code of practice

The Minister will be able to issue a code of practice in relation to preventing or reducing the incidence of a non-communicable condition. Without limiting any other provision, a code of practice may relate to the manner in which—

(a) specified goods, substances or services are advertised, sponsored, promoted or marketed (including through the provision of certain information to consumers of certain goods, substances, or services);

(b) specified goods or substances are manufactured, distributed, supplied or sold (including the composition, contents, additives and design of specified goods or substances);

(c) buildings, infrastructure or other works are designed, constructed or maintained;

(d) the public, or certain sections of the public, are able to access specified goods, substances or services.

A code of practice may be particularly relevant to the operation of the general duty under Part 6.

Part 9—Notifiable conditions and contaminants

Division 1—Notifiable conditions

63—Declaration of notifiable conditions

The regulations will be able to declare a disease or medical condition to be a notifiable condition under the Act. The Minister will also be able to make emergency declarations.

64—Notification

This clause sets out a scheme for the notification of occurrences of notifiable conditions. A notification is to be made to the Chief Public Health Officer.

65—Report to councils

The Department—

(a) must, on a monthly basis, provide each council with a report on the occurrence or incidence of notifiable conditions in its area and any problems or issues caused by or arising on account of such diseases or medical conditions that may exist in its area; and

(b) must inform a council of the occurrence or incidence of any notifiable condition in its area that constitutes, or may constitute, a threat to public health.

66—Action to prevent spread of infection

The Chief Public Health Officer, or an authorised officer, will be able to issue directions or impose other requirements to prevent the possible spread of a disease constituting a notifiable condition.

Division 2—Notifiable contaminants

67—Declaration of notifiable contaminants

The regulations will be able to declare a contaminant to be a notifiable contaminant. The Minister will be able to make emergency declarations.

68—Notification of contaminant

This clause sets out a scheme for the notification of occurrences of notifiable contaminants.

Part 10—Controlled notifiable conditions

Division 1—Preliminary

69—Principles

Certain principles set out in Part 2 are relevant to these provisions.

70—Declaration of controlled notifiable conditions

The regulations will be able to declare a disease or medical condition to be a controlled notifiable condition. The Minister will be able to make emergency declarations.

71—Chief Public Health Officer to be able to act in other serious cases

This clause will allow the Chief Public Health Officer to take action against a particular person who is suspected of suffering from a serious disease, or of having been exposed to a serious disease, that has not been declared to be a controlled notifiable disease, and who is presenting a serious risk to public health. In a case where this clause applies, the serious disease will be taken to be a controlled notifiable condition and the Chief Public Health Officer will be able to take action in relation to the person as if he or she had such a condition. This special scheme would apply to the person for no more than 28 days (but the person may then become subject to other provisions of this Part).

72—Children

This clause clarifies the operation of this Part in relation to children. In particular, if a requirement is imposed in relation to a child, a parent or guardian of the child must take such steps as are reasonably necessary and available to achieve the requirement. It will also be possible to make modifications to the operation of this Part, insofar as it applies to children, by regulation. For the purposes of this clause, 'child' means a person under the age of 16 years.

Division 2—Controls

73—Power to require a person to undergo an examination or test

This clause applies in 2 sets of circumstances.

The first circumstance is where the Chief Public Health Officer has reasonable grounds to believe—

(a) that a person has a controlled notifiable condition and the person presents, has presented, or is likely to present, a risk to health through the transmission of a disease constituting that condition; or

(b) that an incident has occurred or a circumstance has arisen in which a person could have been exposed to, or could have contracted, a controlled notifiable condition.

The second circumstance is where—

(a) an incident has occurred or a circumstance has arisen, while a caregiver or custodian is acting in that capacity, in which, if any of those involved were infected by a disease constituting a controlled notifiable condition, the disease could be transmitted to the caregiver or custodian; and

(b) the Chief Public Health Officer has reasonable grounds to believe that the imposition of a requirement under this clause is necessary in the interests of a rapid diagnosis and, if appropriate, treatment of any person involved in the incident or connected with the circumstance (whether or not as a caregiver or custodian).

Essentially, the Chief Public Heath Officer will be able to require a person—

(a) to present himself or herself at such place and time as may be specified in order to undergo a clinical examination or to undertake (or be the subject of) tests, or both; and

(b) to comply with any requirement imposed by a person who may conduct the examination or carry out the tests.

The Chief Public Health Officer will be entitled to a copy of any report prepared on account of an examination or test carried out under this provision.

74—Power to require counselling

This clause will apply if the Chief Public Health Officer has reasonable grounds to believe that a person has, or has been exposed to, a controlled notifiable condition. In such a case, the Chief Public Health Officer will be able to require that the person participate in counselling, education, or other activities relevant to understanding the controlled notifiable condition or relevant impacts or implications.

