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Public Health Bill 2005
Public Health Bill 2005
Explanatory Notes
Title of the Bill
Public Health Bill 2005
Objectives of the Bill
The primary objective of the Bill is to protect and promote the health of the
Queensland public by providing the basic safeguards necessary to protect
public health through cooperation between the State Government, local
governments, health care providers and the community.
The Bill is the result of an extensive review of the current public health
provisions in the Health Act 1937. Among other matters, the review
focused on:
· removing regulatory requirements that are outdated or duplicate
requirements in other legislation
· modernising the approach to traditional public health concerns, such
as the means available to deal with "nuisances" that present a public
health risk
· addressing issues that have emerged more recently, such as public
concern about infection control in health facilities and public health
emergencies
· ensuring that public health legislation which affects local government
is consistent with current policy on the relationship between the State
and local government
· ensuring that public health legislation has sufficient regard for
fundamental legislative principles, which among other matters
requires the legislation to achieve an appropriate balance between the
need to protect the health of the public and the need to safeguard the
rights of individuals
· ensuring that public health legislation accords with modern drafting
practices.
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Public Health Bill 2005
Achievement of the Objectives
The Bill will replace the public health provisions in the Health Act 1937
and will establish a framework which:
· provides powers to prevent, control and reduce risks to public health
· provides for the identification of, and mechanisms to prevent or
minimise adverse health impacts from, notifiable conditions
· imposes obligations on persons and particular health care facilities
involved in the provision of declared health services to minimise
infection risks
· provides for action to be taken to minimise the spread of contagious
conditions in schools and child care services
· provides for doctors and registered nurses to notify appropriate
authorities of child abuse and neglect
· enables authorised doctors to hold children, who have been harmed or
are at risk of harm, at a health service facility under specified
circumstances
· provides for the collection and management of health information
necessary for monitoring specific public health issues
· establishes mechanisms for health information held by the department
to be accessed for research
· enables inquiries into serious public health matters
· provides for rapid responses to public health emergencies
· provides for monitoring and enforcing activities to ensure compliance
with the Bill.
Preventing, controlling and reducing risks to public health
The Bill introduces a new term, `public health risk', to deal with particular
types of environmental health risks such as breeding grounds for
mosquitoes, vermin infestations, and hazardous water or waste. State and
local governments will work together to reduce, control or prevent these
risks to public health.
The powers in the Bill provide authority to issue public health orders to
require the recipient of the order to take action to reduce, control or prevent
a public health risk. The Bill also provides complementary powers to
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Public Health Bill 2005
enable authorised persons to inspect and take appropriate action to enforce
compliance with public health orders.
The Bill provides for the establishment of a register for an environmental
health event to monitor and analyse any health effects resulting from the
event and to help in the prevention, minimisation or treatment of the health
effects.
Notifiable conditions
Certain medical conditions are of particular significance to public health,
due to the fact that they are highly contagious, life threatening or an
indicator of an environmental health risk. The aim of the Bill is to protect
persons from these conditions through mechanisms that provide an
appropriate balance between public health and the right of individuals to
liberty and privacy.
In accordance with this object, the Bill allows information about persons
who have, or are suspected of having, a notifiable condition to be provided
to enable monitoring and analysis of incidences of notifiable conditions;
study the efficacy of treatment; increase public awareness; identify
outbreaks to enable steps to minimise public health risks; and help in the
planning of services and strategies to prevent or minimise transmission of
notifiable conditions.
The Bill also enables the chief executive to appoint appropriately qualified
contact tracing officers to assist in the identification and provision of
information to persons who have, or may have, been exposed to a notifiable
condition.
In addition, the Bill will enable action to be taken to manage a person with
a controlled notifiable condition who poses a risk to the health of the public
because of his/her condition or behaviour. For example, if necessary, the
chief executive may detain a person at a public sector health service for a
maximum period of 24 hours or apply to a magistrate for an order that
provides for the examination of a person to ascertain whether the person
has a controlled notifiable condition.
Minimising infection risks in health service facilities
The Bill imposes a general obligation on persons involved in the provision
of a declared health service to take reasonable precautions and care to
minimise the risk of infection to other persons. This obligation will be
imposed on owners of a health care facility, those persons responsible for
the operation of a health care facility, individual health care providers and
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Public Health Bill 2005
support staff (eg staff who provide laundry and other domestic services at a
health care facility).
The Bill also requires certain health care facilities to develop and
implement an infection control management plan (ICMP). An ICMP must
identify the potential infection risks, detail the measures to be taken to
prevent or minimise the risks, provide how the implementation of the
ICMP is to be monitored and reviewed, and provide for staff training about
the ICMP.
Child health
There are two aspects to child health dealt with in the Bill - powers in
relation to contagious conditions and powers in relation to child abuse and
neglect.
The Bill enables the chief executive (health) and persons in charge of
schools and child care services to issue directions about the attendance of a
child at school or child care, if the child is suspected of having a contagious
condition. Similar provisions also apply in relation to children at risk of
contracting a contagious condition because they have not been vaccinated
for the condition. The Bill also enables the chief executive (health) to issue
directions, or the Minister to order the temporary closure of a school or
child care service, to minimise an outbreak of a contagious condition.
The Bill carries forward changes recommended in the Crime and
Misconduct Commission's Report on the abuse of children in foster care by
providing that all registered nurses and doctors must report reasonable
suspicions of harm to a child to the chief executive of child safety. The
provisions establish the framework for providing the notifications.
In addition, appropriately qualified doctors (designated medical officers)
are empowered under the Bill to order that a child who has been (or is at
risk of being) harmed and is likely to leave (or be taken from) the facility
and be harmed if immediate action is not taken, be held at a health service
facility for up to four days for examination and treatment.
Health information management
The Bill continues to provide for the collection of data for the
establishment and maintenance of the Perinatal Statistics Collection, the
Queensland Cancer Register and the Pap Smear Register.
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Public Health Bill 2005
Research
The Bill establishes mechanisms for providing health information held by
the department for approved research. The Bill enables researchers to
apply to the chief executive of health for access to health information held
by the department. The provisions prescribe the application criteria and
processes and provide confidentiality requirements that must be adhered to
by successful applicants. The chief executive must keep a register of
approved applications for health information held by the department and
must give access to the register to anyone who requests access.
Public health Inquiries
The Bill provides for the Minister to establish a panel of inquiry in relation
to matters the Minister considers to be serious public health matters. The
role of a panel of inquiry is to inquire into and report on the circumstances
and probable causes of the serious public health matter. The Minister must
table a copy of the panel's report in the Legislative Assembly within 14
sitting days after receiving the report. However, if the panel gives the
Minister a separate report of issues the panel considers should not be made
public, the Minister need not table the separate report in the Legislative
Assembly.
Public health emergencies
The Bill enables the Minister to declare a public health emergency and sets
out the emergency powers that may be used to minimise or control the
emergency (eg. powers to request assistance and information, enter
property and take necessary action, or detain a person). The Minister may
declare an emergency by written order, if the Minister is satisfied it is
necessary to exercise the powers under this chapter to prevent or minimise
serious adverse effects on human health from a public heath emergency. A
declaration will only have effect for a maximum period of seven days,
unless the duration of the declaration is extended by a regulation.
Monitoring and enforcing
The Bill establishes a framework for monitoring and enforcing compliance
with the requirements in the Bill. The Bill enables the appointment of
authorised persons who are provided with the necessary authority for
ensuring public health is protected through compliance with matters such
as public health orders.
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Public Health Bill 2005
Alternative Ways of Achieving Policy Objectives
Ensuring risks to public health are prevented, controlled or minimised
involves balancing the rights of individuals and the needs of the broader
community. Where feasible, the types of matters dealt with under the Bill
would be addressed through public information and awareness,
negotiations with individuals (e.g. to reduce a public health risk) and
relevant protocols and policies. However there will be circumstances
where these approaches will not be sufficient and legislative authority will
be required. The Bill provides the framework for such legislative powers to
be exercised.
Estimated Cost for Government Implementation
There will be no significant on-going additional costs to government
arising from the proposed Bill. The costs associated with responding to a
public health emergency or establishing a public health inquiry will need to
be addressed at that time.
Consistency with Fundamental Legislative Principles
Notwithstanding the safeguards in the Bill, the Bill raises a number of
fundamental legislative principle issues. By its nature, public health
legislation often involves balancing the need to protect the health of the
public against the rights of individuals.
The Bill contains a number of provisions which affect people's rights and
liberties, for example provisions dealing with contact tracing, detention of
persons with certain infectious conditions, inquiry powers and emergency
powers. The consensus (as indicated by two rounds of consultation on
policy underpinning the Bill) is that these provisions are justified in order
to protect public health.
The Bill also includes safeguards to minimise the impact of these
provisions on individual rights and liberties. These safeguards are a
significant improvement upon those provided in the Health Act 1937.
Powers of entry
A number of provisions through the Bill provide powers of entry to
premises for authorised persons. These powers are provided for averting or
controlling public health risks and in some circumstances provide for entry
without a warrant or consent of the occupier. These provisions breach the
fundamental legislative principle in section 4(3)(e) of the Legislative
Standards Act 1992 (LS Act) that provides that legislation should not
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Public Health Bill 2005
confer powers to enter premises without a warrant issued by a judge or
other judicial officer.
However, each of the provisions conferring such authority is justified on
public interest grounds and is also supported by a number of safeguards to
minimise interference with individual rights and liberties.
Specifically, the following provisions provide powers of entry.
Clause 41 - Power of authorised persons to enter place for prevention and
control programs
This provision enables an authorised person to enter a place under a
prevention and control program for designated pests (eg mosquitoes,
vermin) or to search for breeding grounds or sites that harbour these pests.
This power is necessary to prevent the spread of pests that cause disease in
humans and pose a significant threat to public health.
The chief executive (health) may authorise a prevention and control
program only if satisfied there is an outbreak (or potential outbreak) of a
disease capable of transmission to humans by designated pests (eg dengue
fever), or a plague or infestation of designated pests, in an area. Obtaining
warrants is not practical in these circumstances and would inhibit the
ability of authorised persons to effectively control outbreaks of pests in a
timely manner.
The Bill provides for public notification of such programs (cl.38). The
authority to enter places without consent or warrant does not extend to
dwellings or places to which access is restricted (eg a closed verandah).
Access to dwellings and restricted places may only be made with the
consent of the occupier. Authority to enter other places is limited to entry
at a `reasonable time' of the day or night. Clauses 46 of the Bill requires an
authorised person to advise the occupier of the steps taken at the place, or
to be taken under the prevention and control program.
The powers following entry under an approved prevention and control
program are limited to those necessary for carrying out the program. There
is no power to gather evidence of offences.
Clauses 385, 386, 387, 388, 389--Power to enter places
These provisions provide power to enter a place for a variety of reasons,
including to ascertain if there is a public health risk, to check compliance
with and take steps under a public health order, and to carry out an
approved inspection program.
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Public Health Bill 2005
In conjunction with clauses 392 and 393, the provisions all provide that an
authorised officer may enter a place without a warrant or the consent of the
occupier if a reasonable attempt to locate the occupier to gain consent is
made and the occupier cannot be found. If the occupier is located and
refuses consent, the authorised officer is not permitted to enter the place.
Authorised officers who enter a place without consent because the occupier
cannot be located, must leave a notice in a conspicuous and secure way
stating the date, time and purpose of the entry.
These powers of entry do not extend to permitting entry to a building or
other structure. Entry to a building or other structure is only permitted with
the consent of the occupier, an enforcement order or a warrant.
The authorised person must take all reasonable steps to ensure the entry
causes as little inconvenience and does as little damage as practicable in the
circumstances.
In addition, for entry to take steps if a public health order has not been
complied with (cl.387), the occupier and owner of the place to be entered
must be given reasonable notice in writing of the intention to enter and take
the steps required under the public health order.
Authorised inspection programs must be approved by the chief executive of
health or the chief executive officer of a local government. Public notices
of each program are also required (cl.428).
Clause 390 - Power to enter health care facility
For the purposes of monitoring and enforcing compliance with chapter 4 of
the Bill (Infection control for health care facilities), an authorised person is
permitted to enter a health care facility without consent or warrant if the
facility is open for business or otherwise open for entry.
However, the authorised person must advise the person in charge of the
health care facility about the authorised person's intention to enter the
facility at least 24 hours before entry.
It is necessary for the effective monitoring of the legislation for an
authorised person to be able to enter a health care facility, without consent
or warrant, in order to establish that the health care facility is complying
with the requirements of chapter 4 (eg to establish the facility has an
infection control management plan in place).
As an additional safeguard, an authorised person may not enter a part of the
health care facility if a person is undergoing a procedure conducted by a
health practitioner, or consulting a health practitioner, at the facility.
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Public Health Bill 2005
`Shield' provisions
The Bill establishes a number of registers and other collections of health
information related to health issues of particular public concern. The
confidentiality of this information is of utmost importance to ensure that
sensitive health information is protected.
Consequently provisions in the Bill provide that some of information may
only be disclosed and used for very limited purposes related to public
health. Included in these confidentiality provisions are preclusions on
accessing or using the information for civil or criminal court proceedings.
These "shield" provisions are arguably inconsistent with the principles of
natural justice as they deny individuals the use of information that may be
relevant to judicial action (LS Act s.4 (3)b)).
Clause 57 - Use of environmental health event register
The provision enables the Minister to declare by gazette notice that
particular information in an environmental health event register is protected
information. Protected information is not admissible in any proceeding
except proceedings under the Bill or a coronial investigation, and a person
cannot be compelled to produce the protected information, or give evidence
relating to the protected information, in any proceeding, other than a
proceeding under the Bill.
An environmental health event register is established under the Bill to help
monitor any health effects and provide information that may help in the
prevention or treatment of any health effects resulting from an
environmental health event that has been or may be a serious risk to human
health. The information contained in the register may include sensitive
information about individuals' health status and treatment. Inclusion of an
individual's health information on a register is voluntary, therefore to
ensure the participation of people who have been affected by environmental
health events, it is essential that individuals are confident in the security of
particularly sensitive information.
The chief executive may provide information from the register to the
coroner or a police officer assisting the coroner, if the coroner is
investigating a death and the information will assist in the investigation.
The coroner (or police officer) must not use the information for any other
purpose.
Clause 292 - Use of health information held by the department
Under the Bill, health information held by the department can be given to
researchers who apply under the Bill and meet certain criteria. Under this
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Public Health Bill 2005
clause, the Minister may declare by gazette notice that particular health
information given to a researcher is protected information. As above,
protected information is not admissible in any proceedings except
proceedings under the Bill and a person cannot be compelled to produce
the protected information, or give evidence relating to the protected
information, in any proceeding, other than a proceeding under the Bill.
There are particular sensitivities relating to personal health information and
the need to maintain community confidence in public health services.
There may be occasion where the public interest is best served by ensuring
this sensitive information is not disclosed except for the particular research
for which disclosure has been approved.
Both shield provisions above are tempered by the need for the Minister to
reasonably believe that the declaration is in the public interest and by the
ability for protected information to be admitted or produced with the
consent of the person to whom the information relates.
Clauses 87 and 111 - Use of notifiable conditions register, contact
information and business contact information
The Bill requires doctors, persons in charge of hospitals and directors of
pathology laboratories (as the case may be) to notify the chief executive if
an examination indicates that a person has or had a notifiable condition, or
a provisional diagnosis of a notifiable condition. The provision of such
information enables the department to take action to minimise the spread of
serious contagious conditions with minimal infringement of personal
liberties and privacy.
The purpose of the Notifiable Conditions Register (NOCS Register) is to
record all the notifications about notifiable conditions made to the chief
executive. Consequently the register contains sensitive personal
information about individuals with serious conditions. Perceived or actual
misuse or disclosure of information contained in the register may
undermine the integrity of the notifying process and result in doctors
refusing to report notifiable conditions, or patients considering not seeking
medical diagnosis or treatment. The flow-on effects of such omissions
would involve unacceptable risk to the public health.
The Bill also requires individuals and business to give information to
contact tracing officers when required, to enable the contact tracing officer
to trace the movement of a person with a contagious condition. The
purpose of this requirement is to ensure the safety of people who may have
come into contact with a person suffering a contagious condition.
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Public Health Bill 2005
Clauses 87 and 111 provide that no information contained in the register or
provided to a contact tracing officer may be admissible in any proceeding
other than those specified under the relevant clauses and that no person can
be compelled to produce the information or to give evidence relating to the
information in any proceeding other than one under the Act.
The chief executive may provide information from the register to the
coroner or a police officer assisting the coroner, if the coroner is
investigating a death and the information will assist in the investigation.
The coroner (or police officer) must not use the information for any other
purpose. Information may also be provided to a State entity for the purpose
of investigating and prosecuting a serious offence, if there is an agreement
between the chief executive (health) and the entity made under clause
84(1)(b).
An exception to the provisions enables information to be disclosed in a
proceeding with the consent of the person to whom the information relates.
Self-incrimination no defence
The public interest in protecting against serious public health risks is best
served by ensuring the full and frank disclosure of information pertinent to
containing and investigating public health risks.
