ANSWERS TO FREQUENTLY ASKED QUESTIONS ON THE PUBLIC HEALTH ACT 2005

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ANSWERS TO FREQUENTLY ASKED QUESTIONS

ON THE PUBLIC HEALTH ACT 2005

Introduction

This document has been prepared to assist regulators of the Public Health Act 2005 and Public Health Regulation

2005 with developing an understanding of some of the requirements under the Act and Regulation.

It is intended that you read this document in conjunction with current versions of the Public Health Act and Public Health Regulation available from www.legislation.qld.gov.au . The answers include wherever possible the relevant sections of the legislation for easy reference.

References

Public Health Act 2005 and Public Health Regulation 2005

Commonwealth and State legislation is available via the Office of the Queensland Parliamentary Counsel website at www.legislation.qld.gov.au/OQPChome.htm

Further Information

Should you be unable to find the answers to your question in this document please refer to the support material provided in the Public Health Act 2005 Resource Kit. If you require any further assistance please refer to the

Public Health Act 2005 website www.health.qld.gov.au, or contact the Queensland Health Environmental Health

Unit on (07) 323 40938.

New and updated information is available to:

ƒ Local governments at www.health.qld.gov.au/eholocalgov ƒ Queensland Health at http//qheps.health.qld.gov.au/PHS/ehopom/.

Table of Contents

Commencement of the Public Health Act and Regulations 2

Act binding the Crown 3

Public health risks role of State and local government 3 Effect of Public Health Act on local laws 4 Enforcement tools for public health risks 4 Consent to entry under a Prevention and Control Program 4 Enforcement of lead provisions 4

Contact Tracing 4

Local Government and Infection Control Management Programs 5 Private Hospitals and Infection Control Management Programs 5 Appointment of Authorised Persons 5 Cost Recovery for Warrant, Public Health Order or Enforcement Orders 5 Cost recovery by local government via rates 6

Review and Appeals 6

Assistance by Police 7

Definition of a Thing 7

Appointment of Medical officers of Health 8 Clean up of Public Health Risks 8

Earthen Dams and Tanks 8

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QUESTION ANSWER

s2 When will the Act and

the Regulation commence?

The Act and the Public Health Regulation 2005 commenced in a staged approach from 1 December 2005 Provisions dealing with public health risks and childhood contagious conditions will commence 18 June 2007

s3 Can a local governme nt

prosecute the Queensland Governme nt for a public health risk, ie. does the Act bind the Crown?

The Act binds all persons, including the State. However, the State is not bound for some enforcement provisions relating to local government public health risks, ie. public health orders, power to enter place to ascertain if there is a public health risk, application for warrant and issue of warrant. It is important to note that nothing in this Act makes the Commonwealth or the State liable to be prosecuted for an offence. (Refer to section 3 of the Act).

The requirements for public health risks in the Public Health

Regulation 2005 do not bind the State. This means a local

government cannot prosecute the Queensland Government. (Refer to section 61 of the Act).

s3 Can local governme nt

investigate local governme nt public health risks created by the State?

Often the best way to resolve this type of issue is for the local government to contact their local Queensland Health Population Health Unit and ask them to follow it up, or a joint investigation might be conducted.

If a local government wants to investigate there are restrictions in the Act that should be noted. Section 3(2)(b) clarifies that the State is not bound by section 386 (Power to enter place to ascertain if there is a public health risk). However, the Act provides other mechanisms for entry under s385.

While the local government may be successful in investigating a local government public health risk created by the State they do not have the power to take enforcement action. Nothing in this Act makes the Commonwealth or the State liable to be prosecuted for an offence. Public health risk requirements of Public Health Regulation

Does a local governme nt need to comply with the require ments of occupiers and owners with respect to public health risks such as mosquito breeding?

Local governments as occupiers and owners of land are required to comply with the requirements in the Public Health Regulation for mosquitos (Division 2), and rats and mice (Division 3). The requirements for asbestos in Division 1 of the Public Health Regulation only apply to non-workplace areas. If a local government failed to comply, the State could consider action under sections 15, 16 and 17 of the Public Health Act. s14,15 Can the State

investigate local governme nt public health risks?

Section 14 provides an opportunity for State and local governments to administer the Act in partnership. Under an agreement the State may investigate a local government public health risk. Section 15 also provides an avenue for State government to investigate local government public health risks when action is required by the State because local government has not administered and enforced the Act.

