Vous êtes sur la page 1sur 32
DRAFT South Australian Public Health Bill 2009 Explanatory paper Department of Health August 2009
DRAFT South Australian Public Health Bill 2009 Explanatory paper Department of Health August 2009
DRAFT South Australian Public Health Bill 2009 Explanatory paper Department of Health August 2009
DRAFT South Australian Public Health Bill 2009 Explanatory paper Department of Health August 2009
DRAFT South Australian Public Health Bill 2009 Explanatory paper Department of Health August 2009
DRAFT South Australian Public Health Bill 2009 Explanatory paper Department of Health August 2009

DRAFT

South Australian Public Health Bill

2009

Explanatory paper Department of Health August 2009

DRAFT South Australian Public Health Bill 2009 Explanatory paper Department of Health August 2009

Explanatory paper South Australian Public Health Bill 2009 Draft for Comment

Table of contents

Foreword

1

Executive Summary: Policy Directions of the South Australian Public Health Bill 2009

2

Making a submission

3

1. Introduction

4

2. Background

5

3. The framework of the Bill

6

Objectives

6

Principles

6

Definitions

6

Role of the Minister for Health

6

Chief Public Health Officer

6

Role of Councils

7

South Australian Public Health Council

7

Public Health Review Panel

7

Power to substitute a council’s functions

7

General Duty to Protect Public Health

7

Offence of Causing a Risk to Public Health

8

Penalties

8

Planning for Public Health

8

Prevention of Non-communicable Disease

9

Infectious Disease Control

9

Related Acts

10

Policies and Regulations

10

4.

Explanation of parts, key clauses or sets of clauses

11

Part 1 – Preliminary

11

Part 2 – Objects, Principles and Interaction with other Acts

11

Principles to assist the administration of the Act (Clauses 5-14)

12

Development of Guidelines to assist in the application of principles in the administration of the Act (Clause 15)

12

Part 3 - Administration

13

Minister’s Functions (Division 1, Causes 17-19)

13

Chief Public Health Officer (Division 2, Clauses 20-25)

13

South Australian Public Health Council (Division 3 Clauses 26-36)

13

Councils (Division 4 Clauses 37-41)

14

Cooperation between councils for public health (Clause 38)

14

Power of the Chief Public Health Officer to act (Clause 39)

14

Council failing to perform a function under the Act (Clause 40)

15

Transfer of function of council at request of the council (Clause 41)

15

Authorised officers – State and Local (Division 5 – Clauses 42-46)

15

Emergency officers (Division 6 Clause 47)

15

Specific power to require information (Division 7 Clause 48)

15

Part 4 - State Public Health Plan

16

Part 5 - Regional Public Health Plans

16

Part 6 - General Duty

17

Part 7 – General Public Health Offences

17

Part 8 – Prevention of Non-communicable Disease

18

Part 9 – Notifiable conditions and micro-organisms

18

Declaration of notifiable conditions and notifiable micro-organisms (Clauses 59 and 63)

18

Notification (Clause 60)

18

Action to prevent the spread of infection (Clause 62)

18

Notifiable micro-organisms (Clauses 63-64)

19

Part 10 – Controlled Notifiable Conditions

19

Principles (Clause 65)

19

Declaration of a controlled notifiable disease (Clause 66)

19

Chief Public Health Officer to be able to act in other serious cases (clause 67)

19

Children (Clause 68)

19

Power to require a person to undergo an examination or test (Clause 69)

19

Power to require counselling (Clause 70)

20

Power to give directions (Clause 71)

20

Powers to require detention (Clause 72)

21

General provisions relating to orders, requirements and directions - duty to comply – warrants - review of orders (Clauses 73-76)

21

Advisory panels (Clause 77)

21

Tests on deceased persons (Clauses 78)

21

Interstate orders (Clause 79)

21

Protection of information (Clause 80)

21

Part 11 – Management of Significant Emergencies

22

Part 12 – Notices and Emergency Situations

22

Action in emergency situations (Clause 90)

22

Reviews – notices relating to general duty (Clause 91)

23

Part 13 – Miscellaneous

23

Confidentiality (Clause 94)

23

Provision of certain information (Clause 95)

24

Regulations (Clause 102)

24

South Australia Department of Health Explanatory paper South Australian Public Health Bill 2009

Draft bill for public comment

The Government proposes to introduce into the South Australian Parliament the South Australian Public Health Bill 2009. This Bill, subject to the outcomes of the consultation and Parliamentary process, will replace the current Public and Environmental Health Act 1987.

The draft Bill aims to provide for the protection of the health of the public of South Australia and to reduce the incidence of preventable illness, injury and disability and promote the health of the public of South Australia.

The draft Bill has been prepared for public comment. It does not represent the Government’s settled position.

Submissions are due by close of business on Wednesday 7 October 2009.

Foreword

Foreword

I invite all South Australians to consider the Government proposal to introduce new public health legislation into the Parliament.

The provisions for the proposed legislation have been the subject of discussion for some time in the community. Key interest groups, such as Local Councils which have significant public health responsibilities, and public health practitioners, such as environmental health officers, communicable disease specialists and epidemiologists, among many others all play a statutory role in protecting public health. Many of these interest groups and individuals have contributed to the development of this Bill.

This Bill is relevant to everyone in the community, not just public health specialists and Local Councils in their role as health authorities. All members and sectors of the community have both a personal and a collective responsibility to protect and promote the health of the public. For example, the proposed Bill recognises the fundamental responsibility each of us has in the prevention of transmissible diseases.

The Bill provides for modern, flexible public health regulations, policies and strategies that better protect and promote public health, as well as prevent avoidable injury, illness and disability.

Many chronic illness conditions are preventable. Chronic illness is an individual concern as well as a public health concern. For chronic illnesses to be effectively prevented and controlled they require individual care and self management as well as proven public health responses. It is now well understood that many of these so-called lifestyle related chronic conditions are heavily influenced by the social circumstances surrounding people. The social determinants of health include: neighbourhood design, access to recreational facilities, good housing and transport, environments which promote social cohesion, opportunities for education, employment and meaningful social participation. These social determinants of health can be beyond the simple exercise of individual responsibility and choice. Addressing and improving these social conditions requires coordinated action through proven public health approaches. The proposed Act provides a clear mechanism for achieving coordinated public health strategies at the state and local level by establishing new mechanisms that promote greater community focus on prevention and health promotion.

As a result of the proposals put forward by Professor Ilona Kickbusch during her residency under the State Government’s Thinker in Residence program, the Government has approved the implementation of the Health in All Policies approach. Proposals in this Bill will provide a clearer basis for ensuring that a Health in All Policies approach is effectively integrated into planning and decision making processes at the State and Local Government levels.

This Bill, if passed, will provide South Australia with forward looking legislation for public health that meets international standards. It will provide for systematic approaches to prevention and health promotion and stronger, more robust powers for protecting public health and for dealing with public health emergencies. It also enables South Australia to meet and respond to the public health challenges that will confront us in the 21 st Century.

Consultation on the Bill will occur over an eight week period with submissions due 7 October 2009.

I encourage you to provide feedback on the Bill and look forward to your response.

feedback on the Bill and look forward to your response. John Hill Minister for Health August

John Hill Minister for Health August 2009

DRAFT South Australian Public Health Bill 2009

page 1

Executive Summary

Executive Summary:

Policy directions of the South Australian Public Health Bill 2009

The Bill continues many of the provisions within the current Act but it also proposes a number of new ones. The main new provisions are that, the draft Bill:

> Provides the Minister with the overall responsibility for the administration of the legislation and requires the Minister to provide advice to and consult with other State Government agencies on proposals which have significant implications for public health.

> Establishes and defines the role of a new statutory position of Chief Public Health Officer (referred to as CPHO throughout the Bill).

> Proposes a definition of public health that will underpin the assessment of risk to health.

> Incorporates a set of explicit objectives reflecting the modern approach to legislation. The objectives establish the purpose of the Act and the core values, functions and outcomes that are required to achieve this purpose. They also provide clarity about the functions that will be undertaken to improve and protect public health.