The fundamental legislative principle in section 4(3)(f) of the LS Act
provides that legislation should provide appropriate protection against self-
incrimination. However, excluding the disclosure of information for such
reasons may jeopardise the tracing of a contagious condition and place the
health of the public at risk. It may also inhibit the effectiveness of formal
inquiries into causes of and action taken in relation to serious public health
matters.
Clauses 100 and 102 - Failure to give contact information/business contact
information
These two provisions provide that where an individual is required to give a
contact tracing officer information the person is not excused from
providing the information on the grounds that complying with the
requirement might tend to incriminate the person. This is to ensure that a
thorough investigation of the risk to public health can be undertaken. It is
necessary for the contact tracing officer to be able to identify any person
who may be at risk of contracting or spreading the contagious condition.
While clauses 100 and 102 removes self-incrimination as a reasonable
excuse for a person to fail to give contact information or business contact
information, these clauses clarify how information given by an individual
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Public Health Bill 2005
(primary evidence), or any information or thing obtained as a direct or
indirect result of evidence is also not admissible (ie derived evidence), may
be used in proceedings. That is, primary and derived evidence is not
admissible in a civil or criminal proceeding, other than:
· criminal proceedings about the falsity or misleading nature of the
primary evidence;
· proceedings for obtaining a controlled notifiable conditions order
under chapter 3 part 5.
Queensland Health adopts a staged process to dealing with individuals with
serious medical conditions who are a risk to the community (eg, Protocol
for the Management of HIV Positive People Whose Behaviour May
Constitute a Public Health Risk). This staged approach involves -
· Counselling, education and support;
· Intensive management and supervision by Queensland Health;
· Restriction of movement and/or activities (as provided for under the
Bill);
· Detention (as provided for under the Bill).
There may be occasions where the particular circumstances cannot be
adequately dealt with through these processes, and the matter needs to be
referred to another party. For example an investigation may be warranted
with a view to a prosecution under s.317 of the Criminal Code (Acts
intended to cause grievous bodily harm and other malicious acts). It would
not be in the public interest for this type of referral to be effectively
prohibited. For this reason the Bill allows derived evidence to be used in
criminal proceedings for a controlled notifiable condition.
As an additional safeguard, clause 105 places strict confidentiality
requirements on information acquired as part of contact tracing. There are
very limited execptions to this duty. In the above situations, the information
could only be disclosed if the chief executive authorises the disclosure to
protect the health and welfare of another person or the chief executive
believes it is in the public interest to authorise the disclosure (see clauses
108 and 109), or with the written consent of the person to whom the
information relates (clause 107).
Clause 308 - Offences by witness
The Minister may establish a panel to inquire into the circumstances and
probable causes of a serious public health matter. The inquiry panel may
require a person to provide information as a witness to the inquiry. A
person asked to provide information must comply and self-incrimination is
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Public Health Bill 2005
not an excuse for non-compliance. Traditionally, removing the privilege
against self-incrimination should only be contemplated when it is more
important to know the facts leading to a significant public health risk than
to prosecute any offences related to the matter. If information can be
withheld from the inquiry, the causes of a public health matter may not be
properly identified and preventative measures could not be implemented
for possible future occurrences.
While clause 308(3) removes self-incrimination as a reasonable excuse for
a person to fail to answer a question or produce a document (or thing),
subclause 308(4) provides that specified evidence (ie primary evidence and
derived evidence) given by a witness is not admissible in a civil or criminal
proceeding. Further, any information or thing obtained as a direct or
indirect result of evidence is also not admissible. Subclause 308(5) also
clarifies that primary or derived evidence is not prevented from being
admitted in evidence in criminal proceedings about the falsity or
misleading nature of the primary evidence.
Clause 346 - Failure to comply with requirement
Clause 346 removes self-incrimination as a reasonable excuse for a person
to fail to comply with a emergency officer's requirement during a declared
public health emergency. This is addressed under the heading "Emergency
Powers", below.
Clause 419 -- Failure to produce document
Under the powers to monitor and enforce the public health requirements in
the Bill, authorised persons may require the production of documents.
Clause 419(2) states that it is not a reasonable excuse for a person not to
comply with a requirement to produce a document if complying with the
requirement might incriminate the person.
An authorised person's power to require a person to produce a document or
make a document available for inspection is limited to documents issued to,
or required to be kept by, the person under the Bill (eg an Infection Control
Management Plan). Given the limited extent of this provision and the
importance of such documents in achieving the objectives of the
legislation, it is reasonable to require a person to comply with the
requirement even if to do so might tend to incriminate the person.
Detention of person with controlled notifiable condition
In controlling the spread of a serious contagious condition that poses an
unacceptable risk to public health, it may be necessary to detain a person
with a controlled notifiable condition to ensure that the person does not
pass the condition on to others in the community.
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Public Health Bill 2005
Such a requirement impinges upon the rights and liberties of an individual
and breaches the fundamental legislative principle in s.4(3)(a) of the LS
Act.
Clause 113 - Chief executive may order detention
The Bill enables the chief executive of health to order the detention of a
person at a public sector health service if the person has presented to a
public sector health service and the chief executive reasonably suspects:
· that the person has a controlled notifiable condition; and
· that the person's condition or the person's condition and likely
behaviour constitutes an immediate risk to public health.
This power applies only in respect of controlled notifiable conditions. A
condition can only be prescribed as a controlled notifiable condition if it is
of significance to public health and is likely to result in serious or long term
deleterious consequences for infected persons (eg SARS). A condition
may also be declared by the Minister during a public health emergency,
however such declarations expire after 28 days.
To minimise the impact upon individuals, the chief executive must be
satisfied that the person has been counselled, or reasonable attempts have
been made to counsel the person about the condition and its possible effects
on the person and the community generally. The order must also be fully
explained in writing and the detention can only be for a maximum period
of 24 hours.
A single person with a serious contagious condition who is refusing to
cooperate with authorised persons may pose a serious risk to public health
by spreading the contagion through contact with other individuals.
Therefore such detention powers are justified to ensure the condition is not
spread further.
Holding a child at risk of harm
The results of the implementation of the Crime and Misconduct
Commission's report into abuse of children in foster care has included a
recognition across all relevant government agencies that the best interests
and welfare of a child must be of paramount concern and outweigh any
other considerations of parental rights or civil liberties.
Health services may be the first to encounter a child who has been or is at
risk of being harmed and are therefore in a position to provide appropriate
measures to protect the child in the first instance until the Department of
Child Safety can intervene. Measures to protect a child from abuse and
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Public Health Bill 2005
neglect often involve breaching fundamental legislative principles such as
removing rights and liberties of individuals under an administrative power
(s.4(3)(a) LS Act) or excluding principles of natural justice (s.4.(3)(b) LS
Act). Ultimately, the safety of a child at risk of abuse or neglect must be
ensured.
Clause 197 - Designated medical officer may make care and treatment
order for child
This provision enables a designated medical officer (DMO) to order that a
child, who has been or is at risk of being harmed, be held at a health service
facility for an initial period of 48 hours with a possible extension of another
48 hours if agreed to by a second DMO. Under the order, the child may be
medically assessed and treated for any harm that has been caused, without
a parent's consent.
There are significant safeguards around the power to ensure it is only used
in exceptional circumstances to protect a child from abuse and neglect.
These safeguards include that:
· the DMO may only order a child be held if the DMO becomes aware
or reasonably suspects that the child has been harmed or is at risk of
harm and is likely to be taken from the facility and suffer harm if
immediate action is not taken;
· the DMO must notify the Department of Child Safety (DChS) (to
enable DChS to undertake appropriate child protection investigations)
and the person in charge of the facility where the child is held;
· the DMO must advise the parents that their child is being held under a
care and treatment order unless this may jeopardise an investigation
into a criminal offence or expose the child to harm;
· only treatment reasonable in the circumstances may be provided;
· the order cannot be extended beyond 96 hours; and
· the parents may request that a doctor of their choosing examine the
child.
The impact on the rights of parents is justified given the potential risk to the
child if an order is not put in place.
Offences of representatives, licensees and corporations
To ensure responsible people and entities fulfil their obligations under the
Bill, three provisions deem a person, licensee or executive officers of a
corporation to have committed an offence if their representative, person in
charge or corporation have committed an offence. These provisions are
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Public Health Bill 2005
inconsistent with the principles of natural justice (s.4(3)(b) LS Act) and
may be seen as reversing the onus of proof in criminal proceedings
(s.4(3)(d) LS Act) and therefore breach fundamental legislative principles.
Clause 184 - Licensee must ensure person in charge complies with part 2
This provision requires that a licensee of a child care service must ensure
that the person in charge of the child care service complies with the
provisions pertaining to contagious conditions affecting children. If the
person in charge of the facility commits an offence under the provisions,
the licensee is also deemed to have committed the offence of not ensuring
that the person in charge complies with the provisions. The licensee will
receive the same penalty that the person in charge will receive for an
offence under the Bill.
The provisions pertaining to contagious conditions affecting children have
the objective of ensuring that contagious conditions are not spread through
schools and child care services. This clause is justified as it reinforces that
the licensee is ultimately responsible for the operation of the child care
service and must give the requirements under the Bill due regard to protect
the health of clients.
It is a defence for the licensee to demonstrate that the licensee exercised
reasonable diligence to ensure the person in charge complied with the
provisions.
Clauses 447 and 448 - Representatives and corporations
Clause 447 provides that an act or omission by a person's representative,
relating to an offence against the Bill, is taken to have been done by the
person, if the representative was acting within the scope of the
representative's authority. In these circumstances, the person will have
been taken to have committed the relevant offence unless the person can
prove that the person could not, by the exercise of reasonable diligence,
have prevented the act or omission.
Clause 448 provides that, if a corporation is convicted of an offence against
the legislation, each executive officer of the corporation is taken to have
committed the offence of failing to ensure that the corporation complies
with the relevant provision. The effect of this clause is to presume an
executive officer of a corporation to be guilty unless the executive officer
can prove that he or she took all reasonable steps to ensure the corporation
complied with the provision, or that he or she was not in a position to
influence the conduct of the corporation in relation to the offence.
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Public Health Bill 2005
While these provisions effectively provide for the reversal of the onus of
proof, it is important to note that the offences provided for under the
legislation deal with major public health issues. Having regard to the
objective of the legislation, it is appropriate that:
· a person be required to oversee the conduct of his or her
representatives and, in doing so, make reasonable efforts to ensure that
his or her employees or agents comply with the requirements of the
legislation;
· an executive officer who is in a position to influence the conduct of a
corporation be required to ensure the corporation complies with the
legislation; and
· an executive officer who is responsible for a contravention of the
legislation, be accountable for his or her actions and not be able to
`hide' behind the corporation.
The provisions are therefore warranted to ensure that there is effective
accountability at a corporate level.
Protections from liability
It is not appropriate that an individual be made personally liable as a
consequence of that individual carrying out his or her responsibilities under
the Bill in good faith. Therefore a number of clauses provide that a person
complying with their responsibilities under the Bill cannot be held liable,
civilly or criminally for certain acts. There is an apparent breach of
fundamental legislative principles (LS Act, s.4(3)(h)) in these provisions,
but the breach is justified to ensure the cooperation of individuals and the
effective enforcement of the legislation.
Clause 179 - Protection for persons acting under part 2
This clause provides that a person acting honestly who gives information or
does something under the part (dealing with controlling contagious
conditions in schools and child care services) such as directing a parent to
remove a child from a school, is not liable, civilly, criminally or under an
administrative process. The protection extends to actions for defamation
and breach of confidentiality and also provides that a person cannot be held
to have breached any code of professional ethics or departed from accepted
standards of professional conduct.
To ensure the effective control of the spread of contagious conditions
through schools and child care services, it is essential that school principals
and persons in charge of child care services as the case may be, are not
inhibited in enforcing the Bill through fear of civil or criminal liability.
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Public Health Bill 2005
Without the cooperation of these individuals, public health is put at risk.
The protection does not extend to a person who is not acting honestly or for
actions taken outside the scope of the Bill. In such circumstances an
aggrieved person may still pursue civil or criminal recompense.
Clauses 195 - Protection from liability for giving information to
professional
Clause 195 provides protection from liability, civilly, criminally or under
an administrative process for a person who, acting honestly, provides
information about suspected child abuse to a doctor or a registered nurse.
The protection includes specific protection from actions for defamation and
breach of confidentiality or privacy.
Identification and appropriate reporting of child abuse and neglect relies on
the people who know about the abuse, reporting it to the appropriate
authorities. In many instances, particularly involving complex family
relationships, a person may feel more comfortable discussing concerns of
child abuse with their or the child's doctor or (in rural, remote or
Indigenous communities particularly) the community nurse. It is essential
to the processes for protecting children, that such persons are not inhibited
from reporting child abuse out of fear of prosecution or retribution. This
also applies, for example to a health care worker who raises concerns about
child abuse or neglect with a doctor. The provision is therefore defensible
on the grounds that if a person could be sued for defamation or breach of
confidence, it is unlikely that notifications would be made to doctors or
registered nurses, and consequently the child protection objectives of the
provisions would be frustrated.
These clauses are consistent with the approach taken in the Child
Protection Act 1999 in relation to people who notify the Department of
Child Safety about a suspected case of child abuse or neglect.
Clause 457 - Protecting prescribed persons from liability
Clause 457 specifies that the Minister, the chief executive, an authorised
person, a contract tracing officer, a designated medical officer, a person
acting under the direction of an authorised person or another officer
mentioned in the Bill who is required to act by the Bill, is not civilly liable
for an act, or omission, made honestly and without negligence under the
Bill.
As it is not appropriate that an individual be made personally liable as a
consequence of that individual carrying out his or her responsibilities under
the legislation in good faith the clause prevents civil liability from being
attached to the individual. If the prescribed person is the chief executive
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Public Health Bill 2005
officer of a local government, an authorised person appointed by a local
government, or a person acting under the direction of an authorised person,
the liability instead attaches to the local government. If the prescribed
person is the Minister or the chief executive, the liability attaches to the
State. The immunity under this clause does not extend to a prescribed
person who has been negligent, even though the person may have acted in
good faith.
Clauses 75, 218, 236 and 265 - Protection where further information is
required
These clauses afford protection to a person who provides further
information in response to a request from the chief executive. Under the
Bill, a person may be required to provide further information about the
notice they had given for a cancer notification, the notifiable conditions
register, the perinatal statistics collection, or the Pap smear register. The
person who gives the further information is deemed not to have breached
any duties of confidentiality and cannot be held to have breached any code
of professional ethics or departed from accepted standards of conduct. This
protection enables accurate and complete information to be collected by the
chief executive.
Emergency powers
The Bill provides powers for the Minister to declare a public health
emergency or an emergency notifiable condition as a controlled notifiable
condition, to minimise or prevent serious adverse effects on human health.
The declaration must be published in the gazette and in newspapers, radio
or television in the affected areas and lasts for seven days unless ended
sooner by the Minister or extended by regulation.
The Bill provides that emergency officers and may be appointed to manage
and control declared public health emergencies. Emergency powers are
provided for the emergency officers to perform the duties necessary to
manage and control the emergency.
Emergency officers are provided with the following powers:
· clause 343 - powers to enter places to save a human life, prevent or
minimise serious adverse effects on human health or to do anything
else to relieve suffering or distress;
· clause 345 - general powers necessary to respond to the declared
emergency. These include the power to require a person to: go to or
stay in a place; not enter or not remain in a place; answer questions
and provide information; regulate their movement into, out of or
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around the emergency area. They also allow emergency officers to
take action in relation to animals, substances, property or things;
· clause 347 - authority to search, inspect, take a thing, copy a
document and require assistance from a person after entering a place
to respond to a declared public health emergency.
Clause 346 removes self-incrimination as a reasonable excuse for a person
to fail to comply with a requirement to act pursuant to clause 345.
However, information gathered may not be used against the person.
Subclause 346(3) provides that specified evidence (ie primary evidence and
derived evidence) given by a person in response to a requirement is not
admissible in a civil or criminal proceeding. Further, any information or
thing obtained as a direct or indirect result of evidence is also not
admissible. Subclause 346(4) also clarifies that primary or derived
evidence is not prevented from being admitted in evidence in criminal
proceedings about the falsity or misleading nature of the primary evidence.
In addition to these powers, emergency officers (medical) also have
authority to order the detention of a person who has a serious disease or
illness and whose likely behaviour constitutes an immediate risk to public
health (cl. 349).
If a person is detained under these provisions, the emergency officer
(medical) must request the person be medically examined to help decide if
the person has the serious disease or illness and whether the person is an
immediate risk to public health. Force may not be used to examine or treat
a person under the emergency powers.
These powers breach fundamental legislative principles. However,
emergency declarations will only be made in exceptional circumstances
and the powers are provided to prevent or minimise public health risks that
may result in serious illness or death. These provisions would only be used
where there are no legislative alternatives that provide the responsiveness
needed to protect lives. In addition, the declaration will only last for a
specified limited time.
