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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-22 Daily Xml
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Parliamentary Committees

Social Development Committee: Public Health Act Review

The Hon. D.G.E. HOOD (16:17): I move:

That the final report of the committee on its review of the South Australian Public Health Act 2011, Part 1, be noted.

I want to acknowledge all those who have contributed to this review. On behalf of the Social Development Committee, I thank the state government agencies that gave evidence. I thank in particular the Chief Public Health Officer, Professor Nicola Spurrier, and her predecessor, Professor Paddy Phillips, for providing their very learned, high-quality evidence to this review. Their work and input into this review is commendable.

I also mention and thank the very knowledgeable and dedicated staff in Health Protection and Licensing Services at SA Health, Dr Chris Lease and Dr Kirsty Hammet. The committee is very grateful for your perseverance in providing responses and follow-ups to the committee's questions over the last 18 months. Thank you also to the staff of DPTI and the Department for Environment and Water for your presentations and evidence, some of which was very educative.

The committee would also like to thank the Local Government Association of South Australia and the individual councils that provided a written submission. Your evidence contained many practical considerations and was much appreciated. Thank you to the community organisations, non-government sector, universities, advocacy groups and research institutes for your very valuable input and to Environmental Health Australia, in particular Dr Kirstin Ross for her submissions. As presiding member, I also thank the committee members and secretariat for their work on this review.

It must be said that, as I stand before you in this place, the South Australia we knew when the Social Development Committee started its review of the South Australian Public Health Act 2011 was very different to the South Australia of today. We have had the global pandemic of coronavirus COVID-19 to thank for that. However, it must also be said that in the face of this pandemic our state's public health legislation has been purpose-built to protect against the types of devastating situations and outcomes that a pandemic can bring, and which we are witnessing again over the border.

In looking back at the drafting of this important statute, we can see the thinking, modelling and projections of what might happen to the health of our state if we did not act to bring our public health legislation into the 21st century. As some members here may recall, the previous Public and Environmental Health Act 1987 was in no way capable of providing for the kinds of public health risks we face today such as a pandemic like COVID-19 or heat stress in our suburbs from climate change or the rates of increase in obesity and mental illness in our children and young adults.

In providing for these possibilities, the act differs dramatically from the previous act and underscoring those differences is the idea that this legislation can instil into practice particular objects and principles which will further futureproof the health of all South Australians, and that is what the South Australian Public Health Act has been doing. Having said that, it may come as a surprise that the committee has made 85 recommendations to the Minister for Health and Wellbeing as a result of this review; however, these include some very minor finetuning aspects, many of which concern very technical provisions in some of the various regulations to the act.

Before attending to the substance of the review and what those recommendations concern, I will talk briefly about the changes that have occurred as a result of COVID-19. In March 2020, the South Australian parliament introduced a bill to amend parts 10 and 13 of the act to include provisions to certain powers of the Chief Public Health Officer (CPHO) and the services of notices related to orders under the act. The bill, called the South Australian Public Health (Controlled Notifiable Conditions) Amendment Act 2020, came into effect on 5 March this year. The amendments strengthen the coercive powers vested in the CPHO and, among other things, will allow the CPHO to give force to the existing directions, requests and impositions without first issuing a written notice.

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.

The modifications and amendments have been listed under the relevant parts of the act and the report of the committee in order to preserve accuracy. However, 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 the COVID-19 related changes as they will be a matter for further review and further report at some future stage.

To that end, the committee resolved that when the declaration of major emergency 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. It is true that a number of parts of the act that are pertinent to 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 regulation regimes of compliance and enforcement. It is to those aspects of the act I will now turn.

The evidence that the committee received showed that the majority of stakeholders, that is those in the business of administering this legislation, value and use the objects and principles in their day-to-day work but just as importantly can see how these two features of the act are benefiting their communities. The act, the subordinate legislation and policies supporting it are fit for purpose. It is clear from the evidence that it is an act that is modern, flexible and responsive to a range of public health considerations.

The addition of a general duty to require that a person 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 failsafe to enforce the subordinate legislation and raise awareness that there is a responsibility incumbent on us for the health of ourselves and each other.

By including powers for the Chief Public Health Officer to make a declaration of a prescribed containment, or where the spread of an infection is a risk to public health, 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 things that keep us healthy. Noncommunicable disease is one of the greatest risks to our state's health, and the act has shown that it is capable of providing ways to address such risks. This is a commitment to the future health of South Australians. In addressing these risks and in the administration 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.