> Incorporates several principles that aim to provide a clear framework for the process of public health decision- making and for also guiding the courts, public health officials and the public about how the rest of the Act should be interpreted.

> Establishes a new South Australian Public Health Council (SAPHC) which will consist of members appointed by the Governor and drawn from the same membership as the current Public and Environmental Health Council. Its membership will be expanded to include members from other fields such as environmental protection and communicable diseases, to reflect the broader scope of modern public health practice. The SAPHC will have responsibilities for providing strategic advice on public health and for monitoring of public health in South Australia.

> Establishes a separate entity of the Public Health Review Panel (Review Panel) which will review decisions made under the general duty to protect public health. Appellants with complex matters can be referred to the Administrative and Disciplinary Division of the District Court if necessary.

> Provides for a general duty to protect public health which will not entail an offence nor will it establish a civil liability. Enforcement mechanisms will be affected by way of remediation notices. An offence may occur if there

is a failure to comply with a remediation order. A person can seek a review of a notice by the Review Panel.

> Establishes measures designed to address contemporary public health concerns through a more comprehensive planning system for public health across state and local government.

> Permits Local Councils to cooperate in the provision of reports or plans where a public health matter concerns two or more Local Councils.

> Provides for a more clearly defined power to substitute a Local Council’s public health functions if corrective action does not occur following a direction from the Minister to fix a public health problem. Council powers will be removed for a specified period of time until the problem is resolved.

> Provides for a clear scheme for the management and control of persons with controlled infectious disease whose behaviour may be placing others at risk. It incorporates clearer management protocols and provides for

a compulsory scheme of clinical examination, counselling, direction, treatment orders and detention or isolation orders. The elements of the scheme are applied in a graded way depending on the severity of the public health risk and the degree of personal cooperation or voluntary compliance.

page 2

DRAFT South Australian Public Health Bill 2009

Making a submission

Making a submission

A copy of the Bill and this Explanatory Paper can be obtained from the following website:

Hard copies of both documents are in limited supply but if required telephone: (08) 8226 6717 or by email on Health.PublicHealthBill@health.sa.gov.au. The documents will be mailed to you. If you require them urgently, you can request to pick them up. The address for this is:

The Department of Health Ground Floor 11-16 Hindmarsh Square ADELAIDE SA 5000

Office hours: Monday to Friday from 9.00am to 5.00pm.

You are invited to make any comments you wish in relation to the Bill. A response template will be available on the website and you are invited to use it to provide feedback.

Submissions should be emailed to the email address provided below. If posted, an electronic copy (floppy disc only) should be attached with the hard paper copy and mailed to the contact address for responses.

Submissions must be received by 5.00pm Wednesday 7 October 2009.

Contact details for submissions:

Draft South Australian Public Health Bill 2009 Principal Policy Officer Policy and Legislation Department of Health PO Box 287 Rundle Mall, ADELAIDE SA 5000

Email: Health.PublicHealthBill@health.sa.gov.au

Telephone:

Kay Anastassiadis: (08) 8226 6717

Facsimile:

(08) 8226 6600

DRAFT South Australian Public Health Bill 2009

page 3

Introduction

1.

Introduction

Public health refers to the organised efforts of society, both government and others, to ensure the population’s health.

It has been recognised for some time that the current Act, the Public and Environmental Health Act 1987, does not

adequately reflect the significant changes that have taken place in public health policy and practice in the last twenty years. Additionally, it does not meet modern public health legislative requirements that have since been identified. These include the need to incorporate mandatory elements of new International Health Regulations developed by the World Health Organisation and ratified by Australia.

A previous review of this legislation had been commenced in June 2000. This review identified these concerns as

well as the need to consider more effective measures for investigating infectious diseases, for harmonising environmental health concerns with environmental law and ensuring the Act was consistent with the principles

of National Competition Policy reform. A discussion paper was released in 2000 and 55 submissions were received

in response, primarily from local government but also environmental health officers, public health and public health

law academics.

A number of other public health concerns have since emerged such as pandemic flu, Severe Acute Respiratory

Syndrome (SARS), and the management of persons with Human Immunodeficiency Virus/ Auto Immune Deficiency Syndrome (HIV/AIDS) whose behaviour may place others at risk. Obesity and chronic diseases which are preventable have also emerged as major public health issues. These issues underline the need for new flexible legislation to respond appropriately to these concerns and others that may arise in the future.

The development of a new South Australian Public Health Act is a major initiative and election commitment

of the South Australian Government.

A review of the legislation was commenced in 2006. On the advice of key interest groups such as the Local

Government Association of South Australia (LGASA), councils and Department of Health staff working in public

health, the review involved consultation on the development of agreed provisions for an exposure Bill.

On 10 March 2009, Cabinet gave its approval to permit the drafting of a new South Australian Public Health Bill.

This Explanatory Paper provides a plain English explanation of the draft South Australian Public Health Bill 2009 in relation to the framework of the Bill and the way the proposed legislation will operate including the relationship between clauses. It also provides a brief explanation of key clauses or parts. The Explanatory Paper should be read in conjunction with the Bill.

page 4

DRAFT South Australian Public Health Bill 2009

2.

Background

Background

The provisions of the existing Public and Environmental Health Act 1987 were developed to deal with public health issues of the early 20 th Century. It does not reflect the changes that have taken place in public health legislative frameworks, policy and practice in the last twenty years. Such changes include new mandatory International Health Regulations (IHR) developed by the World Health Organisation. Australia is a signatory to the IHR and State legislation is required to reflect these provisions.

The reviews and consultations have noted that the current Act has a number of limitations which prevent it from effectively meeting modern 21 st Century public health concerns. These limitations include:

> The lack of an explicit definition of public health and what constitutes the essential scope and functions of public health.

> The emergence of a number of other public health concerns such as pandemic flu, Severe Acute Respiratory Syndrome (SARS), and the management of persons with Human Immunodeficiency Virus/ Auto Immune Deficiency Syndrome (HIV/AIDS) whose behaviour may place others at risk, which cannot be properly dealt with under the current Act.

> Problems in the exercise of powers in relation to direction and detention of persons who are at risk to others in the community, and who do not comply voluntarily with practices that can assure the health and safety of others.

> The lack of any provisions for responding to increased lifestyle-based conditions such as obesity and chronic diseases which have emerged as major public health diseases and now constitute a key area for public health intervention and prevention.

> the current Act (until recently amended) did not have sufficient provisions for dealing with public health emergencies.

> The lack of provisions for dealing with prevention and health promotion aspects of public health.

> The lack of provisions for dealing with complex public health issues which include significant environmental or social factors (e.g. public health implications of climate change, addressing health inequalities and the social determinants of health).

The draft Bill provides a new legislative framework for the protection and promotion of public health. This framework aims to meet emerging public health challenges and provides for greater flexibility and enabling measures to advance and protect public health and safety. It will also continue the traditional public health focus on sanitation issues and public health nuisances but will provide more effective measures for responding to these issues.

These limitations have also highlighted the need for greater flexibility in the legislation to respond appropriately to these concerns and any others that may arise in the future.

DRAFT South Australian Public Health Bill 2009

page 5

The framework of the Bill

3. The framework of the Bill

This section aims to provide a very brief overview of the framework of the Bill and how it is expected to operate. Further detail is provided in relation to key parts, clauses etc in the next section.

Objectives

The current Act does not have explicit objectives. The modern approach to legislation is to include broad objectives in legislation to make it clear what the specific purpose of the Act is and to identify the core values, functions and outcomes that are required to achieve the purposes of the Act. The Bill therefore includes a number of objectives which are based on the essential functions outlined in the international public health law literature and in similar new legislation established in other States and Territories. They aim to provide clarity about the functions that will be undertaken to improve and protect public health.

Principles

The Bill incorporates several principles that intend to provide an explicit framework for the process of public health decision-making. They will also provide a framework for guiding the courts, public health officials and the public about how the rest of the Act should be interpreted. These principles aim to ensure that the Act will be flexible and enabling, for example, they may permit action to be taken where there may not be sufficient scientific evidence at the time but the circumstances warrant and justify action for precautionary reasons. The provisions propose that there be

a number of principles that would guide decision-makers regarding any decision or order under the Act.