Setting of standards for manufacture, use, etc. of paint
Clause 60 makes it an offence to manufacture, sell, supply or use paint
other than in compliance with the standard. "Standard" is defined to mean
the part of the Standard for the Uniform Scheduling of Drugs and Poisons
(SUSDP) dealing with paint, prescribed under a regulation. This is
arguably an inappropriate delegation of legislative power (LS Act s4(4)(a)).
However, the SUSDP is compiled by the Australian Health Ministers'
Advisory Council and the relevant part of the SUSDP must be prescribed in
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regulation (a disallowable instrument) before this clause has effect.
Accordingly, while the delegation is potentially a technical breach of the
fundamental legislative principles, it is made at an appropriate level and is
subject to Parliamentary scrutiny.
Consultation
Significant government and community consultation has been undertaken
through the development of the Bill. Consultation has included the public
release of the Discussion Paper, Review of the Health Act 1937: New
Population Health Legislation for Queensland, in October 1995 and the
Draft Policy Paper, Review of the Health Act 1937 (Public Health), in
February 1998.
A consultation draft of the Public Health Bill 2005 was released for public
comment from October to December 2004.
As part of the consultation process for the Bill:
· some 150 non-government stakeholders, State government agencies
and local governments, were invited to comment on the
appropriateness and workability of the Bill ;
· forums were held with local government in Brisbane, Cairns,
Townsville and Rockhampton;
· presentations on the Bill were made upon the request of key
stakeholders such as the Australian Institute of Environmental Health
(AIEH) and the Infection Control Practitioners Association (Qld);
· notices were placed in the metropolitan and regional newspapers (eg
Courier-Mail, Daily Mercury, Koori Mail) regarding the public release
of the consultation draft of the Bill for comment;
· a copy of the consultation draft of the Bill was placed on Queensland
Health's website;
· meetings were held with key stakeholders to discuss matters raised in
their submissions on the consultation draft of the Bill.
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Notes On Provisions
Chapter 1 Preliminary
Part 1 Introduction
Clause 1 specifies the short title of the Bill.
Clause 2 provides for the Bill to commence on a date to be fixed by
proclamation.
Clause 3 specifies that the Bill binds all persons including the State.
However, the State is not bound by chapter 2, part 3 and sections 386, 394
and 395 in relation to local government public health risks. The effect of
this is that local government cannot issue public health orders or seek
warrants against the State. (Refer also to the explanatory note for clause
61). Clause 3 also provides that the Commonwealth or a State is not liable
to be prosecuted for an offence.
Clauses 4 and 5 outline the relationship between the Bill and civil liabilities
or remedies. The effect of these provisions is that a breach of an obligation
under the Bill (eg under clause 23) would not expose a person to liability
under a civil action for breach of statutory duty. However, another civil
right or remedy (eg based on negligence) would not be affected or limited
by the Bill.
Clause 5 also provides that compliance with the Bill does not necessarily
show that a civil obligation, which exists apart from the Bill, has been
satisfied or has not been breached.
Part 2 Object
Clause 6 identifies the object of the Bill.
Clause 7 outlines how the object is to be achieved.
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Part 3 Interpretation
Clause 8 provides that the dictionary in schedule 2 defines particular words
used in this Bill.
Clause 9 states that notes in the text of the Bill are part of the Bill.
Chapter 2 Environmental Health
Part 1 Public health risks
Clause 10 and 11 define terms for the purposes of chapter 2, including
"public health risk", "local government public health risk" and "State
public health risk".
The definition for public health risks outlines those activities, animals,
substances or things that are to be a public health risk for the purposes of
the Bill and also provides for other public health risks to be prescribed by
regulation.
Local government public health risks and State public health risks are
subsets of public health risks. The distinction is made to enable
responsibility for the administration and enforcement of specified public
health risks to be allocated to either the State or local governments (see
clauses 12 to 18).
Part 2 Roles of the State and Local
Governments for Public Health
Risks
Clause 12 details the matters under chapter 2 for which only the State has
administration and enforcement responsibility.
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Clause 13 details the matters under chapter 2 for which only local
governments have administration and enforcement responsibility.
Clause 14 enables the chief executive (on behalf of the State) and the chief
executive officer (on behalf of a local government) to enter into a
collaborative arrangement whereby the State may assist local government
in relation to a local government public health risk, or the local government
may assist the State in relation to a State public health risk.
Clause 15 provides that the chief executive may administer and enforce the
Bill for a matter in a local government's area, if the chief executive is
reasonably of the opinion that there is a significant risk to public health; the
local government has failed to act under the Bill in relation to a public
health risk; and it is necessary to take action under the Bill to remove or
reduce the risk to public health, or prevent it from recurring. When forming
an opinion about the significance of the risk to public health, the chief
executive must have regard to the potential consequences for the health of
individuals and the number of persons likely to be exposed to the risk.
For example, the chief executive may reasonably be of the opinion that a
risk to public health is significant if only a few individuals are affected but
with severe consequences for those individuals. Conversely, the chief
executive may reasonably be of the opinion that a risk to public health is
significant if a larger number of people are likely to be affected although
the consequences for individuals are relatively minor.
The reasonable costs and expenses incurred by the chief executive as a
result of the chief executive acting under this clause are a debt payable by
the local government to the State, and may be recovered accordingly. In
addition, clause 15 clarifies that the executive may performs functions and
powers to deal with the matter in the local government's area, including
appointing authorised persons.
This power is not intended to be used in respect of minor risks to public
health, such as to resolve individual grievances about local government
decisions regarding administration and enforcement of the Bill for
localised public health risks. Rather, it is intended to enable the State to act
to protect public health from public health risks that have major
implications for the health of individuals or impact on a large number of
individuals.
Clause 16 provides that before exercising the power under clause 15, the
chief executive must first consult with the chief executive officer of the
local government and give the chief executive officer a reasonable
opportunity to take the action necessary to reduce the risk to public health.
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Clause 17 allows the chief executive to require information from a local
government about the local government's administration and enforcement
of the Bill for a matter for which local government has responsibility. This
will allow, for example, the chief executive to assess whether their has been
a failure of local government to administer and enforce the Bill, and assess
what action is necessary to prevent, control or reduce the risk to public
health.
Clause 18 specifies that, if a regulation is made under clause 11 about a
public health risk, the regulation must also allocate responsibility for
administration and enforcement of the public health risk to either the State
or local governments.
Clause 19 provides that local laws made under the Local Government Act
1993 about public health risks are not invalid by reason of inconsistency
with the Bill, as may 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.
However, regulations made under clause 61 about public health risks may
contain offences for non-compliance with prescribed requirements.
Accordingly, subclause 19(3) provides that section 31 of the Local
Government Act 1993 continues to operate to invalidate a local law which
is inconsistent with a regulation made under clause 61 about a public health
risk, to the extent of the inconsistency. For example, a regulation made
about water quality standards for swimming pools, will override
inconsistent similar standards in local laws. This will enable a consistent
State-wide approach to be enacted for a given public health risk, where
desirable.
Clause 20 states that the Bill is to be administered and enforced using the
powers provided in the Bill and not the Local Government Act 1993. This
provision has been incorporated to provide clarity about what powers
should be utilised by local government to enforce the Bill, as there are
equivalent powers provided for under the Local Government Act for
enforcement of "local government laws" (which would include the Public
Health Bill).
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Part 3 Public Health Orders
Clauses 21 to 23 provide for an authorised person (State or local
government) to give a person a public health order requiring them to take
action to remove or reduce a risk to public health, or prevent the risk from
recurring.
Clause 21 sets out what may be required by a public health order, subject to
the following limitations:
-- the requirements specified in the order must be reasonably necessary
to remove or reduce the risk to public health from the public health
risk, or prevent it from recurring;
-- the requirements specified in the order must be appropriate in the
circumstances having regard to the nature and seriousness of the risk
to public health;
-- the period for compliance with the order must be reasonable having
regard to the risk to public health from the public health risk.
The requirements of a public health order must be proportionate to the risk
to public health it seeks to address
Clause 22 directs an authorised person to consult with the department
responsible for the administration of the Exotic Diseases in Animals Act
1981 or the Stock Act 1915 before giving a public health order in relation to
an animal the authorised person suspects has, or may have, a disease
regulated under those Acts.
Clause 23 empowers an authorised person, who reasonably believes a
person is responsible for a public health risk, to give the person a public
health order for the risk. The order, among other matters must state:
-- the steps the recipient must take to remove, reduce or prevent the re
occurrence of the risk to the public health (including any action the
recipient must stop doing);
-- the period for taking the steps or stopping the action;
-- the consequences of not complying with the order, including the
enforcement measures available to an authorised person under the Bill
(eg clauses 387 and 388).
It is an offence not to comply with a public health order, unless the
recipient of the order has a reasonable excuse.
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Clauses 24 to 32 set out matters in relation to the making and execution of
an enforcement order made by a magistrate in response to the failure a
recipient's non-compliance with a public health order.
Clause 24 allows an issuing authority (the State or a local government) to
apply to a magistrate for an enforcement order if the recipient of a public
health order has failed to comply with the order.
Clause 25 states that the person to whom an enforcement order application
relates is to be given prior notice of the hearing to decide the application.
However, if the person does not attend at the specified time and place, the
application may be decided in their absence.
Clause 26 states the matters about which a magistrate must be satisfied
before making an enforcement order. Importantly, the magistrate must be
satisfied that the public health order was appropriate in the circumstances
having regard to the nature and seriousness of the risk to public health from
the public health risk at the time the order was given.
Clause 27 provides that a magistrate, when making an enforcement order,
may order that the recipient of an enforcement order must take the
specified steps to remove or reduce the risk to public health from the public
health risk, or prevent the risk from recurring within a specified time and,
failing compliance with these requirements, the issuing authority may take
the action specified in the order. Alternatively, the magistrate may order
that the issuing authority take the steps to remove or reduce the risk to
public health from the public health risk, or prevent the risk from recurring.
The clause also sets out the matters to be stated in the order, including:
-- the times and intervals for entry;
-- that the issuing authority may use reasonable help and force that is
necessary in the circumstances to take the steps authorised under the
order;
-- who is to pay the costs incurred by the issuing authority under the
order.
Clause 28 makes it an offence not to comply with an enforcement order.
Clause 29 states that a magistrate may hear an application for an
enforcement order and a proceeding for contravention of a public health
order at the same hearing.
Clause 30 provides that before entering a place under an enforcement
order, a reasonable attempt must be made to locate an occupier of the place,
give the occupier a copy of the order, explain that the order authorises entry
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to the place and give a person an opportunity to allow the authorised person
to enter without the use of force.
Clause 31 and 32 provide for an issuing authority 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, clause 31
specifies that an amount payable to a local government bears interest as if it
were an overdue rate, and clause 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.
Clauses 33 and 34 outline the processes whereby a person who has
complied with a public health order can apply to a magistrates court for an
order that a third party pay all or part of the costs of complying with the
order. The third party to whom the application for a cost recovery order
relates must be given notice of the hearing to decide the application.
However, if the person fails to attend, the application may be decided in the
person's absence.
Clause 35 lists the matters about which the magistrate must be satisfied
before making a cost recover order against a third party. Of principal
importance is that the magistrate must be satisfied the third party is
responsible for all or part of the public health risk to which the original
public health order related.
Part 4 Authorised prevention and
control programs
Clause 36 empowers the chief executive to authorise a program for the
prevention and control of designated pests, which are defined as meaning
mosquitoes, rats, mice and other animals prescribed under a regulation.
To declare a prevention and control program, the chief executive must be
satisfied there is, or is likely to be, an outbreak of a disease capable of
transmission to humans by designated pests, or a plague or infestation of
designated pests. This would include, for example, an outbreak of dengue
fever, or an infestation of dengue fever carrying mosquitos. However,
before authorising a program, the chief executive must consult with the
local government for the area to which the program relates.
Clause 37 and 38 require the chief executive to publish the authorisation for
a prevention and control program, including the reasons for the program,
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the area to which the program relates, and the measures to be taken under
the program. However, as time may be of the essence, failure to publish
does not invalidate the authorisation.
Clause 39 provides that the chief executive may authorise the State, local
governments, or both the State and local governments to undertake the
program. The program may only undertaken by authorised persons
appointed for this part.
Clause 40 clarifies that for undertaking a prevention and control program,
an authorised person may only use the powers under this part and may not
exercise the powers under chapter 9. It should be noted, however, that an
authorised person conducting a prevention and control program who is also
appointed for chapter 2, part 3 may give a person a public health order if
the order is for the prevention and control of the designated pests to which
the program relates. For example, following entry under a prevention and
control program for mosquitos, an authorised person may give a public
health order requiring the recipient to empty a stagnant pool to prevent
mosquitos from breeding in the pool.
Clause 41 empowers an authorised person undertaking a prevention and
control program to enter a place at any reasonable time. The clause clarifies
that an authorised person may not enter a dwelling without the occupier's
consent. However, an authorised person may enter the following, which are
stated not to form part of a dwelling:
-- a carport, other than a carport to which access is restricted;
-- the area of a verandah or deck, to which access is not restricted and no
provision is made to restrict access;
-- the area underneath a dwelling to which access is not restricted or no
provision is made to restrict access; or
-- any other external parts of the dwelling, including, for example, the
dwelling's gutters.
Clause 42 provides that if the occupier is present at a place an authorised
person has entered under a prevention and control program, the authorised
person must produce identification and inform the occupier about the
program.
Clause 43 sets out the powers available to an authorised person following
entry to a place under a prevention and control program. These powers are
limited to those necessary to achieve the objective of the program.
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Clause 44 makes it an offence for a person to fail to comply with an
authorised person's reasonable request for help under clause 43, unless the
person has a reasonable excuse.
Clause 45 makes it an offence for a person to interfere with steps taken by
an authorised person under a prevention and control, unless the person has
a reasonable excuse.
Clause 46 requires an authorised person to give an occupier of a place
notice of the authorised person's entry to a place under a prevention and
control program, the purpose of the program, the steps taken under the
program and that it is an offence to interfere with the steps taken.
Part 5 Environmental health events
Clauses 47 to 52 sets out the circumstances under which the chief executive
may establish and maintain an environmental health event register, if the
chief executive considers an environmental health event has or may have
significant direct or indirect adverse effects on human health.
An environmental health event is defined as meaning an event involving
human exposure to a substance or other thing that is known to have, or is
reasonably suspected of having, a significant adverse effect on human
health (clause 47).
As detailed in clause 49, a register may be established to:
-- help monitor and analyse any adverse effects on human health
resulting from an environmental health event; and
-- to provide information that may help in the prevention, minimisation
or treatment of any adverse effects on human health resulting from the
event or similar future events.
The chief must not establish a register until the chief executive has obtained
and considered the views of a human research ethics committee (clause
48). However, as soon as practicable after establishing a register for an
environmental health event, the chief executive must notify the register's
establishment in the gazette (clause 51) and invite those persons, who may
have been affected by the environmental health event to which the register
relates, to have the person's details included in the register (clause 52).
Participation in the register is voluntary.
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Clauses 53 to 57 set out requirements regarding the use and disclosure of
information in an environmental health event register.
Clause 54 prohibits the use of information gathered for an environmental
health event register for a purpose that is inconsistent with the purposes of
the register. It is an offence to fail to comply with this requirement.
Clause 55 makes it an offence for a person to disclose information obtained
as a result of the person performing a function under this part, unless the
disclosure is expressly authorised under the clause, for example, if:
-- the information is disclosed in the performance of functions under the
Bill;
-- the information is disclosed to the person to whom it relates;
-- the information is disclosed in a form that does not identify any
person (eg aggregate data);
-- the disclosure is authorised under an Act or another law.
Clause 56 sets out the circumstances under which information contained in
an environmental health event register may be provided to the coroner, or to
a police officer helping the coroner to investigate the death of a person.
Clause 57 enables the Minister to declare, by gazette notice, that
information contained in an environmental health event register is
protected information, if the Minister reasonably believes it is in the public
interest to do so. Such a declaration means that:
-- the information cannot be accessed under any order, whether of a
judicial or administrative nature, other than an order for the purpose of
this Bill;
-- the information is not admissible in any proceeding, other than a
proceeding under this Bill; and
-- a person cannot be compelled to produce the information, or to give
evidence relating to the information, in any proceeding, other than a
proceeding under this Bill.
However, these restrictions do not apply if the information is admitted,
produced or given with the consent of the person to whom the information
relates. Also, these restrictions do not apply to information provided under
clause 56 in relation to a coronial investigation of a death.
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Part 6 Lead
Clause 58 prohibits the use of lead in building works, if the lead is easily
accessible to children. It should be noted that lead used in contravention of
this clause is also a public health risk (see clause 11(1)(b)(vii)). Under
chapter 2, part 3 of the Bill, a public health order may be issued to remove
or reduce the risk to public health from the public health risk, or prevent the
risk from recurring.
Clause 59 prohibits the use of lead in things used to collect potable water
(i.e. water that is intended to be, or is likely to be, used for human
consumption).
Part 7 Paint
Clause 60 prohibits the manufacture, sale, supply or use of paint other than
in compliance with the provisions of the Standard for the Uniform
Scheduling of Drugs and Poisons prescribed under regulation.