Refer to Guidance Note: Public Health Act- When the State and

local governments administer the Act in Partnership

S19 What effect does the Act have on local laws?

Under section 19 of the Public Health Act, local governments may make local laws about public health risks provided they are

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not inconsistent with the Public Health Regulation 2005 or any other regulation made under section 61 of the Act.

However, it should be noted that local laws about public health risks are not invalid by reason of inconsistency with the Public Health Act, as may otherwise arise due to section 31 of the Local

Government Act 1993. This is to provide certainty that local laws

(eg. about waste collection or overgrown allotments) will remain in effect despite the enactment of the ‘public health risk’ provisions.

Local governments should review their local laws to determine whether there are any inconsistencies with the asbestos, vermin and mosquito provisions of the Public Health Regulation 2005. Local governments may also wish to consider whether they need to develop any new local laws to cover those requirements under the Health Act 1937 and Health Regulation 1996 which will/have been repealed and not included in the new Act and Regulation, such as permits for the keeping of vermin.

S20 How does the Local

Government Act 1993

apply to the Public Health Act 2005?

The Local Government Act 1993 does not apply to the

administration and enforcement of the Public Health Act by local government. That is the appointment of authorised persons and the powers authorised persons can use, including entry powers is contained the Public Health Act (see section 20). However, the authority for local governments to delegate decision making powers in Public Health Act comes under the Local Government Act.

s21,24, 394 & 405

What enforce ment tools are available for public health risks?

Enforcement tools include s21 public health orders, s24 enforcement orders and s394 application for a warrant and s405 power to remove or reduce a public health risk under a warrant. ƒ Guideline - Assessing Public Health Risks Enforcement

Guideline

ƒ Procedure - Public Health orders ƒ Procedure – Enforcement Orders ƒ Procedure - Warrant for a place ƒ Procedure - Seizure

s41 Does an authorised

person require an occupier’s consent to enter a place for a prevention and control program?

An authorised person has the power to enter place with the exception of a dwelling without the occupier’s consent for a prevention and control program. Note: standard entry practices apply.

See Procedure: Entry to a Place

s58 What is the definition of accessible to children in relation to lead

accessible to children?

No definition of accessible to children has been provided in the Public Health Act. This should be considered in its ordinary meaning on a case by case basis taking into account the health risks and is not intended to be applied retrospectively. s90 Can I do contact tracing

without being appointed under section 90?

Any person, with the cooperation of the individual who has the notifiable condition, can undertake contact tracing. This is often called contact tracing with consent. If the person does not give their consent or freely provide the information requested, only a duly appointed contact tracing officer can legally require persons to provide the contact information. Contact tracing officers are appointed under Section 90 of the Public Health Act 2005 by the chief executive of Queensland Health.

A person employed by a local government may be appointed as a contact tracing officer for specified notifiable conditions with the

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agreement of the chief executive officer of the local government that employs the person. Any such appointment would be limited to the local government’s area and any other local government area stated in the appointment.

s148,151 Are local governme nt immunisation services required to have infection control management plans (ICMPs)?

Local government immunisation services may be exempt from the obligation of developing an ICMP under the Public Health Act as their policies and procedures may be sufficiently rigorous under the requirements of the Health (Drug and Poisons)

Regulation 1996. A caveat on local government immunisation

services exempted from the obligation for an ICMP will be evidence of policies & procedures for the Management of Occupational Exposures & Safe Disposal of Contaminated Sharps. It is anticipated that an amendment regulation will formalise this exemption.

For more information see www.health.qld.gov.au/chrisp/icmp-pha/ or telephone David Gunderson on (07) 3234 1229

s150 Are private hospitals required to have infection control management plans (ICMPs)?

No. Section 150 exempts private health facilities from being required to comply with chapter 4. This is because these facilities already have similar provisions under their legislation and their accreditation procedures.

s377 Can local governme nts appoint authorised persons?

Yes. The Chief Executive Officer of a local government may appoint an authorised person. Note: All other roles under the Act can only be appointed by the chief executive of Queensland Health.

s31, 32, s406 Can a Local Governme nt or Queensland Health recover cost?

Provisions of the Public Health Act 2005 (the Act) that allow Local Government to recover costs include section 31 (Costs under enforcement order recoverable as a debt) and 406 (Costs of steps recoverable as a debt).