These principles include:

> the precautionary principle

> the principle of appropriate regulation

> the principle of prevention of public health risks

> the principle of sustainability

> the principle of equity

> the principle of a focus on populations

> the principle of participation which recognises the community of interest in public health

> the principle of partnership.

Guidelines will be developed to support the application of these principles in decision-making.

Definitions

The Bill incorporates a definition of health and public health. The definitions underpin the guidance for the assessment of risk to health provided for in the Bill.

Role of the Minister for Health

This Bill describes the role of the Minister. The proposed provisions provide the Minister with overall responsibility for the administration of the legislation and responsibility for protecting and promoting public health. It establishes an explicit framework for the Minister to provide advice to and consult with other State Government agencies when proposals which have significant implications for public health are being considered. This statement of the Minister’s role underpins a Health in All Policies approach designed to ensure that health factors are properly considered across relevant areas of public policy and government decision making. The Minister is required to work with Local Government on public health issues but the Minister retains final responsibility (as is the case under the current Act) and can hold Local Government accountable for its role under the legislation.

Chief Public Health Officer

The Bill establishes the statutory position of Chief Public Health Officer. This position will provide for a single point of reference, advice and expertise on public health matters for the Minister, the Department of Health, other Government agencies, Parliament and the public of South Australia. This position ensures that there will always be

a recognised position providing direct expert advice, and undertaking and ensuring the continuance of vital public health activities within the South Australian health system.

page 6

DRAFT South Australian Public Health Bill 2009

The framework of the Bill

Role of Local Councils

The current Act establishes Local Councils as local public health authorities. It is proposed that the Bill will continue the current scheme for sharing responsibility for public health between central authorities and local authorities. The Bill aims to provide clarity concerning the roles of Local Councils and the activities they need to undertake in order to fulfil their public health responsibilities.

South Australian Public Health Council

The current Act establishes a Public and Environmental Health (PEH) Council. The Bill proposes a new South Australian Public Health Council drawn from the same membership as the PEH Council i.e. Local Government, environmental health officers at the Local Government level and persons with expertise in public and environmental health, but it will also include members drawn from the fields of environmental protection, health promotion, communicable diseases and the non-government sector. This membership reflects the broader range of the parties involved in modern public health practice.

The new South Australian Public Health Council has clearer and more specific terms of reference and clearer responsibilities for providing strategic advice on public health and for monitoring public health status of South Australians. Its role aligns with the new position of Chief Public Health Officer since it will provide advice to the Chief Public Health Officer in the performance of his or her duties.

Public Health Review Panel

The current Act provides for the PEH Council to constitute a special review committee to hear appeals relating to the protection of public health. In its stead, the Bill establishes a Public Health Review Panel (the Panel). Matters which will be the subject of review by the Panel are decisions made under the general duty to protect public health. The Panel is a separate entity from the South Australian Public Health Council but will draw its membership from the Council membership. The Bill provides a capacity to include persons with special expertise as required on a Panel. Discretion is provided to the Chief Public Health Officer to not hear a matter or to cease hearing a matter and refer the appellant to the Administrative and Disciplinary Division of the District Court if necessary. This provision would ensure that a complex matter is more appropriately heard by the District Court.

The Bill separates the roles and responsibilities of the South Australian Public Health Council from the Public Health Review Panel. The SAPHC will focus on its strategic role whereas the Public Health Review Panel provides a better mechanism for the review of decisions made under the legislation.

Power to substitute a Local Council’s functions

Under section 12A of the current Act, the Public and Environmental Health Council can take such action it considers appropriate, including the removal of a Local Council’s powers and transferring them to the Minister if, after a process of consultation, it forms the opinion that a council has failed to discharge its duty under the Act.

These provisions have never been invoked. The Bill proposes that these powers be more clearly defined and be more appropriately exercised by the Minister. The Bill establishes a provision for corrective action that is undertaken in a staged and managed way which will include the issuing of directions by the Minister and the removal of Local Council powers for a specified period of time until the public health problem is satisfactorily resolved.

The power to remove Local Council powers more appropriately resides with the Minister, as the person charged with overall responsibility for the Act. The Chief Public Health Officer, together with the South Australian Public Health Council, will provide the Minister with advice and the Chief Public Health Officer will undertake corrective action on the Minister’s behalf. It should be noted that any action contemplated by the Chief Public Health Officer to correct or resolve the public health issue must take into account the proper functioning of a council and the delivery of its other vital functions and services.

General Duty to Protect Public Health

The Bill provides for a general duty to protect public health. This mirrors similar general statutory duties for example, in the Environment Protection Act 1993, for the protection of the environment, and in the Occupational Health, Safety and Welfare Act 1986, for the protection of occupational health and safety. In a similar manner to the statutory duties in these Acts, the general duty to protect public health will not entail an offence nor will it establish a civil liability. It aims to provide a strong message for the community on the importance of public health and the need for mutual responsibility in order to sustain it. The provisions enable the development of guidelines and policies to support this general duty. Enforcement mechanisms will occur through remediation notices. An offence may occur if there is a failure to comply with an order (allowing for a defence of reasonable excuse).

DRAFT South Australian Public Health Bill 2009

page 7

The framework of the Bill

Offence of Causing a Risk to Public Health

Recently modernised public health legislation in the ACT, Queensland, Tasmania and Victoria and the Western Australian draft Public Health Bill have all adopted a risk assessment framework, as proposed in the National Public Health Partnership paper: The Application of Risk Assessment Principles to Public Health Legislation. The Bill provides for a similar scheme of risk assessment for defined material risks, serious risks and immediate risks to public health. It aims to provide guidance to those who will administer the new Act on how risk assessments will be undertaken. It makes provision for a graded approach to action and remediation depending on the immediacy and severity of the risk. As such the Bill provides for a modern framework for the assessment of public health risks which can be flexibly applied to any situation, thereby future-proofing the proposed Act against unanticipated public health problems, and providing protection for the public against unforseen public health risks.

Penalties

Penalties for causing a risk to health are increased to reflect proper concern for public health and a provision is also made for continuing offences which mirror similar provisions in the Radiation Protection and Control Act 1982 and the Environment Protection Act 1993.

The Bill gives the Court the power to make an alternative finding. For example, where a person is charged with an offence of causing serious risk to health and the court believes it is only a material risk to health, the court can find the person guilty of the lesser charge, or where the court is not satisfied that the act was caused intentionally or recklessly, it can find the person guilty of the lesser charge.

Planning for Public Health

The Bill proposes a scheme of public health planning at the local, regional and statewide level that is under the general direction of the Minister and is undertaken by councils and a range of identified partners at a local and regional level and by the Department of Health at a statewide level. This provision for planning for public health will provide the means by which responsibilities conferred on the Minister and councils will in part be discharged. These provisions are consistent with schemes developed in the previous and current Victorian public health legislation and in the Western Australian Draft Public Health Bill.

The Minister will be required to determine high level statewide public health goals and priorities. These goals and priorities are expected to be determined by having regard to national and international policy contexts, analysis of prevailing public health issues and population health status in South Australia. The Minister will determine these goals and priorities after consultation with councils and the South Australian Public Health Council. The proposed State public health plan and local government public health plans will have regard to these goals and priorities.

Section 44 of the current Act only provides for Local Councils and the Department of Health to report on public health activities; there is no corollary to plan for public health. Public health practice already incorporates the need for planning. For example, the Department of Health has established a Strategic Plan for Public Health, as part of its suite of planning frameworks. Several councils have also moved in advance of any proposed legislative change and have already introduced public health planning as part of their responsibilities for public health in their area. The scheme proposed in the Bill aligns requirements for public health planning with already existing obligations on councils to engage in strategic management planning under section 122 of the Local Government Act 1999. The provisions proposed in the Bill provide for a scheme whereby Local Councils can incorporate public health planning into their existing strategic planning framework. The intention behind this provision is to streamline effort by having a combined planning process.

The responsibility for public health planning by Local Councils is aligned with their already existing strategic management planning processes under the Local Government Act 1999 and is congruent with their responsibilities as defined in section 7 of that Act.