Part 8 Regulations about public health
risks
Clause 61 provides for regulations to be made about public health risks.
The regulation must state whether the regulation is to be administered and
enforced by the State or local governments (see clauses 12 to 18 about the
roles of the State and local government). A regulation made under this
head of power will not bind the State except to the extent prescribed under
the regulation.
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Chapter 3 Notifiable Conditions
Part 1 Definitions, purpose of chapter
and guiding principles
Clauses 62 to 64 define terms for the purposes of chapter 3 including, for
example, notifiable condition and controlled notifiable condition.
A medical condition may be prescribed under regulation as a notifiable
condition if the Minister is satisfied the condition is a significant risk to
public health (clause 64).
While some notifiable conditions can be identified as a result of a clinical
examination by a doctor, other conditions can only be confirmed on the
basis of a pathological examination. Accordingly, the Bill (clause 62)
provides for a regulation to prescribe those notifiable conditions that may
be classified as a clinical diagnosis notifiable condition (i.e. a notifiable
condition for which a diagnosis can be made on the basis of clinical
evidence, including clinical history, signs and symptoms) or a pathological
diagnosis notifiable condition (i.e. a notifiable condition for which a
diagnosis can be made on the basis of a pathological examination of a
specimen of human origin).
As the identification of new and emerging infectious medical conditions is
critical to the provision of an effective public health response, the Bill also
provides for the following notifiable conditions to be prescribed under
regulation:
-- provisional diagnosis notifiable conditions - that is, a notifiable
condition, for which a provisional diagnosis can be made on the basis
of clinical evidence, including clinical history, signs and symptoms.
This would include, for example, the identification of conditions for
which there are no recognised pathology tests such as ciguatera
poisoning;
-- pathology request notifiable conditions - that is, a notifiable condition
for which a pathology laboratory will be required to make a
notification upon receipt of a request for a pathology examination of a
specimen of human origin. This would include, for example,
notification of requests for SARS tests during the 2003 outbreak that
facilitated coordination of an appropriate response, including
rationalisation of testing.
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Public Health Bill 2005
In addition, the Bill provides for certain notifiable conditions to be
classified as controlled notifiable conditions. Under clause 63, a medical
condition may be prescribed under regulation as a controlled notifiable
condition if the Minister is satisfied that the condition may have a
substantial impact on public health; the ordinary conduct of a person with
the condition is likely to result in the transmission of the condition to
someone else; and the transmission of the condition will result in, or is
likely to result in, long term or serious deleterious consequences for the
health of another person.
Clause 65 sets out the purpose of chapter 3, which is to protect persons
from notifiable conditions through mechanisms that provide an appropriate
balance between the health of the public and the right of individuals to
liberty and privacy.
Clause 66 sets out principles to guide the administration and enforcement
of chapter 3.
Part 2 Notifiable conditions register
Clause 67 requires the chief executive to establish and maintain a
Notifiable Conditions Register (the register), comprised of information
obtained about persons who have, or are suspected of having, a notifiable
condition.
It should be noted that clause 465 provides for information obtained about
notifiable conditions under the Health Act 1937 to be incorporated into the
register.
Clause 68 sets out the purpose of the register, for example, to enable
monitoring and analysis of incidences of notifiable conditions; study the
efficacy of treatment; increase public awareness; identify outbreaks so that
action may be taken; and help in the planning of services and strategies to
prevent or minimise transmission of notifiable conditions.
Clause 69 clarifies that a requirement to make a notification under part 2
about a notifiable condition applies in relation to deceased persons (eg
where a pathology examination from an autopsy indicates the person was
suffering from a notifiable condition).
Clause 70 imposes a statutory obligation on doctors to make a notification
to the chief executive if they suspect a person has or had a clinical
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diagnosis notifiable condition or a provisional diagnosis notifiable
condition.
Clause 71 imposes a statutory obligation on persons in charge of a hospital
to make a notification about a person if it is suspected the person has or had
a clinical diagnosis notifiable condition or a provisional diagnosis
notifiable condition.
Clause 72 and 73 imposes a statutory obligation on directors of pathology
laboratories to make a notification to the chief executive about a
pathological diagnosis notifiable condition or a request for a pathological
examination of a speciem of human origin for a pathology request
notifiable condition.
Clause 74 specifies that an anonymity code may be used when making a
notification under clauses 70 to 73. However, under clause 75 the chief
executive may require the full name of, and other identifying information
about, a person (eg where such information is necessary to prevent or
minimise the spread of a notifiable condition).
Clause 75 enables the chief executive to obtain further information in
relation to a notification made under clauses 70 to 73 to ensure the
accuracy, completeness or integrity of the register; or to prevent or
minimise the spread of a notifiable condition. A person who provides
information in response to a request from the chief executive is deemed not
to have breached any duties of confidentiality or privacy and is not liable
for disciplinary action for giving the information.
It is an offence for a person to fail to comply with a mandatory notification
requirement under clauses 70 to 73, or to fail to provide further information
requested under clause 75.
Clauses 76 to 88 set out requirements regarding the use and disclosure of
information in the notifiable conditions register.
Clause 77 makes it an offence for a person to disclose information obtained
as a result of the person performing a function under part 2, unless the
disclosure is expressly authorised under clauses 78 to 85, for example, if:
-- the information is disclosed in the performance of functions under the
Bill;
-- the information is disclosed to the person to whom it relates;
-- the disclosure is authorised under an Act or another law; or
-- the disclosure of the information is authorised by the chief executive
to identify the potential source of an outbreak of a notifiable
condition.
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Section 62A of the Health Services Act 1991 is specifically excluded from
operating in relation to confidential information defined in clause 76.
The duty of confidentiality under clause 77 applies to information obtained
about notifiable conditions under part 2 and the Health Act 1937.
Clause 86 sets out the circumstances under which information from the
register may be provided to the coroner, or to a police officer helping the
coroner to investigate the death of a person.
Clause 87 imposes limitations on the use of information from the register
by specifying that:
-- the information cannot be accessed under any order, whether of a
judicial or administrative nature, other than an order for the purpose of
this Bill;
-- the information is not admissible in any proceeding, other than a
proceeding under this Bill;
-- a person cannot be compelled to produce the information, or to give
evidence relating to the information, in any proceeding, other than a
proceeding under this Bill.
However, these restrictions do not apply if the information is admitted,
produced or given with the consent of the person to whom the information
relates. Nor do these restrictions apply to information provided under
clause 86 in relation to a coronial investigation of a death or under clause
88 in relation to an investigation of a serious offence.
Clause 88 enables information from the register to be released to an entity
of the State to investigate a serious offence, if the chief executive and entity
have entered into an agreement under clause 84. Serious offence is defined
to mean an offence under section 90 of the Prostitution Act 1999 or section
317 of the Criminal Code.
Section 90 of the Prostitution Act creates an offence if a person works as a
prostitute at a brothel during any period in which the person knows that he
or she is infective with a sexually transmissible disease. The person is taken
to have known that he or she was infective unless the person proves that he
or she had been attending regular medical examinations or tests and the
person believed on reasonable grounds that he or she was not infective with
a sexually transmissible disease.
Section 317 of the Criminal Code specifies that a person is guilty of a
crime, and is liable to imprisonment for life if the person intentionally in
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any way unlawfully wounds, does grievous bodily harm, or transmits a
serious disease to, any person.
Part 3 Contact tracing
Clauses 89 to 97 outline the functions and conditions under which a person
may be appointed and hold office as a contact tracing officer. The principal
function of a contact tracing officer is to help prevent or minimise the
spread of a notifiable condition by identifying, and providing information
to, persons who have, or may be at risk of contracting, a notifiable
condition.
The chief executive (health) may appoint a public service officer or
employee, a health service employee, a person employed by a local
government or a person prescribed under a regulation as a contact tracing
officer. However, the chief executive may only appoint a person as a
contact tracing officer if the chief executive is satisfied that the person is
qualified for appointment because the person has the necessary expertise or
experience and the person has the competencies, if any, prescribed under a
regulation.
Furthermore, if the chief executive intends to appoint a person employed by
a local government as a contact tracing officer, the chief executive must
obtain the agreement of the executive officer of the local government that
employs the person. The instrument appointing the person must state the
notifiable conditions to which the appointment applies.
Under clause 99, a contact tracing officer may ask a person the officer
reasonably suspects has a notifiable condition, or has been in contact with a
person who has, or may have, a notifiable condition for the following
information:
-- the person's name and residential address or another address where
the person may be contacted;
-- the name, address, whereabouts and telephone number of any other
person who may have transmitted the notifiable condition to the
person or to whom the person may have transmitted the notifiable
condition;
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-- information about the circumstances in which the person may have
been exposed to the notifiable condition or may have exposed another
person to the notifiable condition.
Under clause 101, a contract tracing officer may ask the owner or the
person in charge of a business for the following information if the officer
reasonably suspects that a person may have contracted a notifiable
condition while receiving or providing goods or services from or to a
business:
-- the owner's or person's name and residential address or another
address where the owner or person may be contacted;
-- the name, address, whereabouts and telephone number of any person
who received or provided goods or services from or to the business
within a stated period;
-- information about the circumstances in which a person who received
or provided goods or services from or to the business may have been
exposed to the notifiable condition or may have exposed another
person to the notifiable condition.
Business is defined for the purposes of clause 101 to mean any organisation
whether or not the organisation operates to make a profit.
Under clause 99 and 101 a contact tracing officer may, in the first instance,
ask for the contact information or business contact information, and, as
may be necessary, evidence of the correctness of the information. If a
person fails to provide the information, the contact tracing officer may give
the person a written notice stating, among other matters:
-- the information is needed to attempt to prevent or minimise the spread
of the notifiable condition;
-- the information must be given to the contact tracing officer within a
stated time;
-- it is an offence to fail to give the information, unless the person has a
reasonable excuse.
A person must not say anything to a contact tracing officer that is false or
misleading.
When exercising a power under part 3, a contact tracing officer must
produce identification (eg by displaying an identify card issued to the
officer by the chief executive). However, if it is not practicable to do so, the
contact tracing officer must produce the identity card for the person's
inspection at the first reasonable opportunity (clause 94).
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It is an offence to fail to comply with an information requirement under
clause 99 or 101, unless a person has a reasonable excuse (clauses 100 and
102). In order to ensure the provision of information that is necessary to
prevent or minimise the transmission of a notifiable condition, it is not a
reasonable excuse for a person to fail to give the information on the
grounds that it may tend to incriminate the person. However, clause 100
and 102 clarify how contact information or business contact information
given by an individual (primary evidence), or any information or thing
obtained as a direct or indirect result of evidence is also not admissible (ie
derived evidence), may be used in proceedings. That is, primary and
derived evidence is not admissible in a civil or criminal proceeding, other
than:
-- criminal proceedings about the falsity or misleading nature of the
primary evidence;
-- proceedings for obtaining a controlled notifiable conditions order
under chapter 3 part 5.
However derived evidence may be used in criminal proceedings about a
controlled notifiable condition (eg a breach of clause 143 or section 317 of
the Criminal Code).
In order to assist a contact tracing office to effectively carry out their
functions, clause 103 enables a contact tracing officer to inspect health
information held by the department where it is reasonably suspected that a
person has a notifiable condition and the officer has been unable to locate
and question the person despite reasonable attempts to do so. The
information that may be accessed by a contact tracing officer is limited to:
-- a person's name and residential address or another address where the
person may be contacted;
-- the name and address, whereabouts and telephone number of any
other person who may have transmitted the notifiable condition to the
person or to whom the person may have transmitted the notifiable
condition;
-- information about the circumstances in which a person may have been
exposed to a notifiable condition or may have exposed others to the
notifiable condition.
Clauses 104 to 111 set out requirements regarding the use and disclosure of
information obtained under the contact tracing provisions in part 3.
Clause 105 makes it an offence for a person to disclose information
obtained as a result of the person performing a function under part 3, unless
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the disclosure is expressly authorised under clauses 106 to 110, for
example, if:
-- the information is disclosed in the performance of functions under the
Bill;
-- the information is disclosed to the person to whom it relates;
-- the disclosure is authorised under an Act or another law;
-- the disclosure of the information is authorised by the chief executive
to enable a person to protect the health of that person or another
person.
Section 62A of the Health Services Act 1991 is specifically excluded from
operating in relation to confidential information defined in clause 104.
The duty of confidentiality under clause 105 applies to information
obtained under part 3 and similar information obtained under the Health
Act 1937.
Clause 111 imposes limitations on the use of information from the register
by specifying that:
-- the information cannot be accessed under any order, whether of a
judicial or administrative nature, other than an order for the purpose of
this Bill;
-- the information is not admissible in any proceeding, other than a
proceeding under this Bill or a proceeding mentioned in clause 100 or
102;
-- a person can not be compelled to produce the information, or to give
evidence relating to the information, in any proceeding, other than a
proceeding under this Bill.
However, these restrictions do not apply if the information is admitted,
produced or given with the consent of the person to whom the information
relates.
Part 4 Orders by chief executive about
controlled notifiable conditions
Clauses 112 to 115 set out matters in relation to an order made by the chief
executive (health) for the detention of a person at a public sector health
service for a maximum period of 24 hours (i.e. a chief executive's order).
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Clause 113 specifies that the chief executive may order the detention of a
person if the chief executive:
-- reasonably suspects that a person who has presented to a public sector
health service has, or may have a controlled notifiable condition; and
-- reasonably suspects the person's condition or the person's condition
and likely behavior, constitutes an immediate risk to public health;
and
-- is satisfied the person has been counselled, or reasonable attempts
have been made to counsel the person, about the condition and its
possible effect on the person's health and on public health.
The order must be in writing and commences from the time it is given to
the person the subject of the order (clause 113 and 115). It is an offence,
carrying a maximum penalty of 200 penalty units, to fail to comply with an
order made by the chief executive under clause 113.
Clause 114 provides for the enforcement of a chief executive's order by the
person in charge of the public sector health service where the person is to
be detained. The person in charge must give the person a copy of the order
and explain, in general terms, the purpose and effect of the order, including
that it is an offence not to comply with the order. The person in charge may
use the help and force that is reasonable in the circumstances.
A chief executive's order ends 24 hours from the time it is given to the
person the subject of the order, unless the chief executive orders the earlier
release of the person or when a magistrate's order is made in relation to the
person the subject of the order under part 5 (clause115).
Part 5 Orders by magistrate about
controlled notifiable conditions
Part 5 sets out matters in relation to an application for, and the making,
duration and enforcement of, controlled notifiable conditions orders (ie an
initial examination order, a behavioural order or a detention order).
Clause 116 sets out how the chief executive may apply to a magistrate for a
controlled notifiable condition order, including that an application must be
sworn and provide information about:
-- the controlled notifiable condition the person has or is suspected of
having;
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-- the grounds on which it is made;
-- the nature of the order sought;
-- if a person is to be detained under the order, the proposed
arrangements for the person's detention and care.
Clause 117 sets out the circumstances under which a magistrate may
decide an application for a controlled notifiable condition order in the
absence of the person for whom the order is sought. However, the clause
clarifies that another person may represent the person.
As soon as practicable after making a controlled notifiable condition order,
an authorised person executing the order must give the person the subject
of the order, a copy of the order; explain the terms and effect of the order to
the person including that is an offence not to comply with the order; and
inform the person about the right of appeal against the order and how to
appeal (clauses 120, 127 and 131).
Where an initial examination order or a detention order is made for a
person, the person must also be given an opportunity to voluntarily
accompany the authorised person to the place where the person is to be
examined and/or treated (clauses 120 and 131). The doctor undertaking the
examination or treatment must, if practicable, provide the person with an
explanation about the examination or treatment. In addition, the person
must be provided with an opportunity to submit to the examination or
treatment voluntarily (clauses 123 and 133). However, if a person does not
submit voluntarily, the doctor may undertake the examination or treatment
using the force that is reasonable in the circumstances.
Clauses 118 to 124 outline matters in relation to initial examination orders.
Under clause 118, a magistrate may make an initial examination order for a
person if the magistrate is satisfied:
-- the person has, or is likely to have, a controlled notifiable condition;
and
-- that if the person has the condition, that the person's condition and/or
likely behaviour may constitute an immediate risk to public health;
and
-- it is necessary for the person to undergo a medical examination to
ascertain whether the person has the condition; and
-- the person has been counselled, or reasonable attempts have been
made to counsel the person, about the condition and its possible effect
on the person's health and on public health.
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Clause 119 outlines that an initial examination order may provide for the
person the subject of the order to:
-- be taken to and detained at the place stated in the order;
-- undergo the medical examination stated in the order to ascertain
whether the person has the controlled notifiable condition stated in the
application;
-- be detained in isolation for part or all of the period of detention;
-- be detained for a maximum period of 72 hours or a longer period if the
magistrate is satisfied that because of the nature of the controlled
notifiable condition a longer period is required to ascertain whether
the person has the condition.
Clause 121 specifies that a person detained under an initial examination
order must remain in the place of detention, for the time stated in the order
and undergo the medical examination stated in the order. It is an offence,
carrying a maximum penalty of 400 penalty units, to breach the
requirements of clause 121.