Turning to local government, local government reported that they are generally pleased with the act and its functions; however, the evidence also showed that the main concern for local government was the need for stronger and improved consultation, collaboration and communication between the Department for Health and Wellbeing (which I will refer to as 'the department' from here) 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 was also identified as being crucial to announcing these partnerships, for example, where a multiorganisational response is needed to achieve appropriate public health outcomes. Local government is at the forefront of administering the regulatory regime of this 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 the councils' 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 that more tools and training are needed. Importantly, there is also a need for state government leadership in coordinating the multiagency approach in incidences of severe domestic squalor. Often there are underlying causes for this social issue and these need to be addressed as well. That takes a coordinated approach and is one that the act can provide.

Stakeholders welcomed 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, and South Australia Police and SA Health have been working together on implementing this policy.

Councils advised that 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 for what 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 where among suggestions from councils as deterrents to noncompliance. This was highlighted in 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 businesses offering services that were previously unavailable when the instruments were last reviewed and new categories for registration should be developed and implemented.

There are calls for clearer guidelines for issuing section 56 general duty notices. Councils, along with EHA of South Australia, 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 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, which I will refer to as 'the plans', and the public health policies, these were viewed favourably by stakeholders, with councils acknowledging an increase in the aspirational nature of their plans, with suggestions focusing on, firstly, improving the resourcing and implementation of public health strategies and, secondly, 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 were largely centred around the degree of clarity and ease in implementing and administering parts of the act effectively. For example, key concerns for local government were 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 by 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 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 that 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;

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;

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 towards 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 CPHO must be satisfied with before he or she should act. This includes making decisions about a person's location, activities from which they are to be restricted and actions they must undertake. Any decision made by the CPHO 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 Appeals 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 a request 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 a significant interoperability with the Emergency Management Act 2004, 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 (PHEMP), 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 be replaced by, sections of the Emergency Management Act. These parts have functioned well, having only be exercised for COVID-19.

The South Australia Police (SAPOL) 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 significant public health emergency should be removed. However, and as we have experienced now because of COVID-19, it is important that the principles of the act, which require balance to be maintained between the individual's rights and the safety of the community, is 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. That said, the committee notes the changes to the act as a result of COVID-19, which allows the department to act more quickly and efficiently in developing these safeguarding features, and it is also noted that these amendments did not abolish the rights of the individual to seek a review or appeal of any order or direction issued on them.

Looking at state government agencies, key matters highlighted by state government departments that gave evidence, such as the Department of Planning, Transport and Infrastructure (DPTI), chiefly the Office for Design and Architecture South Australia (ODASA) and the Department for Environment and Water (DEW), SafeWork SA and the South Australian Mental Health Commission related largely to policy concerns.

The inclusion of principles and objects of the act has created a broader public health approach with a focus on principles such as prevention, sustainability, population and equity, so that government agencies can achieve strategic outcomes in the areas of climate change, urban planning, green spaces and how our environment affects our mental health and wellbeing.

These matters have significance for both state and local governments going forward, with the State Public Health Plan demonstrating the objects and principles of the act. Other examples, such as the 30-Year Plan for Greater Adelaide, the Healthy Parks Healthy People program, and the Green Adelaide (Greener Neighbourhoods Grants Program), also demonstrate the act's principles in action. The act has seen a greater focus in policy and planning overall on a whole list of things, including attention to population health, greater promotion of health and how to reduce risks to health, addressing the social determinants of health, and addressing issues of access and equity.

A number of these features have been taken up by state government agencies through state and community-based projects and are evidenced in work being undertaken by DPTI-ODASA, and DEW, as well as by some of the peak organisations leading the research and discussions on public health, such as the South Australian Health and Medical Research Institute (SAHMRI), Flinders University and the Southgate Institute. Submissions from these organisations largely concern matters of equity and the social determinants of health for which the act is finetuned.

However, the committee recognises that there is still important work to be done in achieving equality in health care for our more vulnerable communities and closing the gap for Aboriginal and Torres Strait Islanders. The committee has made recommendations to address these concerns, including the provision of resources for the development of a broad reaching public health campaign to continue to address the social determinants of health by the newly-established Wellbeing SA.

To conclude the noting of this report, the act is performing well. It is responsive and flexible and has the scope to achieve more in addressing the public health concerns of the 21st century. With the subordinate instruments and tools, state, local and non-government agencies can work collaboratively to protect and promote public health in South Australia.

Through the development of partnerships between these agencies and congruent with the Health in All Policies approach, the act is working well to ensure that the health of all South Australians is futureproofed. While there is still work to be done, it is the committee's hope that the valuable contributions from all of the stakeholders and the recommendations made as a result of this review will benefit this work and keep the health of the people of our state safe. I commend the committee's report to the council.

Debate adjourned on motion of Hon. I.K. Hunter.

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