The Bill proposes a voluntary scheme of nominated public health partners which include State Government health agencies, together with other sectors of Government, the non-government sector and businesses agreeing to work with Local Councils on relevant and identified public health issues. In so doing, these agencies will agree to hold themselves mutually accountable with Local Councils for relevant priorities and will report on their agreed actions contained in plans developed with Local Councils.

page 8

DRAFT South Australian Public Health Bill 2009

The framework of the Bill

Prevention of Non-communicable Disease

Since the latter half of the 20th century, non-communicable diseases and chronic conditions have taken over from infectious diseases as primary causes of morbidity and mortality. Cardiovascular disease, certain types of cancer, diabetes, respiratory conditions such as asthma and musculoskeletal diseases are all now major public health challenges for the entire population. The emergence of these conditions is directly related to lifestyle opportunities and choices and to the social, physical and economic environments which characterise modern societies. The proposed provisions in the Bill will provide improved opportunities to address these health issues.

The Department of Health, several other State Government agencies, the non-government sector and other organisations are active in a range of strategies aimed at illness prevention and health protection and promotion. Public health planning, as outlined previously, will significantly strengthen and coordinate these efforts. This section of the Bill provides the means by which declared diseases can be identified and permit the development of codes of practice which address ways in which the incidence of disease can be prevented, monitored, reduced, managed and controlled. The Bill clearly states that these codes of practice are not for the purpose of regulation of individual lifestyle choices or clinical practice. Rather, their purpose is to address the policy context and causal factors which underpin many lifestyle issues.

Infectious Disease Control

The Bill proposes 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 over the last century thanks largely to successes in public health strategies, immunisation programs, better living conditions and advances in health care. However, since the outset of this century, infectious diseases pose new and unanticipated risks arising from 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 to name a few likely causes. The SARS outbreak in Asia and Canada are regarded as an early warning of what may potentially occur.

The Bill retains the two categories of notifiable disease and controlled notifiable disease. The latter category provides for a range of containment and control powers which are discussed below. In addition the Bill provides for conditions which may be a series of symptoms and other clinical signs where there is no immediately identifiable agent or disease, to be declared by the Minister without there being a regulation, and to operate for six months in the first instance. This provision will allow for rapid notification and for appropriate public health action to be taken as may be necessary when dealing with a serious and potentially unknown infectious threat in a context of scientific uncertainty.

The Bill provides a clearer scheme for the management and control of persons with controlled infectious disease whose behaviour may be placing others at risk. This system incorporates provisions of the World Health Organisation’s International Health Regulations (IHR). Australia is a signatory to these regulations and, as such, it is mandatory to ensure consistency with IHR. The most significant IHR provisions for sub-national jurisdictions are participation in a national reporting system and the incorporation of a set of principles which 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. These two provisions are incorporated in the principles.

The Bill also incorporates clearer management protocols that are congruent with recent national and state based reviews of this area. They provide for a compulsory scheme of clinical examination, counselling, direction, treatment orders and detention or isolation orders. These elements of the scheme are applied in a graded way depending on the severity of the public health risk and the degree of personal cooperation or voluntary compliance. The scheme, whilst incorporating measures in the current Act, extends and strengthens their application to provide a more comprehensive management system.

DRAFT South Australian Public Health Bill 2009

page 9

The framework of the Bill

Related Acts

The barriers that exist between jurisdictions have been a significant impediment to the management of infectious disease and other public health issues. To overcome this, the Bill provides for the recognition of related Acts in other jurisdictions. A related Act is any Act of another State or Territory whose scope and objects are similar to the South Australian legislation and as determined by the regulations. This provision will have an effect in two sections of the Bill, that is:

> firstly, if an order to contain the spread of a controlled notifiable disease is made under a related Act, and the terms of that order could, in general terms, have been made under South Australian legislation, and the person to whom that order relates comes to South Australia, then the order made under the related Act is deemed to continue as an order made under an equivalent section of the new Act

> secondly, in relation to confidentiality provisions, the Bill permits a clearer exchange and flow of vital public health information for the identification and control of the spread of disease by stating that disclosure of certain information can be made in the course of official duties to those:

> engaged in the purposes of their official duties in the course of administering a related Act, or

> to a person in the course of official duties with an organisation compiling national surveillance data on disease and which has been declared by the Minister to be such an organisation.

Policies and Regulations

The Bill provides for the development of regulations and policies to assist in the administration of the new Act. All the regulations in the current Act will be transitioned into new regulations.

page 10

DRAFT South Australian Public Health Bill 2009

Explanation of parts, key clauses or sets of clauses

4. Explanation of parts, key clauses or sets of clauses

Part 1 – Preliminary

(Clauses 1-3)

This section deals with formal requirements such as the short title of the Act (Clause 1), the commencement of the Act (Clause 2) and interpretation of key terms used within the Bill, that is, what each term will mean for the purposes of this Act. Interpretation is provided for a number of key terms which include, among others, the following:

> Controlled notifiable condition

> Notifiable condition

> Public health.

The interpretation of the term “public health” is essential to the operation of the legislation and underpins the proposed Act in its entirety. The current Act does not have a definition of public health. The definition of public health is meant to assist in identifying what constitutes a public health matter.

This interpretation is also further supported by clause 3 (2) which indicates that without limiting the definition of public health in the Interpretation, public health can also involve a combination of policies, programs and safeguards that are designed to:

> Protect, maintain or promote the health of the community at large. This can occur where one or more persons may be the focus of any safeguards, action or responses.

> Prevent or reduce the incidence of disease, injury or disability within the community.

This clause defines the scope of public health in relation to the community and what actions it might entail. This clause forms a scheme with other clauses in the Bill in relation to the promotion and protection of public health.

Part 2 – Objects, Principles and Interaction with other Acts

(Clauses 4-16)

Objects (Clause 4)

Objects are proposed for the Act. There are ten objects which establish the framework of the Act. They outline the range of public health activities that are required to be undertaken to benefit the health and wellbeing of the individuals and communities. These objects will apply to all agencies that have a responsibility for specific provisions under the Bill such as the Department of Health and Local Councils.

The establishment of the objects intends to reflect the strategic intent of the legislation and permits a clear understanding of its scope.

The objects are:

> To promote health and wellbeing of individuals and communities and to prevent disease, medical conditions, injury and disability through a public health approach. This object focuses on both promotion and prevention and identifies a range of health matters that may be prevented by the adoption of a public health approach as defined by Clause 3 (2)

> To protect individuals and communities from risks to public health and ensure as far as practicable a healthy environment for all South Australians and particularly those who live within disadvantaged communities. This object establishes a responsibility for managing risks to public health

> To provide for the development of effective measures for the early detection, management and amelioration of risks to public health. This object requires population monitoring and other systematic measures for the identification and earliest possible action to prevent risks to public health

> To promote the provision of information about risks to public health

> To encourage individuals and communities to plan for, create and maintain a healthy environment

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

DRAFT South Australian Public Health Bill 2009

page 11

Explanation of parts, key clauses or sets of clauses

> To provide for the prevention or early detection, management and control of diseases, medical conditions and injuries of public health significance

> To monitor disease and health conditions so that prevention or early detection activities can be undertaken

> To collect information about the incidence and prevalence of diseases and other health risks for research or public health purposes

> To establish a scheme outlining the public health functions and responsibilities of state and local governments.

The Minister and other persons or bodies that administer the Act will be required to consider the objects and to pay attention to and further them as appropriate.

Principles to assist the administration of the Act (Clauses 5-14)

Clause 5 requires that in administering the Act and in furthering the objects of the Act, consideration and attention has to be given to the 8 principles that have been identified. These principles include:

> The precautionary principle

> The appropriate regulation principle

> The sustainability principle

> The principle of prevention

> The population focus principle

> The participation principle

> The partnership principle

> The equity principle.