Clause 122 establishes when the period of detention starts for a person
under an initial examination order. However, clause 124 provides that a
person detained under such an order is to be released if the chief executive
is satisfied the reason for the order no longer exists.
Clauses 125 to 128 outline matters in relation to behavioural orders.
Under clause 125, a magistrate may make a behavioural order for a person
if the magistrate is satisfied:
-- the person has a controlled notifiable condition; and
-- that if the person has the condition, that the person's condition and/or
likely behaviour may constitute an immediate risk to public health;
and
-- the person has been counselled, or reasonable attempts have been
made to counsel the person, about the condition and its possible effect
on the person's health and on public health; and
-- the person has been counselled, or reasonable attempts have been
made to counsel the person, about the condition and its possible effect
on the person's health and public health.
Clause 126 outlines that a behavioural order may provide for the person the
subject of the order to: undergo counselling by a stated person or persons;
refrain from stated conduct; refrain from visiting stated places; or submit to
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supervision and monitoring of another person (i.e. a particular person or a
person nominated by the chief executive).
Clauses 129 to 133 outline matters in relation to detention orders.
Under clause 129 a magistrate may make a detention order for a person if
the magistrate is satisfied:
-- the person has a controlled notifiable condition; and
-- that if the person has the condition, that the person's condition and/or
likely behaviour may constitute an immediate risk to public health;
and
-- the person needs to be detained at a stated place for a stated period to
avoid the person's condition or the person's condition and likely
behaviour constituting a risk to public health; and
-- the person has been counselled, or reasonable attempts have been
made to counsel the person, about the condition and its possible effect
on the person's health and on public health.
Clause 130 outlines that a detention order may provide for the person the
subject of the order to:
-- be taken to and detained at the place stated in the order;
-- undergo the medical examination or treatment stated in the order by a
doctor nominated by the chief executive;
-- be detained in isolation for part or all of the period of detention;
-- be detained for a maximum period of 28 days.
Clause 132 specifies that a person detained under a detention order must
remain in the place of detention, for the time stated in the order and
undergo the medical examination and/or treatment stated in the order. It is
an offence, carrying a maximum penalty of 400 penalty units, to breach the
requirements of clause 132.
The chief executive may apply to a magistrate for an order to extend a
behavioural or detention order, or to vary or revoke an initial examination,
behavioural or detention order (clauses 134 and 135). The application for
extension must be made before the expiration of a controlled notifiable
condition order and may only be extended once. In the case of a detention
order an extension cannot be for more than 28 days.
When considering an application for variation or revocation, the magistrate
may have regard to any contravention of an initial examination or
behavioural or detention order.
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Clauses 136 to 139 provide for an application to be made to a magistrate
for an apprehension warrant if a person who is subject to an initial
examination order or detention order absconds while under the order. An
application for a warrant may be made in urgent circumstances or other
special circumstances by electronic communication or other means.
Clause 139 states that a warrant is not invalidated by a defect in the warrant
or the process unless the defect affects the substance of the warrant in a
material particular.
If the magistrate is satisfied that the warrant is necessary, under clause 137,
the warrant may authorise any authorised person to:
-- enter or re-enter any place if there is a reasonable belief the person is
at the place; and
-- search the places to find the person; and
-- remain in the places for as long as the authorised person considers is
reasonably necessary to find the person; and
-- take the person to the place where the person is to be detained under
an initial examination order or a detention order.
The clause also provides authority for an authorised person to use the help
and force reasonable in the circumstances to exercise powers under the
warrant.
Clauses 140 and 141 prescribe the procedures that must be followed by an
authorised person before entering a place under either an order or a
warrant. Such procedures include identifying him or herself, providing the
occupier with a reasonable opportunity to provide entry without using force
and giving the person a copy of the order or warrant as the case may be.
However, the procedures need not be complied with if the authorised
person believes on reasonable grounds that immediate entry is required to
ensure effective execution of the order or warrant.
Clause 142 provides that the chief executive or a person to whom an
application for a controlled notifiable condition order relates, may appeal
to the District Court against a decision on an application for a controlled
notifiable conditions order or a variation or extension of a controlled
notifiable conditions order.
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Part 6 Reckless spread of controlled
notifiable conditions
Clause 143 makes it an offence for a person to recklessly put another
person at risk of contracting a controlled notifiable condition, unless the
other person knew that the person had the condition and voluntarily
accepted the risk of contracting the condition. The maximum penalty that
may be imposed for this offence is 200 penalty units or 18 months
imprisonment.
The clause also makes it an offence to recklessly transmit a controlled
notifiable condition to another person, unless the other person knew that
the person had the condition and voluntarily accepted the risk of
contracting the condition. The maximum penalty that may be imposed for
this offence is 400 penalty units or 2 years imprisonment.
It should be noted that the deliberate transmission of, or exposure of
another person to, a serious transmissible infection is provided for under
section 317 of the Criminal Code.
Part 7 Proceedings
Clause 144 specifies that proceedings provided for under chapter 3 may be
heard in private, if the court considers an open hearing would be unfair to a
person or contrary to the public interest. Should a proceeding be heard in
camera, the clause also makes it an offence for a person to make or publish
a report about the proceedings other than as provided for by the clause (eg
where a report is authorised by the court concerned).
Part 8 Other matters about controlled
notifiable condition orders
Clause 145 enables information to be provided to a person who is required
to enforce a chief executive's order under clause 113 or a controlled
notifiable condition order. Information may be provided under this section
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to protect the safety of the person the subject of an order and the safety of
the person enforcing the order.
Clause 146 makes it an offence for a person to obstruct a person exercising
a power under chapter 3 (eg enforcing a controlled notifiable condition
order).
Chapter 4 Infection Control For Health
Care Facilities
Part 1 Preliminary
Clauses 147 to 149 define terms used in chapter 4, including `ICMP',
`declared health service' and `health care facility'.
An ICMP, or infection control management plan, is a documented plan to
prevent or minimise the risk of infection to persons receiving declared
health services at the facility, persons employed or engaged at the facility,
and other persons at risk of infection at the facility (clauses 152 and 155).
Declared health service means a service that is intended to maintain,
improve, or restore a person's health, and involves the performance of an
invasive procedure or an activity that exposes a person to blood or other
bodily fluid.
The term `health care facility' has been defined for the purposes of chapter
4 having regard to the need to specify who is required to have an infection
control management plan. Where the provision of a declared health service
is the principal function of a facility (eg public sector hospital, dental
clinic, ambulance service) the facility will be required to have an ICMP.
However, if the provision of a declared health service is not the principal
function of a facility (eg the first aid room in a school or workplace) the
facility will not be required to have an ICMP, but the persons involved in
the provision of the declared health service will be subject to the general
obligation to minimise the risk of infections to other persons.
Clause 150 clarifies that chapter 4 will not apply to: private health facilities
licensed under the Private Health Facilities Act 1999; an area within a
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health care facility used for food services; or an aged care service
conducted by an approved provider under the Aged Care Act 1997 (Cwth).
It is not necessary for chapter 4 to apply to these facilities, as the regulatory
regimes for these facilities impose infection control requirements that are
comparable to those under the chapter.
In addition, clause 150 specifies that the Workplace Health and Safety Act
1995 or Environmental Protection Act 1994 will prevail, to the extent that
there is a conflict between either of these Acts and chapter 4.
Part 2 Obligations to minimise infection
risks for declared health services
Clause 151 imposes a statutory obligation on persons involved in the
provision of declared health services to take reasonable precautions and
care to minimise the risk of infection to other persons. The obligation
applies, for example, to owners of a health care facility, those persons
responsible for the operation of a health care facility, individual health care
providers and support staff.
The clause also clarifies that this obligation is in addition to the obligations
imposed on owners and/or operators of health care facilities under clauses
153 and 154 about the development, implementation and review of an
infection control management plan (ICMP); the training of employees and
other persons about the ICMP; and the provision of adequate resources to
give effect to, and implement, the ICMP. Clause 153 sets out how these
obligations must be met by a person who is the owner of a health care
facility, but not the person who has day-to-day responsibility for the
operation and control of the health care facility (the operator). Clause 154
sets out how these obligations must be met by a person who is both owner
and operator of a health care facility.
Part 3 Infection Control Management
Plans
Clauses 152 to 156 set out requirements for the development,
implementation, monitoring and review of an infection control
management plan (ICMP).
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Clause 155 sets out the minimum requirements for an ICMP, including:
-- the matters to be addressed by the plan, which may be prescribed
under regulation; and
-- that the plan must be written in such a way as to be easily understood
by persons required to use the plan; and
-- that the plan must be readily accessible to persons required to use the
plan; and
-- that the plan must be signed and dated by the operator of the facility
(including each time the plan is reviewed).
Clause 156 sets out when an operator of a health care facility must develop
and implement an ICMP. In addition, clause 155 specifies that if after
developing an ICMP, the operator of a health care facility intends to
provide a declared health service, which is not identified in the plan, the
operator must review and amend the plan. Such action must be taken
before the declared health service is provided in order to ensure that any
necessary infection control measures have been implemented.
Part 4 Reporting contraventions of
chapter 4 to other entities
Clause 157 enables the chief executive to respond to a contravention of an
obligation under chapter 4 and refer a matter regarding such a failure to a
relevant entity - for example, the Health Rights Commission, the
Queensland Nursing Council, a health practitioner registration board or
another entity able to deal with the matter under another Act. An authorised
person may use the powers under chapter 9 to investigate a matter in
relation to chapter 4.
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Chapter 5 Child health
Part 1 Definitions
Clauses 158 to 160 define terms for the purposes of chapter 5, including
child, harm, parent, person in charge and prescribed period.
Part 2 Contagious conditions
Clause 161 imposes a statutory obligation on parents not to send their
children to school or child care if they know, or ought reasonably to know,
their child has a contagious condition or the parent has been directed under
chapter 5, part 2 to remove and not to send their child to the school or
service for a prescribed period.
Clause 162 imposes a statutory obligation on a teacher or child care worker
to advise the person in charge if they suspect a child attending the teacher's
school or carer's child care service may have a contagious condition.
Clause 163 enables a person in charge of a school or child care service to
advise a child's parent if they reasonably suspect that a child attending the
school or service may have a contagious condition and other children
attending the school or service may be at risk of contracting the condition.
Clause 164 enables a person in charge of a school or child care service to
direct a child's parent to remove and not send their child to the school or
service for a prescribed period. The direction can only be made if the child
continues to attend the school or service, or the parent tells the person in
charge that the child will continue to attend the school or service and the
person in charge has:
-- advised at least one of the child's parents about their suspicion that the
child has a contagious condition (see clause 163); and
-- reasonably suspects that there continues to be a risk that other children
may contract the contagious condition because of the child's
continued attendance at the school or service; and
-- the person in charge has consulted a doctor or another person
authorised by the chief executive (health).
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Clause 165 enables a person in charge of a school or child care service to
advise a child's parent if they reasonably suspect that a child attending the
school or service who has not been vaccinated for a contagious condition
(i.e. a vaccine preventable condition) may be at risk of contracting the
condition because another child attending the school or service has the
condition.
Clause 166 enables a person in charge of a school or child care service to
direct a child's parent to remove and not send the child to the school or
service for a prescribed period. The direction can only be made if the
person in charge has:
-- advised at least one of the child's parents about their suspicion that the
child is at risk of contracting a contagious condition (see clause 165);
and
-- reasonably suspects that the child will be at risk of contracting the
contagious condition because of the child's continued attendance at
the school or service; and
-- consulted a doctor or another person authorised by the chief executive
(health).
Clauses 167 and 168 set out the circumstances under which the chief
executive may arrange for a doctor to examine children attending a school
or child care service to decide whether the children have, or may have, a
contagious condition. An examination of a child may not be undertaken
without the consent of a parent of the child.
Clause 167 specifies that before an examination may take place, the chief
executive must consult with the person in charge of the school or service
and give the person in charge a notice about the date, time, reasons and
who will be conducting the examination as well as the children, or class of
children, to be examined.
In addition, under clause 168, the chief executive must advise at least one
of a child's parents:
-- of the date, time, reasons and who will be conducting the examination;
-- that the parent's consent is required for the examination to be carried
out;
-- that the parent may be present during the examination;
-- that the parent may elect to have a doctor of their own choice certify
whether or not the child has, or may have, the condition.
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The chief executive must also advise the parent that they may be directed to
remove and not send their child to school or child care service, if:
-- the parent fails to have their child examined either by a doctor of their
choice or the doctor nominated by the chief executive; or
-- the examination of their child reveals the child has, or may have, the
condition.
Clause 169 sets out the circumstances under which the chief executive may
direct a person in charge of a school or child care service to direct a parent
that they must remove and not send their child to school or a child care
service.
Clause 170 requires a person in charge of a school or child care service to
provide specified information to a parent to whom a direction has been
given about their child's attendance at the school or service under clauses
164, 166 or 169. This information must include the suspected contagious
condition that led to the direction, the prescribed period during which the
child must not attend the school or service (clause 160), and the
circumstances under which a child may be readmitted to the school or
service (clause 171).
Clause 171 sets out the circumstances under which a child may be
readmitted to a school or child care service before the prescribed period for
the contagious condition ends - for example, if a certificate signed by a
doctor is produced to the person in charge stating that the child does not
have the condition or that the prescribed period for the condition has ended.
Under this clause, if a child is not attending school or child care as a result
of a direction from the chief executive to the person in charge of a school or
child care service, the person in charge must not readmit the child unless
directed to do so by the chief executive.
Clause 172 enables the chief executive to obtain specified information from
the person in charge of a school or child care service, to the extent that it is
available to the person in charge. The information that may be required is
limited to that which is necessary for the chief executive to act under
chapter 5, part 2 (eg as envisaged by clauses 164, 166, 167 and 169). The
information must be provided despite the confidentiality requirements of
an Act or another law (including, for example, the Child Care Act 2002,
section 87 and the Education (General Provisions) Act 1989, section 25).
Clause 173 enables health information held by the health department to be
given to the chief executive, a person in charge of a school or child care
service, or another person involved in the administration of part 2.
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However, such information may only be given to the extent that it is
necessary for the administration of part 2. The information may be
provided despite the confidentiality requirements of an Act or another law
(including, for example, section 62A of the Health Services Act 1991).
Clause 173 also provides that the chief executive must provide information
about whether a child has been vaccinated for a vaccine preventable
condition if the chief executive is satisfied that:
-- a child attending the school or service has, or is suspected of having, a
contagious condition that is a vaccine preventable condition; and
-- another child attending the school or service may be at risk of
contracting the condition because of contact with the first child; and
-- the information about the second child is necessary to enable the
person in charge to act under clauses 165 and 166.
Clause 175 make it an offence for a person to disclose information obtained
as a result of the person performing a function under part 2, unless the
disclosure is expressly authorised under clauses 176 to 178, for example:
-- the information is disclosed in the performance of functions under the
Bill;
-- the information is disclosed to enable a person to help prevent or
minimise the transmission of a contagious condition;
-- with the written consent of the person about whom the information
relates; or
-- the disclosure is authorised under an Act or another law.
Section 62A of the Health Services Act 1991 is specifically excluded from
operating in relation to confidential information defined in clause 174.
Clause 179 provides a protection from liability (civilly, criminally or under
an administrative process) for a person who, acting honestly, gives
information or does something under part 2 (eg directing a parent to
remove and not send their child to school). The protection includes specific
protection from actions for defamation and breach of confidentiality or
privacy.
Clause 180 enables the chief executive (health) to give directions to a
person in charge of a school or child care service about the ways to
minimise the risk of contracting the condition at the school or service by
children and staff, if the chief executive is satisfied there is an outbreak of a
contagious condition at the school or service. Before issuing a written
direction, the chief executive must consult with the person in charge of the
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school or service and the relevant chief executive of the department
responsible for either the education sector or the child care sector.
Clause 181 enables the Minister for Health to issue a written notice to a
person in charge of a school or child care service to temporarily close the
school or service for a period of not more than 1 month. However, the
Minister may only issue such a notice if the Minister:
-- is satisfied that in order to effectively control an outbreak of a
contagious condition at a school or child care service, the school or
service must be temporarily closed; and
-- has consulted with the relevant Minister responsible for either the
education sector or the child care sector.
Clauses 182 allows a person ordered by the Minister to close a school or
child care service to appeal the Minister's decision to the Magistrates
Court. If the person is dissatisfied with the magistrate's decision, then the
person may appeal to the District Court but only on question of law (clause
183).
Clause 184 specifies that the licensee of a child care service must ensure
that the person in charge of the child care service complies with the
requirements under chapter 5, part 2.
Part 3 Child abuse and neglect
Clause 185 sets out principles to guide the administration of, and decisions
made under chapter 5, part 3. The principles are consistent with the child
protection framework in the Child Protection Act 1999 and are intended to
ensure the welfare and best interests of a child.
The principles specify that the views of a child are to be considered, and
the child is to be informed of all matters and decisions affecting him or her
in a manner appropriate to the child's age and level of comprehension.
However, the principles recognise that other aspects of a child's life need to
be taken into account when making decisions under the part. For example,
this may include recognising that the role of the family in a child's care is
important and that decisions made in relation to a child should take into
consideration the family's views.