75—Power to give directions

This clause will apply if the Chief Public Health Officer has reasonable grounds to believe that a person has, or has been exposed to, a controlled notifiable condition and the Chief Public Health Officer considers that an order under this clause is reasonably necessary in the interests of public health. In such a case, the Chief Public Health Officer may give directions to the person, including—

(a) a direction that the person reside at a specified place and, if considered to be appropriate by the Chief Public Health Officer, that the person remain isolated;

(b) a direction that the person refrain from carrying out specified activities (for example, without limitation, employment, use of public transport or participation in certain events), either absolutely or unless specified conditions are satisfied;

(c) a direction that the person refrain from visiting a specified place, or a place within a specified class, either absolutely or unless specified conditions are satisfied;

(d) a direction that the person refrain from associating with specified persons or specified classes of person;

(e) a direction that the person take specified action to prevent or minimise any health risk that may be posed by the person;

(f) a direction that the person attend meetings and provide such information as may be reasonably required in the circumstances;

(g) a direction that the person place himself or herself under the supervision of a member of the staff of the Department or a medical practitioner or other health professional nominated by the Chief Public Health Officer and obey the reasonable directions of that person;

(h) a direction that the person submit himself or herself to examination by a medical practitioner nominated by the Chief Public Health Officer at such intervals as the Chief Public Health Officer may require;

(i) a direction that the person undergo specified medical treatment, including at a specified place and time (or times);

(j) such other direction as to the person's conduct or supervision that the Chief Public Health Officer considers to be appropriate in the circumstances.

76—Review by District Court

A person who is the subject of a requirement under a preceding clause of this Division may apply to the District Court for a review of the requirement. The District Court is to hear and determine the application as soon as is reasonably practicable.

77—Power to require detention

This clause will apply if—

(a) the Chief Public Health Officer has reasonable grounds to believe that a person has, or has been exposed to, a controlled notifiable condition; and

(b) the person is or has been the subject of 1 or more directions under clause 75 and has contravened or failed to comply with a direction, or the Chief Public Health Officer considers that there is a material risk the person would not comply with 1 or more directions under that clause if they were to be imposed; and

(c) the Chief Public Health Officer considers—

(i) that the person presents, or is likely to present, a risk to public health; and

(ii) that action under this clause is justified.

An order under this clause will be that the person submit to being detained at a specified place while the order is in force.

An initial order will be for a period not exceeding 30 days. The Chief Public Health Officer will then be able to extend an order for additional periods not exceeding 60 days. However, a person will not be able to be detained for a period exceeding 30 days unless the Chief Public Health Officer has applied to the Supreme Court (constituted of a single Judge) for a review of the order. (The order will be able to continue pending the outcome of the review.) It will also be necessary to obtain a further authorisation by a Supreme Court Judge if the order is to operate for a period extending beyond 6 months. In addition, a person who is being detained must be examined by a medical practitioner at intervals not exceeding 30 days, or within such shorter periods as may be determined by a Supreme Court judge.

78—Review of detention orders by Supreme Court

A person who is the subject of a requirement under clause 77 may apply to the Supreme Court for a review of the relevant order.

79—Warrants

The Chief Public Health Officer will be able to apply to a magistrate for the issue of a warrant for the apprehension by an authorised officer of a person who has failed to comply with an order, requirement or direction under this Division, or that a person be the subject of any examination or test or other action required under this Division, or that a person be brought before a magistrate.

If a person is brought before a magistrate, the magistrate may order the detention of the person until the person is willing to comply with an order, requirement or direction under this Division.

A warrant may include a requirement that the person may be held in a place of quarantine or isolation.

A right of appeal will lie to a judge of the Supreme Court.

80—General provisions relating to orders, requirements and directions

This clause provides for various matters associated with the operation of this Division. In particular, it is confirmed that an order, requirement or direction may be given to a person on more than one occasion, that a person may be subject to a combination of orders, requirements or directions, and that the Chief Public Health Officer may vary or rescind any order, requirement or direction.

Furthermore, if the Chief Public Health Officer serves a notice or order on a person, the notice or order must be accompanied by a notice that—

(a) sets out the grounds on which the order or notice is made; and

(b) contains a statement of the person's rights under the Act (including a person's right to apply for a review under this Division); and

(c) contains any other information determined by the Chief Public Health Officer to be relevant or appropriate.

81—Duty to comply

It will be an offence, without reasonable excuse, to contravene or fail to comply with an order, requirement or direction under this Division.

Division 3—Related matters

82—Advisory Panels

The Chief Public Health Officer will be able to establish an advisory panel to assist him or her with respect to the management of a person who is, or a group of persons who are, the subject of an order, requirement or direction under this Part.

83—Interstate orders

This clause will allow an order under a corresponding law that provides for a matter that may be the subject of an order under this Part to have effect if the relevant person enters this State.

84—Protection of information

A document held or produced by the Chief Public Health Officer, or any other person acting in the course of official duties, for the purposes of this Part that relates to a particular person is not subject to access under the Freedom of Information Act 1991.