These principles will be supported by guidelines which will outline the application of these principles. For example, the precautionary principle recognises that if there is a perceived serious risk to public health, the lack of full scientific certainty should not be used as a reason for postponing action to prevent or abate a risk. Further specific steps are identified to ensure that decision-making and action are proportionate to the degree of public health risk involved and that this is guided by specific requirements such as undertaking:

> careful evaluation of any steps that need to be taken to avoid any serious harm to public health

> assessment of the risk-weighted consequences of options

> action to protect the public from identified public health risks whilst minimising disruption to an individual’s activities, the community’s functioning and commercial activity.

Clause 14 provides specific principles which apply to Parts 10 and 11 which respectively deal with controlled notifiable conditions and the management of significant emergencies. There is an overriding principle that members of the community have a right to be protected from a person whose infectious state or whose behaviour may present a risk of transmission of a controlled notifiable disease. A person with a controlled notifiable disease has to avoid placing other people at risk. A person should also act to not place him or herself at risk of contracting a controlled notifiable disease. In addition, anyone who is subject to an order or requirement under Part 10 or 11:

> Will have his or her privacy respected and patient confidentiality preserved

> Will be afforded care and treatment without discrimination except that needed to protect public health

> Will be given opportunity to participate in decision making processes and will be given reasons about decisions

> Will be subject to restrictions proportionate to the risk they present to others.

Development of Guidelines to assist in the application of principles in the administration of the Act (Clause 15)

Clause 15 provides that the Minister may prepare or adopt guidelines that relate to the application of principles contained within the Act. The Minister will need to consult with the South Australian Public Health Council (SAPHC) in the preparation of any guidelines or before their adoption.

Any person or body involved in the administration of the Act will need to take account of and use the guidelines in making decisions about public health matters. This section of the draft Act will in the majority of cases apply to environmental health workers or other public health workers who administer the provisions of the legislation.

page 12

DRAFT South Australian Public Health Bill 2009

Explanation of parts, key clauses or sets of clauses

Part 3 - Administration

(Division 1 Clauses 17-19, Division 2 Clauses 20-25, Division 3 Clauses 26-36, Division 4 Clauses 37-41, Division 5 Causes 42-46, Division 5 Clauses 42-46, Division 6 Clauses 47, Division 7 Clause 48)

This Part sets out the Minister’s role and functions. It establishes the statutory position of the Chief Public Health Officer. It also establishes the statutory body: the South Australian Public Health Council.

Minister’s Functions (Division 1, Causes 17-19)

The Minister’s functions include:

> Furthering the objects of the Act by taking action to preserve and protect public health

> Promoting standards for public and environmental health by making sure there are effective measures to implement the Act

> Developing policies or codes of practice for dealing with the scope of duty under Part 6, or any risks to public health or setting standards with anything relevant to public health

> Ensuing co-operation or coordination for national or international action for public health

> Advising Government about health promotion and protection. The Minister is to be consulted in the development of other Government policies that may have a major impact on public health.

The Minister can require reports to be provided by designated authorities such as the Chief Public Health Officer, the South Australian Public Health Council (SAPHC), a government department or agency or a council or council subsidiary.

The Minister can delegate a function or power held under the Act to a specified person or body or person in a specific office or position under specified conditions.

Chief Public Health Officer (Division 2, Clauses 20-25)

The Bill establishes the statutory position of Chief Public Health Officer which is appointed by the Governor. The functions of this position include:

> Developing and implementing strategies to promote and protect public health

> Ensuring compliance with this and other designated health legislation

> Advising the Minister and Chief Executive about proposed legislative and administrative changes to public health

> Establishing health practitioner networks and fostering collaborations and coordination to promote public health

> Investigating and reporting on matters of public health significance.

The Chief Public Health Officer can ask for the participation of any public authority if its assistance might be useful in dealing with a potential situation that might result in an increased risk of avoidable death or illness. A public authority has to provide a response outlining what relevant steps are being taken or might need to be taken to assist in reducing or preventing this risk.

The Chief Public Health Officer can delegate a function or power held under the Act.

South Australian Public Health Council (Division 3 Clauses 26-36)

The South Australian Public Health Council (SAPHC) is established and will have a membership appointed by the Governor on the Minister’s nomination in the following sectors or areas of expertise:

> Local government

> Public health activities at the local government level

> Public health

> Environment protection law or environmental management

> Health promotion

> Communicable diseases prevention and control

> Non-government community sector activities relevant to public health.

DRAFT South Australian Public Health Bill 2009

page 13

Explanation of parts, key clauses or sets of clauses

SAPHC functions include assisting and advising the Chief Public Health Officer on:

> The protection and promotion of public health

> Establishing systems for strategic planning for public health

> Developing health plans under the Act

> Strategies ensuring a skilled public health workforce.

> Programs for promoting public health research

> Preparation of the biennial report

> Setting standards and qualifications for authorised officers.

The Bill outlines how the SAPHC will conduct its business. The SAPHC can establish committees and subcommittees and it can delegate a function or power that it has under the Act.

Councils (Division 4 Clauses 37-41)

Local Councils will have the following functions under the Act:

> Take action to preserve or protect public health

> Cooperate with other authorities involved in the administration of public health under the Act

> Provide or ensure immunisation programs are available

> Ensure adequate sanitation measures are in place

> Ensure businesses do not adversely affect public health

> Identify any risks to public health

> Ensure remedial action is taken to reduce or eliminate risks to public health

> Assess current or proposed activities and developments to determine and respond to any public health impacts or potential impacts

> Provide or support the provision of educational information about public health or to support activities that preserve or promote public health.

Cooperation between councils for public health (Clause 38)

Local Councils share boundaries and often this means that one or more councils can be affected by a public health concern and may be required to respond. Under the Act, councils can work separately or together to perform functions or exercise powers under the Act.

The Chief Public Health Officer can also ask councils to collaborate if they share a common public health concern. Local Councils are required to indicate how they will respond to such a request to collaborate within 28 days.

Power of the Chief Public Health Officer to act (Clause 39)

The Bill gives the Chief Public Health Officer the power to act on a public health risk, where two or more Local Councils are involved and action is needed to preserve, protect or promote public health and to exercise any power conferred on a Local Council. The Chief Public Health Officer can take such action after taking reasonable steps to consult with the relevant councils and with the SAPHC.

If the Chief Public Health Officer believes that action is urgently needed to deal with the risk, then action can be taken after consultation with the Minister. Local Councils have to be subsequently advised about any action taken on this basis.

page 14

DRAFT South Australian Public Health Bill 2009

Explanation of parts, key clauses or sets of clauses

Council failing to perform a function under the Act (Clause 40)

The Bill recognises that it is important that the public continues to be protected should there be a failure by a Local Council to perform a function for which it is responsible under the Act. If the Minister believes a Local Council has failed, then the Minister has to first consult with the council. If the Minister considers the Local Council’s failure is significant then, after consulting the SAPHC, the Minister can give a direction to the Local Council to perform the function.

If a Local Council does not comply with the Minister’s direction, the Minister can withdraw the Local Council’s powers

and give them to the Chief Public Health Officer. Before doing this, the Minister must give notice in writing to advise

the Local Council of the course of action and reasons for it and invite the council to provide a submission. The Minister must discuss the matter with the Local Council if asked to do so. The Minister must also consult with the Chief Public Health Officer and the SAPHC if needed.

Once a notice is served and published in the Gazette, the Chief Public Health Officer or delegate can undertake the public health functions within the Local Council as if they are the Local Council authority. This can involve:

>

Giving directions to council staff with which they must comply

>

Using council equipment and facilities.

In

this circumstance, any act by the Chief Public Health Officer will be considered an act of the council.

Transfer of function of council at request of the council (Clause 41)

Local Councils can request that a function of the council be undertaken by the Chief Public Health Officer. Once this

is agreed and the function is transferred by notice in the Gazette, the Chief Public Health Officer can act for the Local Council and any required action will be considered an act of the Local Council. This clause also permits the use of Local Council equipment and facilities for the transferred functions.

Authorised officers – State and Local (Division 5 – Clauses 42-46)

Like the current Act, the new Act allows the Minister to appoint State authorised officers – usually called public health or environmental health officers - who, under the direction of the Chief Public Health Officer, are required

to exercise particular powers to promote, preserve or protect public health. Local authorised officers are appointed

by Local Councils to exercise particular powers under the Act to promote, preserve or protect public health within the Local Council area.