Clause 186 clarifies how part 3 operates in relation to the Child Protection
Act 1999. The powers and requirements under part 3 are intended to
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complement the child protection framework in the Child Protection Act.
Consequently, if orders have been made for a child under the Child
Protection Act 1999 and under part 3, the order under the Child Protection
Act will prevail to the extent of any inconsistency. This recognises that the
Department of Child Safety has primary responsibility for child protection.
Clause 186 also signposts that the provisions which protect the identity of,
and provide civil and criminal immunity for, notifiers in the Child
Protection Act 1999 apply to professionals who are required to report to the
chief executive (child safety), reasonable suspicions of child harm.
Clause 187 sets out the circumstances under which a person in charge of
the health service facility at which a child is held under a care and
treatment order, has temporary custody of the child. As a consequence, the
person in charge has rights and responsibilities in relation to the child's day
to day care.
Clause 188 provides that a person in charge of a health service facility may
appoint a doctor as a designated medical officer, if the doctor has the
experience or expertise such as the expertise to identify and interpret signs
of harm in children.
Clause 189 clarifies that if the person in charge of the facility is a doctor, he
or she is deemed to be a designated medical officer.
Clause 190 states that a designated medical officer has the powers given
under part 3, but that these powers may be limited by the officer's
instrument of appointment.
Clauses 191 to 196 replicate the amendments made to the Health Act 1937
by the Child Safety Legislation Amendment Act (No.2) 2004.
Clause 191 requires a professional (a doctor or registered nurse as defined
in clause 158) to give a notice to the chief executive of the Department of
Child Safety immediately upon becoming aware or forming a reasonable
suspicion that a child has been, is being, or is likely to be harmed. In order
to form a reasonable suspicion about the harm or likely harm to a child,
clause 191(4) recognises that a nurse or doctor may need to seek further
information (eg by conferring with colleagues or other health
professionals, or checking the child's files).
It should be noted, however, that the obligation under this clause does not
apply if the nurse or doctor is aware that a mandatory report has already
been made under clause 191 about the harm or likely harm. For example, if
a registered nurse in a children's ward of a hospital was aware that the
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admitting doctor had given a notice to the chief executive (child safety) the
registered nurse would not also have to notify.
Clause 192 states that should the professional's initial notice under clause
191 be made orally (eg via the phone), a written notice must be made
within 7 days of the original notice. The follow-up notice is to include the
same details required in the first notice, and must be made regardless of
whether the professional's opinion about the harm has changed.
Clause 193 specifies that it is an offence for a professional, who forms a
reasonable suspicion about the harm or risk of harm to a child, to fail to
report under clause 191 or 192.
Clause 194 enables the chief executive (child safety) to request further
information that is needed to properly assess the harm or likely harm to a
child. The information must be provided unless the professional has a
reasonable excuse. However, a professional cannot be prosecuted for a
breach of the clause, unless the chief executive (child safety), when making
the request, informs the professional that it is an offence to fail to comply
with a request for further information.
Clause 195 provides protection from liability to any person who provides
information to a professional about harm to a child. This indemnity
extends to proceedings for defamation and to breaches of confidentiality.
The provisions are intended to protect persons such as a relative of the
child who provides information to a professional, or a professional who
discusses the harm to the child with another professional. As detailed
above, clause 186 clarifies that the protections under sections 22 and 186 of
the Child Protection Act 1999 apply to a professional who provides
information to the chief executive (child safety) under part 3.
Clause 196 provides that the identity of persons who give information to a
professional about harm or likely harm to a child, is protected. This
provision has been modelled on section 186 of the Child Protection Act
1999.
Clauses 197 to 204 set out the circumstances under which a designated
medical officer may order that a child who has been, or is at risk of being
harmed may be held at a health service facility for up to four days for
assessment and treatment.
Clause 197 enables a designated medical officer to order that a child be
held at a health service facility for a period not exceeding 48 hours, if the
designated medical officer reasonably suspects that the child has been
harmed, or is at risk of harm, and the child is likely to be taken from the
facility and suffer harm if immediate action is not taken. If a care and
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treatment order is made for a child, the designated medical officer must
immediately make a written record of the order (e.g. in the child's medical
record) and must explain the purpose and effect of the order to the child in
accordance with clause 461 and with the principles for part 3.
Clauses 198 and 199 require the designated medical officer to, as soon as
practicable, provided written notices to the person in charge of the facility
and the chief executive of child safety of the order. The notice must
include information about the child's identifying information, the harm that
has been or is likely to be caused, the parents' contact information and
details of any reports made to the chief executive of child safety under
clause 191.
Clause 200 requires the designated medical officer to notify the parents of a
child for whom an order has been made, as soon as practicable, about the
order. The designated medical officer must, if requested, give a copy of the
care and treatment order to a child's parent and must advise the parent that
they may elect to have the child examined by a doctor of the parent's
choosing. However, a designated medical officer need not comply with the
requirements under clause 200 if so doing may jeopardise an investigation
into a criminal offence or expose the child to harm.
Clause 201 enables a designated medical officer to extend a care and
treatment order for a further period not exceeding 48 hours (to make a total
order of not more than 96 hours). The designated medical officer may only
extend the order if the officer consults with another designated medical
officer who agrees that the order should be extended. The designated
medical officer seeking an extension of a care and treatment order, must
make a written record that includes the contact details of the designated
medical officer who was consulted about the extension and the reasons for
the extension.
The designated medical officer who considers an extension is necessary
need not be the same designated medical officer who made the order under
clause 197. As the child may have been moved, or the designated medical
officer who first made the order may no longer be the attending doctor, it
would be impractical to provide that only the initial officer may consider an
extension.
Clauses 202 and 203 provide that the designated medical officer who
extends a care and treatment order must notify the person in charge of the
facility and the chief executive (child safety) of the extension. The notice
must include the reasons for the extension and the contact details of the
concurring designated medical officer to enable verification if required.
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Clause 204 provides that the designated medical officer who extends a care
and treatment order must advise the child's parents about the extension,
including the reasons for the extension and the time the order expires.
However, the designated medical officer need not comply with the
requirement to notify the parents if so doing may jeopardise an
investigation into a criminal offence or expose the child to harm.
Clause 205 specifies that a designated medical office may authorise another
person to assist the officer to enforce a care and treatment order (eg a
security officer or another health professional). However the clause only
permits the use of force that is reasonable in the circumstances, to hold or
transfer the child.
Clause 206 clarifies that a care and treatment order starts when the order is
made and ends either 48 hours (or 96 hours if an extension has been made)
from the time the order is made or if the designated medical officer releases
the child earlier because the designated medical officer is satisfied the
reasons for the order no longer exist. This may occur where, for example,
an order is made because of a reasonable suspicion of harm based on
physical evidence that is later proven to have been caused by non-child
protection related causes (eg bruising caused by leukaemia).
If the designated medical officer releases the child early, the officer must
make a written record of the early release, which specifies the reasons for
and time of the release and into whose care the child was released.
Clause 207 provides that a further care and treatment order may not be
made for the same event or circumstances that led to the initial order. This
is to prevent consecutive orders from being issued. It is intended that 96
hours would be sufficient time to enable the Department of Child Safety to
decide whether to act under the Child Protection Act 1999. However this
does not prevent a further order being issued for a different event or
circumstances, for example, the child presents at a hospital at a later time
with a further injury.
Clause 208 provides that should the chief executive (child safety) require
further information in relation to a child held under an order, the chief
executive may request that information from the designated medical
officer, either orally or in writing. The designated medical officer must
provide the information requested. However, a designated medical officer
cannot be prosecuted for a breach of the clause, unless the chief executive
(child safety), when making the request, informs the designated medical
officer that it is an offence to fail to comply with a request for further
information. A person who provides information in response to a request
from the chief executive (child safety) is deemed not to have breached any
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duties of confidentiality or privacy and cannot be held to have breached any
code of professional ethics or departed from accepted standards of
professional condutct.
Clause 209 authorises that a child, who is held under a care and treatment
order, may be medically examined or treated at the facility or at another
facility to which the child is transferred. Parental consent is not required
for the examination or treatment and is deemed to have been given for the
purposes of deciding any liability. However the authority to examine or
treat a child is subject to the principles listed in clause 185 as well as the
rights the child has in relation to the examination or treatment contained in
the Charter of Rights for a Child in Care (Child Protection Act 1999,
schedule 1.) Furthermore, clause 209 specifies that only the examination
or treatment reasonable in the circumstances may be carried out.
Clause 210 provides that a designated medical officer may request
information from another doctor that is relevant to the health of the child
who is being held under an order. A doctor who provides information to a
designated medical officer in response to a request is deemed not to have
breached any duties of confidentiality or privacy and cannot be held to have
breached any code of professional ethics or departed from accepted
standards of professional conduct.
Clause 211 authorises a designated medical officer to transfer a child held
under a care and treatment order to another health service facility if it is
necessary to provide the child with appropriate medical examination or
treatment. For example, a small community facility may not have the
equipment or specialty units required to undertake necessary medical
examinations. The provision clarifies that the care and treatment order
continues to apply to the child while the child is at the other facility.
If a child is transferred, the designated medical officer must advise the
person in charge of the other facility of the transfer, in addition to notifying
the chief executive (child safety) and the child's parents of the transfer.
However, the designated medical officer need not give notice to the parents
if so doing may jeopardise an investigation into a criminal offence or
expose the child to harm.
Clause 212 provides that a parent may choose to have their child examined
by a doctor of their choice. If a parent so chooses, the designated medical
officer must advise the doctor chosen by the parents of the examination and
treatment undertaken for the child, and must allow the child to be examined
by the doctor at the facility.
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Clause 213 lists the offences that apply if a care and treatment order has
been made for a child, including that it is an offence to:
-- obstruct a designated medical officer or another person involved in
holding the child under a care and treatment order;
-- remove the child from the facility or during the transfer of the child
between facilities; or
-- keep a child that has been removed from a facility or during a transfer
between facilities.
A maximum penalty of 200 penalty units or 18 months imprisonment
applies if the clause is breached. The severity of the penalty reflects the
importance of protecting a child from identified harm.
Chapter 6 Health information
management
Part 1 Perinatal statistics
Clause 214 defines terms used in part 1, including baby, baby born alive,
baby not born alive, delivery, designated person and midwife.
Clause 215 requires the chief executive to establish and maintain a
Perinatal Statistics Collection (the collection), comprised of information
about the delivery of babies obtained under part 1. Clause 487 also
provides for information obtained about the delivery of a babies under the
Health Act 1937 to be incorporated into the register.
Clause 216 sets out the purpose of the register, for example, to collect
perinatal data to assist in monitoring and analysing obstetric and perinatal
patterns, to monitor perinatal mortality rates, to facilitate research into
perinatal care, to monitor congenital abnormalities and to assist in planning
of obstetric and perinatal health services;
Clause 217 imposes a statutory obligation on specified persons to notify the
chief executive about the delivery of a baby (eg the doctor or midwife who
attended the delivery).
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Clause 218 enables the chief executive to obtain further information in
relation to a notification made under clause 217 to ensure the accuracy,
completeness or integrity of the register. A person who provides
information in response to a request from the chief executive is deemed not
to have breached any duties of confidentiality or privacy and cannot be held
to have breached any code of professional ethics or departed from accepted
standards of professional conduct.
It is an offence to breach a requirement under either clause 217 or 218.
Clauses 219 to 228 set out requirements regarding the disclosure of
information in the perinatal statistics collection.
Clauses 220 makes it an offence for a person to disclose information
obtained as a result of the person performing a function under part 1, unless
the disclosure is expressly authorised under clauses 221 to 228, for
example if:
-- the information is disclosed in the performance of functions under the
Bill;
-- the information is disclosed in a form that does not identify any
person (eg aggregate data); or
-- the disclosure is authorised under an Act or another law.
Section 62A of the Health Services Act 1991 is specifically excluded from
operating in relation to information confidential information defined in
clause 219.
The duty of confidentiality under clause 220 applies to information
obtained about the delivery of a baby under part 1 and the Health Act 1937.
Part 2 Cancer notifications
Clause 229 defines terms used in part 2 including, for example, cancer,
notification about cancer, residential care facility.
Clause 230 requires the chief executive to establish and maintain a
Queensland Cancer Register (the register), comprised of information
obtained under this part. Clause 474 also provides for information
obtained under the cancer notification requirements of the Health Act 1937,
to be incorporated into the register.
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Clause 231 sets out the purpose of the register, for example, to collect data
to assist in monitoring and analysing the outcomes and patterns of cancer,
to monitor cancer mortality, increase public awareness of cancer and to
assist in the planning of services and strategies for the prevention and
management of cancer.
Clause 232 enables the chief executive to enter into an agreement with
another person to maintain the register on behalf of the chief executive (the
contractor) and imposes a duty on the chief executive to ensure the
contractor complies with the terms of the agreement. If the chief executive
enters into an agreement under this clause, the name of the contractor must
be prescribed under regulation. It should be noted that existing
arrangements whereby the Queensland Cancer Fund has been engaged as
the contractor responsible for the maintenance of the register will continue
(see clause 476).
Clause 233 clarifies that a requirement to make a cancer notification under
part 2 applies in relation to deceased persons (eg where a pathology
examination from an autopsy indicates the person was suffering from
cancer).
Clause 234 imposes a statutory obligation on directors of pathology
laboratories, persons in charge of a hospital or a residential care facility to
notify the chief executive about persons suffering from cancer.
Clause 235 enables the chief executive to require a notification required
under clause 234 to be given to the contractor instead of the chief
executive. The chief executive is required to monitor compliance with this
clause.
Clause 236 enables the chief executive, or the contractor on behalf of the
chief executive, to obtain further information in relation to a notification
made under clause 234 to ensure the accuracy, completeness or integrity of
the register. A person who provides information in response to a request
from the chief executive is deemed not to have breached any duties of
confidentiality or privacy and cannot be held to have breached any code of
professional ethics or departed from accepted standards of professional
conduct.
It is an offence to breach the requirements of clause 234, 235 or 236.
Clauses 237 to 250 set out requirements regarding the disclosure of
information in the Queensland cancer register.
Clause 238 makes it an offence for a person to disclose information
obtained as a result of the person performing a function under part 2, unless
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the disclosure is expressly authorised under clauses 239 to 247, for
example, if:
-- the information is disclosed in the performance of functions under the
Bill;
-- the information is disclosed in a form that does not identify any
person (eg aggregate data);
-- the disclosure is authorised under an Act or another law.
Section 62A of the Health Services Act 1991 is specifically excluded from
operating in relation to information confidential information defined in
clause 237.
Clause 248 makes it an offence for the contractor, or an employee of the
contractor, to disclose information obtained in relation to the cancer
register, unless the disclosure is expressly authorised under clause 249, for
example, if:
-- the information is disclosed in a form that could not identify a person
-- the information is disclosed to the chief executive in response to a
written request from the chief executive.
The duty of confidentiality under clauses 238 and 248 applies to
information obtained about persons with cancer notified under part 2 and
the Health Act 1937.
Clause 250 enables the chief executive to arrange for the transfer of
information in the Cancer Register for inclusion in the Pap Smear Register.
Such a transfer of information is necessary to ensure that the Pap Smear
Register is kept up to date in respect to notifications of cancer in order to
ensure notices under chapter 6, part 3 are not sent inappropriately to
women who may have recently been diagnosed with cancer or sent to the
address of a woman who may have recently died of cancer.
Part 3 Pap smear register
Clause 251 defines terms used in part 3 including, for example, clinical
information, identifying information and registered screening history.
Clinical information is also defined under clause 251 to mean information
about a woman appearing in the register as part of her registered screening
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history, including the dates and results of the Pap smear tests and histology
tests for the woman, and other information prescribed under a regulation.
Identifying information is defined under clause 251 to mean information
about a woman appearing in the register as part of her registered screening
history, including the women's full name or names, date of birth; address
for correspondence; and other information prescribed under a regulation.
Registered screening history, for a woman, means her identifying and
clinical information, as appearing in the register.
Clause 252 states that the part does not apply to a procedure if the woman's
usual place of residence is outside of Queensland.
Clause 253 requires the chief executive to establish and maintain the Pap
Smear Register (the register) to record identifying and clinical information
about women.
Clause 254 sets out the purpose of the register, for example, to provide a
mechanism for assisting women to determine when they need a Pap smear
or a retest, to provide information to treating physicians to assist in
management of Pap smear results, to assist in quality assurance in
pathology laboratories that process Pap smear tests, to monitor changes in
disease trends, to study the effectiveness of screening and treatment
programs, and to increase public awareness and participation.
Clause 255 provides for a women's clinical and identifying information to
be included in the register, unless the women asks to have her information
removed from the register or her identifying information changed.
Clauses 256 to 259 outline the duties of persons involved in obtaining and
testing Pap smears and histological samples.
Clause 256 states that a provider must be satisfied, on reasonable grounds
that a woman has been informed about:
-- the existence and purposes of the register;
-- the identifying and clinical information about the woman that may be
recorded in the register; and
-- that a woman may elect not to have her information automatically
included in the register.