Section 31 and 32 of the Act provide for an issuing authority (the Local Government or the Chief Executive of Queensland Health) to recover an amount payable under an enforcement order as a debt due.

Similar to the cost recovery mechanisms under the Local

Government Act 1993, section 31 specifies that an amount payable to a local governme nt bears interest as if it were an overdue rate and section 32 allows a Local Government to

request the registrar of titles to register a charge over land for an amount payable under an enforcement order.

Section 406 provides that the Local Government or the Chief Executive of Queensland Health (the ‘issuing authority’) may recover the reasonable costs and expenses incurred in exercising the powers under section 388 (Power to enter place to take steps if public health order not complied with) or section 405 (Power to reduce public health risk under a warrant) as a debt payable to the issuing authority. If the issuing authority is a Local

Government, the amount is recoverable, and bears interest, as

if it were an overdue rate.

Sections such as 31 and 406 are only relevant if the person who owes the debt vs a Local Government is a land owner. Section 443 enables a court to order payment of costs of investigation of

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QUESTION ANSWER

an offence against the Act if the person is convicted of an offence. Non-payment would be dealt with through the court system not as debt vs the person’s rates.

s425 Section 425 refers to obstructing authorised persons. What other legislation covers obstructing or resisting authorised persons?

In addition to the provisions of the Act, section 199 of the

Criminal Code Act 1899 (s199). states that it is an offence for any

person who in any manner obstructs or resists a public officer doing their duty and is liable to imprisonment for two years. A public officer includes State and local government officers.

S435 Does a local governme nt or population health unit have to submit all samples to a State analyst?

Section 435 of the Public Health Act requires an authorised person to submit to a ‘State analyst’ any ‘thing’ taken for analysis under the Act. After receiving the thing for analysis, the State analyst must either analyse it or give it to an approved laboratory for analysis.

This means that if the results of an analysis of a sample may be used as evidence in court, then the sample or thing should be sent to a State analyst for analysis. If the sample will not be used as evidence in court, such as samples taken for monitoring only, then they may be submitted to any analyst.

As of March 2007, the only State analysts appointed under the Act work for Queensland Health Pathology and Scientific Services, 39 Kessels Road, Coopers Plains Queensland 4108. Postal Address: PO Box 594, Archerfield, Queensland 4108. Phone: (07) 3000 9900

Requests for Queensland Health to approve a laboratory to analyse things taken under the Act should be directed to the Executive Director, Queensland Health Pathology and Scientific Services, PO Box 594, Archerfield, Queensland 4108

s451 Are there any

provisions in the Act for a right of review by an offender or any appeal rights?

An owner of a thing forfeited to a relevant entity under section 413(1) who is dissatisfied with the decision resulting in the forfeiture may appeal against the decision (s450). Other sections of the Act of relevance in relation to appeals are:

ƒ s.142 in appealing against a decision for a controlled notifiable condition

ƒ s182 in relation to the closure of a school and avenues to appeal to the magistrates Court.

ƒ S183 deals with appeals on a question of law to the District Court are covered under s183

ƒ s358 and s362 deal with issues in relation to appeals for detention orders and extensions

ƒ s372 addresses matters in relation to appeals regarding compensation for those who suffer loss or damage because of exercise or purported exercise under part 6 or 7 of the Act (emergency and detention issues).

ƒ s33 to 35 deals with where a public health order has been issued, which are not exactly appeal rights but provide the ability to recover costs from a third party if the recipient of a public health order has complied with the order but considers a third party is responsible for the public health risk and they want that person to contribute to the costs that were incurred in complying with the order.

Complaints about the decisions or actions of a Queensland public agency (eg. Queensland Health) or a local government should in the first instance be made to the relevant organisation with a view

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to genuinely resolving the issue. Most should have complaint handling procedures. It is recommended that complaint be made in writing. If this does not resolve the issue, then a complaint may be made to the Ombudsman. More information on the Ombudsman may be found on

http://www.ombudsman.qld.gov.au/.

s457 Are police required to give me assistance as a public official?

Part 3, Division 2, section 16 of the Police Powers and

Responsibilities Act 2000 states “that if a public official asks, a

police officer may help the public official to perform the public official’s functions under the authorising law”.