Authorised officers have certain powers. For example, they can ask questions, inspect articles or substances found

in

a premise or vehicle, remove samples, require papers, books or specifications to be produced, examine, copy

or

take extracts, and so on. They may forcibly enter any premises or vehicles if they have a magistrate’s warrant.

Persons in charge of premises or vehicles must provide such assistance which is reasonably required. Guidelines will be developed to support the application of the principles in the Act in decision making. These guidelines will provide guidance to authorised officers in exercising their powers and responsibilities under the Act.

The Act will allow authorised officers to be accompanied by assistants who will work under direction. This requirement recognises the need for additional support required by authorised officers by permitting assistants since there may be workforce shortages from time to time.

Emergency officers (Division 6 Clause 47)

The Bill includes the provisions recently made by the Parliament providing public health incident and emergency powers that are included in the current PEH Act. This provision allows the Chief Executive to appoint emergency officers as needed.

Specific power to require information (Division 7 Clause 48)

Like the current Act, the Minister, the Chief Public Health Officer or a Local Council can require a person to provide information that is necessary to preserve or protect public health and carry out responsibilities under the Act.

A person who fails to comply will be guilty of an offence. Certain protections are provided to enable the furnishing of

information.

DRAFT South Australian Public Health Bill 2009

page 15

Explanation of parts, key clauses or sets of clauses

Part 4 - State Public Health Plan

(Clause 49)

Clause 49 is a new provision. It requires the Minister to prepare and maintain a plan which is called the State Public Health Plan. The plan has to set out the principles and policies for achieving the objects of the Act and for implementing its principles throughout the State.

A comprehensive assessment of the state of public health and any existing or potential public health risks and

strategies for addressing, eliminating or reducing them must be outlined in the State Public Health Plan. The Plan will

identify opportunities and outline strategies for promoting public health. It will also include information about issues

in regional public health plans or any other policy or plan the Minister considers is appropriate.

The plan must be reviewed at least once every four years. The Minister will be required to consult with the South Australian Public Health Council, the Local Government Association and to give notice to the public when preparing amendments to the plan.

The Minister will be able to make certain changes without consultation for the purpose of ensuring consistency with other polices or ensuring updated or factual information is provided. The Plan must be published and be available for inspection.

The State Public Health Plan must be considered in the development of regional public health plans which are described below. This Act will therefore establish a scheme which ensures there is planning for public health at both State and regional levels with the State plan informing regional planning. This planning will enable public health authorities to work more effectively together to protect, promote and advance the health of the public.

Part 5 - Regional Public Health Plans

(Clauses 50-51)

The Act provides for a Local Council or group of Local Councils to produce a regional public health plan and provide reports every two years on progress that has been made in implementing the plan. If they wish, Local Councils will be able to undertake this planning under the same processes established for developing strategic management plans as required under section 122 of the Local Government Act 1999. Local Councils, if they wish to, can also incorporate the regional public health plan into their strategic management plans. This will ensure that councils need not duplicate planning efforts and that public health matters are effectively considered and integrated into other strategic planning processes in their area.

The Minister will provide guidance concerning the development of regional public health plans. Regional public health plans will have regard to the State Public Health Plan.

A number of matters must be included or addressed in these plans, for example:

> assessing the state of public health in a region

> identifying existing and potential public health risks and developing strategies to address, eliminate or reduce such risks

> identifying opportunities and outlining strategies for promoting public health

> addressing public health issues specified by the Minister following consultation with the SAPHC and the LGA

> providing information about the state of public health and other considerations relating to public health

> including information about issues identified in any plan, policy or strategy specified by the Minister or the SAPHC.

Local Councils will be required to consult on their plans with the public, the Chief Public Health Officer and other relevant bodies.

The Bill introduces the concept of a public health partner authority which may work with Local Councils to implement their public health plans. This provision allows Local Councils to work in partnerships with other community organisations to protect and promote public health. A public health partner authority will be an entity established as such by regulations under the Act. A public health partner authority could be a school or a hospital or an organisation involved in health promotion or other entity.

Councils can allow a public health partner authority to take responsibility for a particular aspect of a regional public health plan if the public health partner authority agrees to do so. The provisions ensure that there is proper process for ensuring that entities formally agree to be public health partner authorities since they take on certain obligations and may have specific responsibilities under both State and regional public health plans.

page 16

DRAFT South Australian Public Health Bill 2009

Explanation of parts, key clauses or sets of clauses

Part 6 - General Duty

(Clause 52)

The Bill establishes a general duty to prevent or minimise harm to public health. Clause 52 requires that a person must take reasonable steps to prevent or minimise any harm to public health that might arise out of anything they do

or do not do. A determination of what is reasonable will be guided by the objects of the Act and a number of other

provisions including:

> the potential impact of the failure to comply with the duty

> any environmental, social, economic or practical implications and

> any degrees of risk involved

> the nature, extent and duration of any harm

> compliance with any code of practice under Part 8, etc.

Implicit within the general duty will be an assessment of the scale or potential scale of harm to public health.

A person will not be in breach if he or she is acting in accordance with accepted practices or a policy or code of

practice published by the Minister. A person who breaches this section will not be liable to any civil or criminal action

on account of the breach alone. However, if a person breaches the general duty, compliance is required if a notice is served under Part 12.

Part 7 – General Public Health Offences

(Clauses 53-56)

Clause 53 establishes offences under the Act. A person who causes either a material or serious risk to public health intentionally or recklessly and with the knowledge that harm to public health will result will be guilty of an offence. There are two levels of risk – material and serious for which interpretations are provided. This clause provides for three levels of offences and penalties based on the knowledge and intentions of the person who causes a material or serious risk to health.

There is a defence of due diligence (clause 55), that is, that a person can prove all reasonable precautions were taken and due diligence was exercised to prevent the commission of an offence. This section also outlines the steps that need to be taken to prove that an attempt was made to prevent the commission of an offence.

If a matter under this section proceeds to court, then the court can make an alternative finding to the one for which the person was charged, if it thinks that the defendant is guilty of an offence.

DRAFT South Australian Public Health Bill 2009

page 17

Explanation of parts, key clauses or sets of clauses

Part 8 – Prevention of Non-communicable Disease

(Clauses 57-58)

This part of the proposed Act is new. It will allow certain diseases or medical conditions thought to be of significance to public health to be declared a non-communicable condition. This declaration will allow a code of practice to be developed that will assist to prevent or reduce the incidence of a non-communicable disease. The code can apply to an industry or sector, a part of the community or an activity, undertaking or circumstance.

For the purposes of public health, a code of practice can set out:

> How certain goods or services are advertised or promoted including the provision of certain information to consumers, etc

> How certain goods or services are manufactured, distributed or sold. This can include composition, contents, etc

> How buildings, infrastructure and other works are designed or constructed

> How the public are able to access specified goods, substances or services.

The Minister has to ensure there is consultation with relevant parties to the code before issuing or amending a code. The Minister is also required to publish a report on the performance of an industry, sector, or person in relation to a code.

It should be noted however that codes under this section are not intended for the purposes of regulating individual lifestyle choices or clinical practice.

Part 9 – Notifiable conditions and micro-organisms

(Division 1 Clauses 59-62 and Division 2 Clauses 63-64)

Declaration of notifiable conditions and notifiable micro-organisms (Clauses 59 and 63)

This part continues the provisions in the current Act for notifiable conditions but adds micro-organisms. Certain diseases or medical conditions can be declared by regulation to be a notifiable condition. If needed urgently in the interests of public health, the Minister can declare a notifiable condition in the Gazette but this declaration will expire after 6 months unless another declaration is made by regulation, or the Minister makes a further declaration by Gazetted notice.

Notification (Clause 60)

Certain persons of a prescribed class, medical practitioners or pathology services are required to notify the Chief Public Health Officer if it is suspected that someone has or has died from a notifiable condition, within 3 days of forming a suspicion. A notification does not need to be made if it is known that someone else has made a report.