If a woman tells the provider that she does not want her information to be
automatically included in the register, under clause 257, the provider must
make a notation about the woman's wishes and ensure that each request
made by the provider for a Pap smear test or histology test includes a
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notation that the woman's information must not be given to the chief
executive.
Under clause 258, if a provider's records indicate that a woman has
previously elected not to have her information automatically included in
the register then the provider must ask the woman whether she wants to
reconsider her decision. If a woman decides she wants her information to
be included in the register, the provider must make a notation of this
decision and provide the women's information to the chief executive. If a
woman decides that she still does not want her information to be
automatically included in the register, the provider must ensure that each
request for a Pap smear or histology test includes a notation that the
woman's information must not be given to the chief executive.
Clause 259 sets out the circumstances under which the director of a
pathology laboratory receiving a request to test a Pap smear or histological
sample taken from a woman must give her information to the chief
executive. However, where the request for the test includes a notation that
the woman's information must not be given to the chief executive, the
director must not give the information to the chief executive.
Clauses 260 to 265 set out the duties of the chief executive in relation to the
Pap Smear Register.
Clause 260 states that if the chief executive receives clinical and
identifying information under this part for a woman who has no registered
screening history, the chief executive must ensure the information is
included in the register. The chief executive must also send the woman a
notice stating:
-- that the information has been included in the register; and
-- that her registered screening history may be removed from the
register; and
-- that she may have her identifying information changed if she thinks it
is incorrect; and
-- how she may have her information removed or changed.
Clause 261 enables the chief executive to send reminder notices to women,
for example, where a woman's registered screening history indicates she
may be overdue for her next Pap smear, or where it is necessary to repeat a
Pap smear because the previous Pap smear is unsatisfactory and cannot be
assessed.
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Clause 262 enables the chief executive to send a notice about an abnormal
Pap smear to a woman's health practitioner or another health practitioner,
as may be appropriate, to facilitate the woman receiving appropriate
medical investigation and intervention.
Clause 263 requires the chief executive to remove a woman's registered
screening history from the register if a woman requests this in writing,
within 6 weeks of receiving such a request. The six week period is to allow
the woman time to reconsider her decision. In circumstances where a
woman indicates that her information was included in the register in error
the chief executive must remove the information from the register as soon
as is practicable after receiving her request.
The chief executive is obliged under clause 264 to change a woman's
identifying information as soon as is practicable after receiving a request
from her advising that she considers the information is incorrect.
Clause 265 enables the chief executive to obtain further information from
specified persons about a woman's registered screening history or clinical
management to ensure the accuracy, completeness or integrity of the
register. The chief executive must issue a written notice that specifies what
information is to be provided, the time period within which the information
is to be provided and that it is an offence to fail to comply with the notice.
A person who provides information in response to a request from the chief
executive is deemed not to have breached any duties of confidentiality or
privacy and cannot be held to have breached any code of professional
ethics or departed from accepted standards of professional conduct.
Clauses 266 to 276 set out matters in relation to the confidentiality of, and
authorities for a person to access, a woman's registered screening history.
Clause 266 makes it an offence for a person to disclose information
obtained as a result of the person performing a function under part 3, unless
the disclosure is expressly authorised under a disclosure section in part 3,
for example:
-- in response to a written request from a woman for her registered
screening history to give the woman a copy of her history;
-- if the woman gives her written consent for the disclosure;
-- the disclosure is made in a form which the person reasonably believes
does not identify any woman; or
-- if the disclosure is authorised under an Act or other law.
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Disclosure sections under part 3 are defined as including clauses 262, 265,
272, 273, 277, 278)
Clause 272 permits the chief executive to give a woman's registered
screening history to a health practitioner if the chief executive is satisfied
on reasonable grounds that the woman is a patient of the practitioner and
that the information is needed, for example, to make a decision about the
woman's clinical management.
Clause 273 permits the director of a pathology laboratory to nominate a
person or persons employed at the laboratory to whom a woman's
registered screening history may be given for the laboratory.
In addition, the clause sets out the circumstances under which the chief
executive may give a pathology laboratory a woman's registered screening
history. In giving this information, the chief executive must ensure that the
laboratory concerned is either:
-- interpreting the results of a pap smear test or histology test for the
woman and requires the information in order to make
recommendations about clinical management for the woman; or
-- the pathology laboratory has tested a Pap smear or histological sample
for the woman and the director or nominated person is assessing the
performance of the laboratory for quality assurance purposes.
The chief executive may not disclose a woman's address under either
clause 272 or 273. Nor may the chief executive disclose information
identifying a health practitioner or a pathology laboratory without the
written consent of the health practitioner or the director of the pathology
laboratory.
Clause 274 specifies that it is an offence for any person to seek or to obtain
information from the Pap Smear Register, the chief executive or another
person involved in keeping of the register unless they are authorised to do
so under part 3.
Clause 275 sets out the obligations of health practitioners, directors and
nominated persons of pathology laboratories to keep registered screening
histories confidential when they access information under sections 272 and
273. However, the clause does permit a health practitioner to disclose a
woman's registered screening history to the woman or another health
practitioner (eg to discuss the woman's history for the clinical management
of the woman). Similarly, a director of a pathology laboratory or a
nominated person at a laboratory may disclose a woman's registered
screening history to specified persons (including the woman) if the director
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is satisfied that it is necessary to do so (eg to the medical practitioner who
is involved in the clinical management of the woman).
Clause 276 imposes a statutory obligation on the chief executive to
establish processes to monitor health practitioners' and pathology
laboratories' access to information held on the Pap Smear Register and
their compliance with their duties of confidentiality under part 3.
Clause 277 enables the chief executive to enter into an agreement with a
contractor for the purpose of sending out letters welcoming women to the
Pap Smear Register, reminder notices and recall letters to women.
Accordingly, the chief executive may disclose confidential information to
the contractor to the extent that it is necessary for the contractor to perform
the functions under the agreement (ie a woman's name and address). The
contractor is, however, prohibited from disclosing the information to
another person or to use the information other than to send out the notices
in accordance with the agreement.
Clause 278 permits the chief executive to arrange for the transfer of
confidential information from the Pap Smear Register to the Cancer
Register. The provision clarifies that a person performing such a transfer
does not commit an offence against the duty of confidentiality for the Pap
Smear Register. The intent of this provision is to permit the transfer of
information about diagnosed occurrences of cervical cancer from the Pap
Smear Register to the Cancer Register to maximise the completeness of the
information in the Cancer Register.
Clause 279 enables the chief executive to designate (via gazette notice)
certain persons who perform procedures to obtain Pap smears as health
practitioners for part 3. For example, in remote areas where there is limited
access to medical practitioners, enrolled nurses and Aboriginal health
workers may also perform Pap smears.
Part 4 Research
Clause 280 defines terms used in chapter 6 part 4. Significantly, research is
defined for the purposes of part 4 to means systematic investigation for
adding to knowledge about human health and well-being, including a
biomedical study, a clinical and applied study, an epidemiological study, an
evaluation and planning study or a monitoring and surveillance study.
Clause 281 clarifies that the chief executive may give health information
held by the department under chapter 6, part 4 despite any confidentiality
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provision under the Bill or another law that deals with confidentiality (eg
section 62A of the Health Services Act 1991). Health information held by
the department is defined in the dictionary to be information about a person
who has received or is receiving a public sector health service in
Queensland, or information about a person's health, or the provision of a
health service to the person, obtained by the department under this Act or
another Act.
Clause 282 sets out the application process whereby a person may apply to
the chief executive for health information held by the department for
research being conducted by the person or by an entity of which the person
is a member.
Clause 283 enables the chief executive to ask for further information to
support an application under clause 282. If an applicant fails to comply
with a notice for further information, the applicant is taken to have
withdrawn their application.
Clause 284 requires the chief executive to consider an application for
health information held by the department as soon as practicable and
provide the applicant with a written notice setting out the chief executive's
decision. In deciding an application, the chief executive must be satisfied
that the provision of health information held by the department is in the
public interest, having regard to the opportunities the research will provide
for increased knowledge and improved health outcomes and the privacy of
individuals who supply health information to health providers. In addition,
if an applicant asks for information identifying a person, the chief
executive may grant the application only if satisfied the identification of the
person is necessary for the relevant research.
The chief executive must provide an applicant with a written notice
outlining his or her decision about an application. This notice must also
include the reasons for any conditions imposed by the chief executive
under clause 285.
Clause 285 sets out the minimum requirements for the chief executive's
written notice to an approved applicant for health information held by the
department, including:
-- the name of the person or entity conducting the research;
-- the names of all persons who may be given the information for the
research;
-- a description of the research, including the purpose and methodology
of the research;
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-- the type of information to be given and if the information is to be
given at intervals, details of the intervals;
-- any conditions under which the application was granted;
-- the period for which the application has been granted.
It is an offence under clause 285(2) to fail to comply with a condition,
unless the applicant has a reasonable excuse.
Clause 286 requires an approved applicant to notify the chief executive of
any changes to the names of the persons listed in an approved application.
It is an offence to fail to comply with this requirement, which must be
made as soon as practicable after the change has occurred.
Clause 287 specifies that the chief executive may rescind a decision to
provide health information held by the department to an approved
applicant, if the applicant has contravened part 4, for example by failing to
comply with a condition imposed under clause 285.
Clause 288 requires the chief executive to establish a publicly accessible
register of approved applicants, to be known as the Research Register,
which details:
-- the type of information to be given for the research;
-- a description of the research;
-- the name of the person or entity conducting the research;
-- the period for which the application has been granted.
The chief executive must allow a person to access the register but can
charge a reasonable fee for copying the register (clause 289).
Clause 290 specifies that a person given information under part 4 must not
use the information for a purpose inconsistent with the research for which
the information was provided. It is an offence to fail to comply with this
requirement.
Clause 291 makes it an offence for a person to disclose information given
to a person under part 4, unless the disclosure is expressly authorised under
the clause. For example, if the disclosure is:
-- to a person named in a notice under section 284(4) or 286 as a person
who may be given the information for the research; or
-- made with the written consent of the person to whom the information
relates; or
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-- made in a form the person reasonably believes does not identify any
person.
Clause 292 enables the Minister to declare, by gazette notice, that health
information given to a person under part 4, division 2 for research is
protected information, if the Minister reasonably believes it is in the public
interest to do so. Such a declaration means that:
-- the information cannot be accessed under any order, whether of a
judicial or administrative nature, other than an order for the purpose of
this Bill;
-- the information is not admissible in any proceeding, other than a
proceeding under this Bill;
-- a person can not be compelled to produce the information, or to give
evidence relating to the information, in any proceeding, other than a
proceeding under this Bill.
However, these restrictions do not apply if the information is admitted,
produced or given with the consent of the person to whom the information
relates.
Chapter 7 Public health inquiries
Clause 293 defines terms for the purposes of chapter 7, including
"chairperson", "panel" and "witness requirement notice".
Clause 294 enables the Minister to establish a panel of inquiry to inquire
into a matter the Minister considers is a serious public health matter. A
serious public health matter may include a major outbreak of an infectious
disease. The clause also clarifies that the Minister may establish a panel of
inquiry regardless of whether a panel of inquiry has previously considered
the matter.
Clause 295 establishes the role of the panel and requires a written report to
be provided to the Minister about the panel's findings. The Minister must
table a copy of the report in the Legislative Assembly within 14 sitting days
after receiving the report. If the panel gives the Minister a separate report of
issues the panel considers should not be made public, the Minister need not
table the separate report in the Legislative Assembly.
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Clause 296 establishes the conditions of appointment for a member of a
panel of inquiry.
Clause 297 provides that the chief executive must consult with the
chairperson of the panel to arrange for the provision of services, and
financial matters relevant, to the panel.
Clause 298 establishes the procedure for the conduct of an inquiry, for
example the panel of inquiry must observe natural justice and act as
quickly, and with as little formality and technicality, as is consistent with a
fair and proper consideration of the issues.
Clause 299 provides that the chairperson of the panel of inquiry must give
at least 14 days notice of the time and place of the inquiry to any person the
chairperson reasonably believes should appear at the inquiry.
Clause 300 provides that the inquiry must be held in public unless the panel
is satisfied that it is proper to hold the panel in private given the
circumstances of a case.
Clause 301 gives specified persons (eg members of the panel, lawyers and
witnesses) involved in the panel of inquiry immunities and protections as if
they were involved in a Supreme Court proceeding.
Clause 302 requires that a panel of inquiry must keep a record of its
proceedings.
Clause 303 requires that the panel of inquiry must give anyone directly
concerned the opportunity of making a defence to all claims made against
the person.
Clause 304 provides that the panel of inquiry may act in certain ways and
that a member of the panel may administer an oath to a person appearing as
a witness before the inquiry.
Clause 305 establishes that a person who is to appear as a witness before
the panel is to be given certain notice to attend. The witness is entitled to
witness fees.
Clause 306 provides for the inspection, copying, photographing or taking
of extracts from documents or other things presented to the panel of
inquiry.
Clause 307 outlines how the panel of inquiry may start or continue, unless
a court or tribunal with the necessary jurisdiction orders otherwise.
Clause 308 establishes a number of offences for non-compliance by
witnesses. Self-incrimination is not a reasonable excuse for refusing to give
evidence. While clause 308(3) removes self-incrimination as a reasonable
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excuse for a person to fail to answer a question or produce a document (or
thing), subclause 308(4) provides that specified evidence (ie primary
evidence and derived evidence) given by a witness is not admissible in a
civil or criminal proceeding. Further, any information or thing obtained as a
direct or indirect result of evidence is also not admissible. Subclause
308(5) also clarifies that primary or derived evidence is not prevented from
being admitted in evidence in criminal proceedings about the falsity or
misleading nature of the primary evidence.
Clause 309 specifies that it is an offence for a person to state anything to a
panel of inquiry that the person knows is false or misleading in a material
particular.
Clause 310 makes it an offence for a person to give the panel of inquiry, a
document containing information the person knows is false or misleading
in a material particular. However there is an exception where the person
giving the document tells the panel to the best of their ability how the
document is false or misleading, and, if the person has, or can reasonably
get the correct information, gives the correct information to the panel.
Clause 311 sets out when the conduct of a person is taken to be contempt of
the panel of inquiry.
Clause 312 provides that, subject to clause 308, if the panel of inquiry
considers material before it discloses an offence, it may report the offence
and make available relevant material in the panel's possession to the
relevant authorities.
Clause 313 specifies that a panel of inquiry is not affected by a change in
membership, except if it consists of 1 member. If a panel is comprised of 1
member, the panel would need to be re-established under clause 294.
Chapter 8 - Public health emergencies
Part 1 Preliminary
Clause 314 states that the purpose of chapter 8 is to declare and respond to
public health emergencies, and emergency notifiable conditions happening
during a declared public health emergency.
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Clause 315 defines terms for chapter 8 including, for example, emergency
notifiable condition and public health emergency. `Emergency notifiable
condition' is defined as an infectious medical condition that is not
prescribed as a controlled notifiable condition.
Public health emergency is defined as meaning an event or a series of
events that has contributed to, or may contribute to, serious adverse effects
on health of persons in Queensland. The effect of this definition is to limit
the circumstances for which an emergency can be declared and therefore
the circumstances in which the powers under this chapter may be exercised.
Clause 316 provides that this Bill does not interfere with emergency
provisions under other Acts, and vice versa.
Clause 317 specifically provides that this Bill does not limit the Disaster
Management Act 2003 or the chemical, biological and radiological
emergency provisions of the Public Safety Preservation Act 1986.
Clause 318 provides that the powers under this chapter are in addition to
and do not limit powers under this Bill or another Act.
Part 2 Declaring a public health
emergency
Clause 319 allows the Minister to declare a public health emergency by
signed written order. To ensure the emergency powers under chapter 8 may
only be used for appropriate purposes, the Minister may only declare a
public health emergency if the Minister is satisfied it is necessary to
exercise the powers under this chapter to prevent or minimise the serious
adverse effects on human health from a public heath emergency. The
Minister must also, if practicable, consult with the chief executive and chief
health officer before declaring a public health emergency.
Clause 320 details what a public health emergency order must state,
including the nature of the public health emergency, the area to which the
order relates, the duration of the order, and any conditions relating to the
conduct of the declared public health emergency.
Clause 321 provides that the Minister must, as soon as practicable, publish
and publicise a public health emergency order.
Clause 322 sets out matters in relation to the commencement and duration
of a declared public health emergency. A declared public health emergency
starts from the time the Minister makes a declaration under clause 319 and
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ends 7 days after it is declared, unless the Minister sooner ends it, or a
regulation under clause 323 extends the declared emergency. The initial
regulation may extend the declared emergency by up to 14 days. However,
subsequent regulations may only extend the declared emergency by up to 7
days.
Clause 324 states the Minister must end a declared emergency if the
Minister is satisfied it is no longer necessary to exercise powers under
chapter 8 to respond to the public health emergency. This action will cause
the expiry of a regulation extending the declared emergency.
Clause 325 requires the Minister to publish and publicise the end of the
declared emergency.