Part 11—Management of significant emergencies

85—Principles

86—Public health incidents

87—Public health emergencies

88—Making and revocation of declarations

89—Powers and functions of Chief Executive

90—Application of Emergency Management Act

These provisions relates to the management of public health emergencies and are based on those inserted into the Public and Environmental Health Act 1987 by the Statutes Amendment (Public Health Incidents and Emergencies) Act 2009.

Part 12—Notices and emergency situations

Division 1—Interpretation

91—Interpretation

A relevant authority under this Part will be the Chief Public Health Officer or a council.

Division 2—Notices and emergencies

92—Notices

A relevant authority will be able to issue a notice for the purpose of—

(a) securing compliance with the Act (including the general duty under Part 6 or a requirement imposed by regulation or a code of practice under the Act); or

(b) averting, eliminating minimising a risk, or a perceived risk, to public health.

A notice—

(a) must state the purpose for which it is issued; and

(b) may impose one or more of the following requirements:

(i) a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from a relevant authority;

(ii) a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions;

(iii) a requirement that the person take specified action in a specified way, and within a specified period or at specified times or in specified circumstances;

(iv) a requirement that the person take action to prevent, eliminate, minimise or control any specified risk to public health, or to control any specified activity.

93—Action on non-compliance with notice

If the requirements of a notice are not complied with, a relevant authority will be able to take any action required by the notice and recover its reasonable costs and expenses in doing so.

94—Action in emergency situations

This clause will allow an authorised officer to take emergency action to avert, control or eliminate a risk to public health.

An authorised officer will have specific power to—

(a) enter and take possession of any premises or vehicle (taking such action as is reasonably necessary for the purpose); and

(b) seize, retain, move or destroy or otherwise dispose of any substance or thing.

Division 3—Reviews and appeals

95—Reviews—notices relating to general duty

A person who has been issued with a notice to secure compliance with the general duty may apply for a review of the notice.

The notice of review will be to the Public Health Review Panel. This panel, in relation to a particular review, will be constituted by—

(a) the Chief Public Health Officer (who will be the presiding member); and

(b) 2 members of SAPHC selected by the Chief Public Health Officer for the purposes of the particular review; and

(c) any other person or persons selected by the Chief Public Health Officer in order to provide additional expertise on the panel.

96—Appeals

A person who has been issued with a notice under this Part will be able to initiate an appeal to the District Court. This right of appeal will include an appeal against the outcome of review proceedings.

Part 13—Miscellaneous

97—Tests on deceased persons

The Chief Public Health Officer will be able to authorise a test to be carried out on a deceased person if he or she has reasonable grounds to believe that the deceased person has had a condition of public health concern. A test or other procedure must be carried out by a medical practitioner or a person who has a qualification prescribed by the regulations. Nothing in this clause will allow the exhumation of a body.

98—Delegation by Chief Executive

The Chief Executive will be able to delegate a function or power under the Act.

99—Confidentiality

A person who obtains personal information in the course of official duties will be required to keep that information confidential unless the disclosure of the information is authorised under this clause.

100—Confidentiality and provision of certain information

This clause will allow the Minister to authorise a person employed or engaged by the State for the purposes associated with public health to have access to personal information about a particular person. However, the further disclosure of this information will be restricted under the terms of this provision.

101—Service of notices or other documents

This clause provides for the service of documents under the Act.

102—Immunity

This clause makes provision with respect to the liability of persons engaged in the administration of the Act. Personal liability will not arise for an honest act or omission but liability will instead lie against the Crown or, in the case of an officer, employee, agent or contractor of a council, against the council.

Furthermore, no action will lie against a person who in good faith and with reasonable care takes a sample of blood, urine or other material, conducts a test, or provides a report, for the purposes of the Act.

103—Protection from liability

This clause makes express provision to exclude civil liability for any failure of a designated authority to perform a function under the Act. (This provision is based on section 12A(13) of the Public and Environmental Health Act 1987.)

104—False or misleading information

It will be an offence to provide false or misleading information in connection with complying with a requirement or direction under the Act.

105—Offences

Proceedings for an offence against the Act will only be able to be brought by designated persons (including a person acting with the written authority of the Minister).

106—Offences by bodies corporate

A direction of a body corporate will be guilty of an offence if the body corporate is guilty of an offence unless the direction can prove that he or she could not be the exercise of reasonable diligence have prevented the commission of the offence by the body corporate.

107—Continuing offences

This clause provides for a continuing offence if an offence is constituted by a continuing act or omission.

108—Evidentiary provision

This clause will assist with providing evidence to a court about the existence and extent of a risk to public health by allowing an assessment of such a risk by a designated entity involved in the administration of the Act to be accepted as evidence about the risk in the absence of proof to the contrary.

109—Regulations

This clause provides for the making of regulations for the purposes of the Act.

Schedule 1—Related amendments, repeal and transitional provisions

Various Acts must be consequentially amended. It may be necessary to repeal the Public and Environmental Health Act 1987 in stages and accordingly provisions have been included to allow this to occur.

Debate adjourned on motion of Hon. T.J. Stephens.


At 1:02 the council adjourned until Thursday 25 November 2010 at 11:00.


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