A

failure to do so however will attract a maximum penalty of $10,000. If a report of this kind relates to a person

in

a Local Council area, the report must be immediately made to the Local Council by the Chief Public Health Officer.

The Chief Public Health Officer can ask for additional information, from time to time, about the affected person from the notifier or any other person who may be able to provide additional information. Compliance is required with this request unless there is a reasonable excuse. There is a penalty for non-compliance. Persons who provide this information will not be liable to any civil liability if information is provided honestly and without malice nor will they have been held to have breached any law or professional ethical code. Information provided in this way will be protected to preserve the privacy of individuals. Accordingly, reports or documents made under this section will not be accessed through the Freedom of Information Act 1991.

On a monthly basis, the Department of Health will be required to provide each Local Council with a report on the occurrence or incidence of notifiable conditions in its area and any problems arising from or caused by these conditions. Local Councils will have to be informed of any notifiable condition that may pose a threat to public health. Once informed, Local Councils have to take action to prevent the spread of the disease.

Action to prevent the spread of infection (Clause 62)

The Bill gives the Chief Public Health Officer or an authorised officer the power to give any directions or to take any actions needed to avert any risk if there is a danger to public health from the possible spread of infection. Among other things, the Chief Public Health Officer or an authorised officer can order the cleaning or disinfecting of premises, vehicles or articles or the destruction of an article. They can seize vehicles or other things, impose quarantine or restrict movement into or out of an area. These powers are also contained within the current Act.

page 18

DRAFT South Australian Public Health Bill 2009

Explanation of parts, key clauses or sets of clauses

A person who is given a direction must comply with the direction. Unless there is a reasonable excuse, a penalty

applies if there is a failure to comply with a direction. The Bill also allows the Chief Public Health Officer or authorised officer to take action if a person does not take action as directed. The Chief Public Health Officer or an authorised officer can enter premises or a vehicle at any reasonable time or break into premises or a vehicle if they have a magistrate’s warrant. The Bill also permits the Department or a Local Council to recover any costs and expenses incurred as a result of this action from the person who failed to take action. These powers mirror provisions in the current Act.

Notifiable micro-organisms (Clauses 63-64)

A micro-organism can be declared to be a notifiable micro-organism by regulation. In the interests of public health in

urgent circumstances, the Minister can declare a micro-organism a notifiable micro-organism by notice in the Gazette.

The Bill requires a laboratory service or a person of a class described by the regulations to provide a report to the Chief Public Health Officer if a notifiable micro-organism is identified in food or food samples. Proprietors of any food business or food vending machines in South Australia are also required to report notifiable micro-organisms found in food samples by a laboratory (including a laboratory outside the State) to the Chief Public Health Officer. The Chief Public Health Officer can request additional information from the person providing the report or from any other relevant person.

Part 10 – Controlled Notifiable Conditions

(Division 1 Clauses 65-68, Division 2 Clauses 69-77, Division 3 Clauses 78-80)

Principles (Clause 65)

The principles set out in clause 14 of the Bill apply to this part since a person with a controlled notifiable disease or medical condition may be subject to significant directions.

Declaration of a controlled notifiable disease (Clause 66)

A disease or medical condition can be declared to be a controlled notifiable disease or medical condition by

regulation. In the interests of public health in urgent circumstances, the Minister can declare a disease or medical condition a controlled notifiable disease or medical condition by notice in the Gazette. This notice can be extended by further notice or by declaration by regulation.

Chief Public Health Officer to be able to act in other serious cases (clause 67)

Where a person has a serious disease which presents a serious risk to public health but it is not a controlled notifiable disease or medical condition, clause 67 permits the Chief Public Health Officer to act as if it is a controlled notifiable disease or medical condition in relation to the relevant person. This clause ensures that there is flexibility to act in relation to an unusual circumstance where a person has a serious disease but it does not warrant a declaration as a controlled notifiable disease.

Children (Clause 68)

The Bill clarifies that the parent or guardian of a child who may have a serious disease or controlled notifiable disease will be required to ensure compliance with a requirement.

Power to require a person to undergo an examination or test (Clause 69)

The Bill recognises that there may be extraordinary circumstances in which the power to require a person to undergo an examination or test needs to be exercised so that another person can be provided with information about the likelihood of transmission of a controlled notifiable disease such as HIV.

DRAFT South Australian Public Health Bill 2009

page 19

Explanation of parts, key clauses or sets of clauses

The Chief Public Health Officer can place a requirement on a person to undergo an examination or test where:

>

A

person who has a controlled notifiable condition is considered a risk to health through the transmission of the

disease condition or

>

An incident has arisen in which a person may have been exposed or could have contracted a controlled notifiable disease or

>

An incident has occurred where the disease may have been transmitted to a caregiver or custodian and

>

A

rapid diagnosis or clinical management and treatment if appropriate is needed for any person involved in an

incident or connected with a circumstance.

The Chief Public Health Officer can only impose a requirement under this section if the person has been given a reasonable opportunity to undertake an examination or test but has failed to do so and imposing the requirement is necessary for obtaining a rapid diagnosis or for clinical management and treatment if needed. This clause provides important protection to individuals who may be at risk of a controlled notifiable disease being transmitted to them since it provides greater certainty and facilitates faster access to treatment.

The Chief Public Health Officer may arrange a clinical examination or tests for a person who is unconscious if considered necessary.

A person will also be entitled to compensation for costs and expenses directly incurred in attending for an

examination and any test.

Power to require counselling (Clause 70)

The Bill will provide the power to require counselling, education or other activities that help a person understand the implications of a controlled notifiable disease if a person has failed to participate in relevant counselling activity despite being given a reasonable opportunity to do so.

Power to give directions (Clause 71)

This section will provide the Chief Public Health Officer the power to give directions to a person who it is reasonably

believed has or has been exposed to a controlled notifiable disease and it is necessary in the interests of public health

to give such directions. Similar direction making powers are also present in the current Act.

The directions that may be made to a person include:

> To reside at a certain place

> To remain in isolation

> To not carry out certain activities such as going to work or using public transport or going to a public event like

a concert or sporting event

> To not visit specified places

> To not associate with specified persons or classes of persons

> To take specific action to prevent or reduce any health risk to other people

> To attend specified meetings and provide reasonably required information

> To be under the supervision of a person nominated by the Chief Public Health Officer

> To submit to examination or treatment at a particular place.

Whilst a person to whom a direction is given can refuse examination or treatment due to a conscientious objection,

a parent or guardian cannot do so for a child if it is in the best interests of the child and necessary in the interests of public health.

page 20

DRAFT South Australian Public Health Bill 2009

Explanation of parts, key clauses or sets of clauses

Powers to require detention (Clause 72)

The Bill gives the Chief Public Health Officer the power to detain a person where it is believed on reasonable grounds

that:

> a person has or has been exposed to a controlled notifiable condition

> the person has contravened or failed to comply with directions

> the person is likely to present a risk to public health and

> action is justified.

An order for detention cannot exceed 30 days for the initial period but can be renewed from time to time for periods not exceeding 90 days. A detained person has the right to make requests for communication.

General provisions relating to orders, requirements and directions - duty to comply – warrants - review of orders (Clauses 73-76)

This section sets out how orders, requirements or directions may be given or imposed on a person and how such orders must be made. For example, an order, requirement or direction can be imposed on a person in any combination on one or more occasions. The Chief Public Health Officer can, by notice, vary or rescind an order, requirement or direction. The order or notice to a person has to include information about:

> the grounds for the order being made and

> a person’s rights under the Act including the right to a review and

> any other information considered relevant.

There is a duty to comply with an order, requirement or direction and a failure to do so attracts a maximum penalty of $20,000.

A warrant can be issued for the apprehension of a person who fails to comply with an order, direction or

requirement. A warrant can be issued requiring a person to be subject to any examination or tests or other action or to be brought before a magistrate. A magistrate can take such action appropriate to achieve compliance with a

relevant order, requirement or direction. The magistrate can issue any orders as thought fit or issue a warrant for the detention of the person until willing to comply with an order, requirement or direction. The magistrate can also issue

a warrant to hold the person in a place of quarantine or isolation for a prescribed period or subject to periodic review by the magistrate or otherwise determined

A right of appeal exists to the Supreme Court against a magistrate’s decisions.