Definition of public official: a person who is appointed or

authorised under an authorising law to perform inspection, investigation or other enforcement functions under the authorising law for the entity

(a) for a government entity or

(b) for an entity other than a government entity or a local government public official or

(c) for chapter 1, part 3, division 2356 an authorised person/ public official under the Local Government Act 1993; or (d) otherwise a person who is declared by another Act to be a public official for this Act.

Under the s457 of the Public Health Act 2005 the following persons are public officials: chief executive, authorised person, contact tracing officer, emergency officer, person in charge of a public sector health service and a designated medical officer.

Schedule 2 Dictionary

What is the definition of a ‘thing’ mentioned in the Act?

A ‘thing’ is not defined in the Act or the Acts Interpretation Act

1954. In the absence of a legal definition refer to the Macquarie

Dictionary.

A’ thing’: in the Macquarie Dictionary refers to” material object

without life or consciousness, inanimate object, some entity, object or creature, something that cannot be specifically designed or precisely described”.

Does the Act provide for the appointme nt of me dical officers of health (MoH)?

The Public Health Act 2005 does not include any requirements for the appointment of medical officers of health. Section 22(1) of the Health Act 1937 states “A local government may … appoint a medical practitioner as medical officer of health…” It is intended that Section 22 of the Health Act will be repealed when the public health risk provisions in the Public Health Act commence.

While no longer a legislated requirement, local governments may still wish to consider retaining the services of a medical

practitioner or periodically seeking the advice or assistance of a medical practitioner on certain local government issues. Local governments may also seek advice on public health medical issues from their closest Population Health Unit of Queensland Health.

Does the Act provide for the clean up of a public health risk?

Yes, The actions that may help an authorised person to deal with the clean up of public health risks would be as follows:

• Assess if a public health risk exists • Identify actions necessary

• Issue a public health order where required

• If person fails to comply with a public health order: take steps with consent, obtain enforcement order or warrant • Consider other options including cost recovery

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QUESTION ANSWER

contribute to a satisfactory outcome.) Mosquitos –

Public Health Regulation

Earthen dams are captured by the definition of ‘relevant tank’ in section 2L of the Public Health Regulation. Does the regulation need to be applied to earthen tanks?

Section 2N (Requirement to ensure place is not a breeding ground for mosquitos) may be applied to any accumulation of water including artificial ponds made of earth and dams. The following sections are not to be applied to these types of tanks (ie. dams):

• 2O (Construction, installation and maintenance of a relevant tank)

• 2P (Requirements for a relevant tank) • 2Q (Offence to damage screen or flap valve).

Can you serve a Prescribed

Infringe ment

Notice(PIN) for a body of water that is likely to become a breeding ground for mosquitos

• No, the offence must actually exist eg. a place where mosquito eggs, larvae or pupae are present. Otherwise a Public Health Order is applicable.

• Local government officers can and will need to use their professional knowledge and discretion in deciding the steps to be taken when serving a PIN steps.

• The definition of ‘breeding ground’ for mosquitos means a place where mosquito eggs, larvae or pupae are present.

• It is important to be aware that it now includes not only larvae and pupae being present but also includes when eggs are present.

Disclaimer

The information presented in this list of answers to frequently answered questions is distributed by Queensland Health on behalf of the Queensland Government as an information source only. The information is provided solely on the basis that readers will be responsible for making their own assessment of the matters presented herein and are advised to verify all relevant representations, statements and information. The information does not constitute professional advice and should not be relied upon as such. Formal advice from appropriate advisers should be sought on particular matters.

Queensland Health does not accept liability to any person for the information or advice provide in this document, or incorporated into it by reference or for loss or damages incurred as a result of reliance upon the material contained, in no event shall herein. In no event shall Queensland Health be liable (including liability for negligence) for any damages (including without limitation direct, indirect, punitive, special or consequential) whatsoever arising out of a persons use of, access to or inability to use or access this document, information found in this document is protected by Crown copyright.

This is a collection of various questions and scenarios put to the Public Health Act Implementation Team from Environmental Health Officers during consultation with local government and public health units. While every effort has been made to ensure that the information is correct, you are encouraged to ensure that there have been no legislative changes that would change the answers given. A reference to the relevant section of the Act has been provided where possible to justify the answers given. .If you would like to have a question added please email it to contact Queensland Health’s Public Health Act Implementation Team

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