Application can be made for a review of an order, requirement or direction to the District Court. More than one application can be made but, where there is a second or subsequent application made to the same order, the District Court must determine that there has been a significant change in the circumstances of the case in order to proceed. The Court can confirm, vary or revoke any order, requirement or direction or substitute others among other things.

Advisory panels (Clause 77)

The Bill provides for a case management and coordination advisory panel to advise the Chief Public Health Officer on the management of a person or group of persons subject to an order, requirement or direction.

Tests on deceased persons (Clauses 78)

The Bill permits the authorisation of a test or procedure on a deceased person if there are reasonable grounds to believe the person had a controlled notifiable disease. Certain conditions apply in exercising this power and for lawful entry of premises and to conduct a search for a body.

Interstate orders (Clause 79)

The Bill permits recognition of corresponding laws in other States or Territories where an order, requirement or direction applying to a person who moves to South Australia can continue as if it were made in this State. These orders can be varied in South Australia. If an order made interstate expires or is revoked, then it will cease to have effect in this State. However, if needed, the Bill allows a new order to be made.

Protection of information (Clause 80)

The Bill prohibits access under the Freedom of Information Act 1991 to information held about a person under this Part.

DRAFT South Australian Public Health Bill 2009

page 21

Explanation of parts, key clauses or sets of clauses

Part 11 – Management of Significant Emergencies

(Clauses 81-86)

This section of the Bill deals with the powers to declare and respond to public health incidents and emergencies.

It incorporates the provisions that were recently passed by the Parliament and assented to on 25 June 2009. This

section permits the Chief Executive with the approval of the Minister to declare a public health incident or public health emergency and outlines how declarations are to be made or revoked. It provides the powers and functions of the Chief Executive on the declaration of a public health incident or emergency, that is, to take any necessary action to implement the public health emergency management plan and cause such response and recovery operations that might be needed. Certain provisions of the Emergency Management Act 2004 apply under this section of the Act.

Part 12 – Notices and Emergency Situations

(Division 1 Clause 1 and Division 2 Clauses 88-90 and Division 3 Clauses 91-92)

This section concerns the manner in which notices must be issued to secure compliance with a requirement under the Act including the general duty under Part 6 or a requirement under a regulation or code or to avert or minimise the risk to public health.

Before issuing a notice for a breach of the duty, the relevant authority (the Chief Public Health Officer or a Local Council) has to take into account the number of people affected, the degree of harm to public health and any steps that have been taken or will be taken to avoid or address any impact. A notice issued can require:

> Discontinuing or not starting a specified activity until further notice

> Conducting a specified activity at certain times or under specified conditions

> Taking specified action in a specified way in specified circumstances or periods

> Taking action to prevent or reduce a specified risk to public health or to control a specified activity

> Complying with a code or a standard

> Undertaking specified tests or monitoring

> Furnishing specified reports or results

> Preparing and implementing a plan of action to secure compliance with any requirement to prevent or reduce a risk to public health.

Emergency notices can be issued by authorised officers imposing any of the type of above requirements if it is thought that urgent action is needed. Other requirements for the issuing of emergency notices are given.

A protocol can be developed to give guidance on which relevant authority should act in various classes of cases which

the Minister can adopt after consultation with the Chief Public Health Officer and the LGA.

Action can be taken if there is non-compliance with a notice.

Action in emergency situations (Clause 90)

If an authorised officer thinks a situation is creating or is likely to create a risk to public health and requires immediate action, then after giving such notice (if any) that can be given in the circumstances, the officer can take appropriate action to prevent or reduce the risk. An authorised officer can take such action as needed, whether or not notice is given, to enter premises or seize, retain, or move or destroy a substance or thing. Reasonable costs and expenses incurred by authorised officers can be recoverable by the Crown or a Local C ouncil.

page 22

DRAFT South Australian Public Health Bill 2009

Explanation of parts, key clauses or sets of clauses

Reviews – notices relating to general duty (Clause 91)

This section applies if a person has been served a notice under this Part to secure compliance with the general duty under Part 6. A person issued a notice can apply for a review by the Public Health Review Panel (the Review Panel). A Review Panel, on hearing any proceedings can:

> confirm, vary or revoke any requirement or discharge the notice

> substitute any requirements that could have been made in the first instance

> remit the matter to the relevant authority for further consideration

> dismiss the matter

> make an order for costs

> make other orders or directions or conditions as appropriate.

A person issued a notice under this Part can appeal to the District Court against the notice or the outcome of review

proceedings.

Part 13 – Miscellaneous

(Clauses 93-102)

This part of the Bill includes provisions concerning the following matters:

> Delegation by Chief Executive (Clause 93)

> Confidentiality (Clause 94)

> Provision of certain information (Clause 95)

> Service of notices or other documents (Clause 96)

> Immunity (Clause 97)

> False or misleading information (Clause 98)

> Offences (Clause 99)

> Offences by bodies corporate (Clause 100)

> Continuing offences (Clause 101)

> Regulations (Clause 102).

Confidentiality (Clause 94)

Specific provisions dealing with confidentiality permit legal disclosure of medical or other personal information in the following circumstances:

> the course of official duties or for other purposes associated with the administration of the Act

> as required by law or a court or a tribunal constituted by law

> at the request of the person or a guardian or medical agent of the person

> to a relative, carer or friend if reasonably required for treatment, care and recovery and such disclosure would not be contrary to a person’s interests

> subject to any regulations:

> disclosing to a health or other service provider if reasonably required for treatment, care or recovery unless otherwise directed by the person

> entering information into electronic records system established for the purpose of recording or sharing information between persons or bodies involved in the provision of health services

> as reasonably required for management of a hospital or ambulance service.

> To provide treatment or prevent the transmission of a controlled notifiable condition

> To prevent or lessen a serious threat to the life, health or safety of a person or a serious threat to public health

> For medical, research or statistical purposes.

A breach of this section attracts a penalty.

DRAFT South Australian Public Health Bill 2009

page 23

Explanation of parts, key clauses or sets of clauses

Provision of certain information (Clause 95)

A person may be authorised to access confidential information for the purpose of monitoring public health, investigating public health problems or assessing and improving the quality of public health in South Australia without breaching any law or professional ethics.

Disclosures of information can only be made in the course of official duties or with the consent of the person to whom the information relates or it is required by a court or tribunal or is authorised under the regulations. A breach attracts a penalty.

Regulations (Clause 102)

The Governor can make such regulations as contemplated by the Act or are necessary for the purposes of the Act including codes or standards. The Bill provides for the development of regulations and policies to assist in the administration of the new Act.

page 24

DRAFT South Australian Public Health Bill 2009

For more information

Policy and Legislation Department of Health Telephone: 8226 6717 Email: Health.PublicHealthBill@health.sa.gov.au

www.health.sa.gov/pehs/publichealthbill2009.htm

Non-English speaking: for information in languages other than English, call the interpreting and Translating Centre and ask them to call The Department of Health. This service is available at no cost to you, contact (08) 8226 1990.

© Department of Health. All rights reserved. ISBN: 978-0-9750285-3-7. Printed August 2009. DH-IM9110.2

(08) 8226 1990. © Department of Health. All rights reserved. ISBN: 978-0-9750285-3-7. Printed August 2009. DH-IM9110.2
(08) 8226 1990. © Department of Health. All rights reserved. ISBN: 978-0-9750285-3-7. Printed August 2009. DH-IM9110.2
(08) 8226 1990. © Department of Health. All rights reserved. ISBN: 978-0-9750285-3-7. Printed August 2009. DH-IM9110.2
(08) 8226 1990. © Department of Health. All rights reserved. ISBN: 978-0-9750285-3-7. Printed August 2009. DH-IM9110.2
(08) 8226 1990. © Department of Health. All rights reserved. ISBN: 978-0-9750285-3-7. Printed August 2009. DH-IM9110.2
(08) 8226 1990. © Department of Health. All rights reserved. ISBN: 978-0-9750285-3-7. Printed August 2009. DH-IM9110.2