Clause 326 allows the Minister to amend a public health emergency order
and requires the Minister to publish and publicise the amendment in the
same way as the original order.
Part 3 Emergency notifiable conditions
Clauses 327 to 331 set out the circumstances under which the Minister may
declare an emergency notifiable condition to be a controlled notifiable
condition (i.e. a controlled notifiable conditions declaration).
By clause 329 if the Minister makes a controlled notifiable condition
declaration under clause 327, the declaration must be published by gazette
notice and include information about:
-- the general nature of the emergency notifiable condition including, for
example, signs and symptoms that may be associated with the
condition; and
-- the period for which the emergency notifiable condition is declared to
be a controlled notifiable condition.
A controlled notifiable conditions declaration takes effect from the time it
is declared by the Minister under clause 327 and may have effect for a
maximum period of 28 days (clause 330).
During this period, mechanisms provided for under chapter 3 to protect the
public from notifiable conditions may be used to respond to a public health
emergency involving an emergency infection condition. Clause 328 also
clarifies that the duration of a controlled notifiable conditions declaration
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continues to have effect, even if the declared public health emergency ends
at an earlier time.
Clause 331 allows the Minister to amend a controlled notifiable conditions
declaration. The Minister must publish and publicise the amendment in the
same way as the original declaration.
Part 4 Role of chief executive
Clause 332 charges the chief executive with responsibility for overall
management and control of the response to a declared public health
emergency. The chief executive is empowered to give directions about the
circumstances in which the emergency powers under this chapter may be
used.
Clause 332 deems the chief executive to be an emergency officer (general)
or, if the chief executive is a doctor, an emergency officer (medical).
Part 5 Appointment of emergency
officers
Clauses 333 to 337 enable the chief executive to appoint appropriately
qualified persons as emergency officers. To avoid delay in responding to an
emergency, appointments may be made before an emergency is declared.
However, as provided for by clause 339, an emergency officer may only
exercise the powers under this chapter for responding to a declared public
health emergency. In addition, under clause 337, the chief executive may
appoint an emergency officer subject to conditions specified in the officer's
instrument of appointment.
Clause 338 requires the chief executive to give to a person appointed as an
emergency officer a copy of the person's appointment.
Clause 339 clarifies what powers may be exercised by an emergency
officer (general) and an emergency officer (medical) for a declared public
health emergency, subject to the direction of the chief executive.
Clause 340 requires the chief executive to provide each emergency officer
with an identity card. It is an offence for an emergency officer to fail to
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return the emergency officer's identity card within 21 days of ceasing to be
an emergency officer (clause 341).
Clause 342 provides that an emergency officer must, if practicable, identify
himself or herself to a person in relation to whom the emergency officer
exercises a power.
Part 6 Powers of emergency officers
Clause 343 allows an emergency officer to enter a place for responding to a
public health emergency if the emergency officer reasonably believes it is
urgent to enter the place to save human life, prevent or minimise serious
adverse effects on human health or relieve suffering or distress. Reasonable
force may be used.
Clause 344 states the procedure for entry under clause 343. However, an
emergency officer need not comply with the stated procedure if the
emergency officer believes on reasonable grounds that immediate entry is
required to effectively respond to the declared emergency.
Clause 345 specifies the powers available to respond to the declared
emergency. These include the power to require a person to; go to or stay in
a place; not enter or not remain in a place; answer questions and provide
information; regulate their movement into, out of or around the emergency
area. They also allow emergency officers to take action in relation to
animals, substances, property or things. These powers may only be used if
they are necessary to respond to the emergency. Sub-clause 345(2)
provides that the power to demolish structures or destroy animals can only
be exercised with the approval of the chief executive.
Clause 346 makes it an offence not to comply with a requirement or
direction made by an emergency officer under clause 345(10(a)-- (h) and
(4), unless the person has a reasonable excuse. In order to ensure the
provision of information necessary to respond to the declared emergency,
subclause (2) states it is not an excuse for non-compliance with a request
that complying with the requirement may tend to incriminate the person.
This breaches the fundamental common law right to silence. Accordingly,
subclause (3) states that the information may not be used in proceedings
against the person (other than in a proceeding in which the falsity or
misleading nature of the information provided is relevant).
Clause 347 provides an emergency officer with a range of general powers
following entry to a place to respond to a declared public health emergency.
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These include powers to search the place, inspect, take photographs and
samples, and require reasonable help to exercise the emergency officer's
powers.
Clause 348 makes it an offence for a person not to give reasonable help to
an emergency officer when requested under clauses 345(1)(q) or 347(2)(f)
unless the person has a reasonable excuse.
Part 7 Extra powers of emergency
officers (medical)
Clause 349 allows an emergency officer (medical) to order the detention of
a person. This power may be exercised only if the detention is necessary to
respond to the public health emergency and the officer reasonably suspects
the person has or may have a serious disease or illness which, either of
itself or in conjunction with the person's likely behaviour, constitutes an
immediate risk to public health.
The emergency officer (medical) must make a written order for the
detention of a person, which sets out specified information such as a
description of the serious disease or illness the person has or may have and
the place where the person is to be detained.
Clause 350 states that a detention order ends 96 hours after it was given or
at an earlier time stated in the order.
Clause 351 provides that a detention order may be enforced by an
emergency officer (medical) or person nominated by the emergency officer
(medical), with reasonable help and force. The emergency officer
(medical) or nominated person must give the person to be detained a copy
of the order or, if this is not practicable, explain the purpose and effect of
the order. It is an offence, carrying a maximum penalty of 200 penalty
units, to fail to comply with a detention order.
Clause 352 allows an emergency officer (medical) to establish an isolation
area to accommodate persons detained under a detention order. The
emergency officer (medical) may take the action necessary to respond to
the declared public health emergency (eg by taking control of a building).
Clause 353 provides that a person who is subject to a detention order must
be given an opportunity to voluntarily comply with the order.
Clause 354 requires the emergency officer (medical) to request the detained
person be medically examined, unless a medical examination would yield
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no useful information in the circumstances (for example, there is no
recognised diagnostic procedure). The emergency officer (medical) must
explain the reasons for the examination and tell the person that the person
may refuse the examination. The person must also be given the opportunity
to be examined by a doctor of their own choosing.
Clause 355 specifies that a person must be released from detention if the
person is no longer an immediate risk to public health, in the opinion of the
emergency officer (medical), or joint opinion of a doctor chosen by the
person and the emergency officer (medical).
Clause 356 allows the chief executive or an emergency officer (medical) to
apply to a magistrate to extend a detention order. An application may only
be made if an emergency officer (medical) is satisfied that continued
detention is necessary, having regard to the criteria for detention under
clause 349. The detained person must be given a copy of the application. To
minimise the risk of transmission of the condition the detained person is
suspected of having, the detained person may not attend the hearing.
However, the detained person may nominate a representative to appear on
his or her behalf.
Clause 357 allows the magistrate to hear the application and to extend, or
refuse to extend, the detention order. The magistrate may extend the
detention order only if satisfied it is reasonably necessary to effectively
respond to the public health emergency. The detention order is deemed to
continue until the magistrate decides the application.
Clause 358 provides that the chief executive or an emergency officer
(medical) may appeal to the District Court against the refusal of a
magistrate to extend the detention order. The detention order is deemed to
continue until the District Court decides the application.
Clause 359 clarifies that clauses 360 to 362 apply only in relation to a
person who is detained under this part.
Clause 360 states the obligations of an emergency officer (medical) in
relation to a person detained under clause 349. The emergency officer
(medical) must, as soon as is practicable:
-- inform the person about the person's right to apply to a magistrate for
an order ending the person's detention, the person's right to consult a
lawyer, and the duration of the detention order;
-- inform the person's next of kin about the person's detention;
-- give the detained person an opportunity to contact persons with whom
the detained person wishes to communicate.
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Clause 361 allows a detained person's lawyer, or other nominated person,
to apply to a magistrate for an order ending the person's detention. The
magistrate may order an end to the detention only if satisfied the person's
continued detention is not reasonably necessary to effectively respond to
the declared public health emergency. The detained person is not entitled to
attend the hearing for the application.
Clause 362 provides for the chief executive, an emergency officer
(medical) or a person detained under clause 349 to appeal to the District
Court against a decision of the magistrate on an application for an order to
end the person's detention. The detention order is deemed to continue until
the District Court decides the application.
Part 8 General enforcement matters
Clause 363 makes it an offence to make false or misleading statements to
an emergency officer.
Clause 364 makes it an offence to give an emergency officer a document,
which contains false or misleading information, unless the person tells the
emergency officer about the misleading information and, where possible,
gives the correct information.
Clause 365 makes it an offence for a person to obstruct an emergency
officer, unless the person has a reasonable excuse.
Part 9 Compensation
Clause 366 provides an entitlement to compensation for loss or damage
suffered because of an exercise, or purported exercise, of an emergency
power.
Clause 367 provides that compensation is not payable to the extent that the
person is otherwise insured for the loss or damage, or the person
contributed to the loss or damage. Nor is compensation payable for loss or
damage that would have occurred irrespective of the exercise of the
emergency powers.
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Clause 368 states that a person may apply to the chief executive for
compensation within 90 days of suffering the loss or damage. However, the
chief executive is provided with the discretion to accept late applications.
Clause 369 provides for the chief executive to give an applicant for
compensation a written notice requiring further information within a
specified period to decide the application. If the application does not
provide the further information within the period specified in the notice,
the application is deemed to lapse.
Clause 370 provides that the chief executive must consider an application
that meets the requirements of this part.
Clause 371 requires the chief executive to give an applicant a written notice
about the chief executive's decision, including reasons for the decision.
Clause 372 provides a right of appeal to a Magistrates Court against the
chief executive's decision about compensation.
Clause 373 establishes in which Magistrates Court an appeal can be started
and when the notice of appeal under the Uniform Civil Procedure Rules
1999 must be filed. The court may, at any time, extend the time for filing
the notice of appeal.
Clause 374 states that in hearing the appeal, the court is not bound by the
rules of evidence.
Clause 375 states that an appeal against a Magistrates Court decision may
be made to the District court, but only on a question of law.
Chapter 9 - Monitoring And Enforcement
Part 1 Authorised persons
Clause 376 provides that an authorised person has the powers given under
the Bill. In exercising his or her powers, an authorised person is subject to
the directions of the relevant administering executive (i.e. chief executive
of health or, for a local government, the chief executive officer).
Clause 377 empowers the chief executive or, for a local government, the
chief executive officer (together referred to as `administering executives')
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to appoint authorised persons. To allow smaller local governments to
"share" an authorised person, provision is made for the chief executive
officers of two or more local governments to appoint the same person.
An authorised person may be appointed for the Bill generally or for
specific provisions, or to administer and enforce the Bill only in respect of
particular public health risks.
Clause 378 states the administering executive may appoint a person, as an
authorised person only if satisfied the person is appropriately qualified.
Provision is made to prescribe specific competencies in regulation.
Clause 379 provides that the administering executive may limit the powers
of an authorised person.
Clause 380 requires the administering executive to issue an identity card to
each authorised person. An authorised person must produce or display the
authorised person's identity card if exercising a power in relation to a
person. However, if it is not practicable in the circumstances to do so
before exercising the power, the identification must be produced as soon as
is practicable (clause 381).
Clause 382 states the ways in which an authorised person may cease to
hold office. The methods detailed are not exhaustive.
Clause 383 states an authorised person may resign by written notice to the
administering executive.
Clause 384 requires an authorised person to return the authorised person's
identity card within 21 days of ceasing to be an authorised person.
Part 2 Powers of authorised persons
Clause 385 states how an authorised person may enter a place, including
entry under clauses 386 to 390. Importantly, subclause (3) prohibits entry
to a dwelling without the occupier's consent, an enforcement order or
warrant.
Clause 386 empowers an authorised person to enter a place to ascertain if
there is a public health risk at a place. The authorised person may enter the
place only if the authorised person reasonably believes there may be a
public health risk at a place, for example, following a credible complaint by
an occupier of an adjacent property. Entry to any building or structure,
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whether or not it is a dwelling, is prohibited. This power is subject to
procedural requirements (see explanatory note for clause 392).
Clause 387 empowers an authorised person to enter a place at reasonable
times to check compliance with a public health order. Entry to any building
or structure, whether or not it is a dwelling, is prohibited. This power is
subject to procedural requirements (see explanatory note for clause 392).
Clause 388 empowers a local government or the chief executive, by its
employees or agents, to enter a place to take the steps required under a
public health order, which the recipient of the order has failed to take.
Entry to any building or structure, whether or not it is a dwelling, is
prohibited. This power is subject to procedural requirements (see
explanatory note for clause 393).
Clause 389 provides a power of entry for authorised persons undertaking
approved inspection programs (see explanatory notes for clauses 427 to
429). Entry to any building or structure, whether or not it is a dwelling, is
prohibited. This power is subject to procedural requirements (see
explanatory note for clause 392).
Clause 390 provides a power of entry to health care facilities. The power is
required to check compliance with obligations about infection control
under chapter 4 (Infection control for health care facilities). The authorised
person must give the person in charge of the health care facility 24 hours
notice of the entry. This power does not allow entry to a part of the facility
where a person resides, or where a person is undergoing a health procedure
or is consulting a health practitioner.
Clause 391 details the procedure for entry with consent under clause
385(1)(a). The authorised person must explain the purpose of entry and that
the occupier may refuse consent. The authorised person may ask the
occupier to sign a written acknowledgement of the occupier's consent,
although this is not a mandatory requirement - the authorised person may
choose not to seek the signed acknowledgement. However, in a proceeding
against the occupier, if the signed acknowledgement is not produced, the
person relying on the lawfulness of the entry must prove the occupier gave
consent to enter.
Clause 392 details the procedure for entry under clauses 386 (Power to
enter place to ascertain if public health risk), 387 (Power to enter place to
check compliance with public health order) or 389 (Power to enter place
under approved inspection program). Before entering a place under any of
these clauses, the authorised person must first make a reasonable attempt to
locate an occupier and obtain the occupier's consent to entry (in
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accordance with the procedure in clause 391). If the authorised person
locates the occupier and the occupier refuses consent, the authorised person
must not enter the place. If the authorised person is unable to locate the
occupier after making a reasonable attempt to do so, the authorised person
may enter the place. Following entry under clauses 386, 387 or 389, the
authorised person must leave a notice stating the date, time and purpose of
entry.
An authorised person entering a place under clauses 386, 387 or 389 must
cause as little inconvenience and do as little damage as is practicable in the
circumstances.
Clause 393 details the procedure for entry under clause 388 (Power to enter
place to take steps if public health order not complied with). The issuing
authority must give the occupier reasonable notice of the entry to take the
steps required under the public health order. The notice must be in writing.
Before entering a place under any of these clauses, the authorised person
must first make reasonable attempt to locate an occupier and obtain the
occupier's consent to entry (in accordance with the procedure in clause
391). If the occupier does not consent, the clause clarifies that the
authorised person may only enter the place under an enforcement order or a
warrant. If the authorised person is unable to locate the occupier after
making a reasonable attempt to do so, the authorised person may enter the
place. Following entry under clause 388, the authorised person must leave a
notice stating the date, time and purpose of entry.
An authorised person entering a place under clause 388 must cause as little
inconvenience and do as little damage as is practicable in the
circumstances.
Clause 394 allows an authorised person to apply to a magistrate for a
warrant for a place.
Clause 395 allows a magistrate to issue a warrant for a place if satisfied
there are reasonable grounds for suspecting there is or will be at the place
evidence of an offence against the Bill, or there is a public health risk at the
place. The matters to be stated in the warrant are listed, including that a
stated authorised person may use necessary and reasonable help and force
to enter the place and exercise the authorised person's powers under
chapter 9.
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If the warrant is for a public health risk -
-- the warrant must state whether the authorised person may exercise the
powers under chapter 9, part 2, division 6. That is, whether the
authorised person can take the steps necessary to reduce the risk to
public health from the public health risk at the place (see explanatory
notes for clause 405). This allows for expedient action where
necessary to control a serious and immediate risk to public health, for
example where a public health order would not result in the necessary
steps being taken;
-- the warrant must also state who is to pay the costs of taking the steps
to reduce the risk to public health from the public health risk;
-- the warrant may state that an authorised person can re-enter the place
to check compliance with a public health order issued following the
initial entry under the warrant. If a warrant authorises re-entry, the
warrant expires 7 days after the expiration of the period stated in the
public health order for completing the steps stated in the order.
Clause 396 provides for application for a warrant by electronic means in
urgent or special circumstances.
Clause 397 provides that a warrant is not invalidated by a non-significant
defect.
Clause 398 details the procedure for entry under a warrant. The authorised
person must attempt to locate the occupier, identify him or herself, give the
occupier a copy of the warrant and give the person an opportunity to allow
the authorised person immediate entry without using force. However, the
authorised person does not need to comply with this procedure if
immediate entry is required to effectively execute the warrant.
Clause 399 states the general powers of an authorised person after entering
a place. These include the powers of search and inspection, the power to
take samples for analysis or testing. They also include the power to require
a person to give the authorised person reasonable help in exercising the
authorised person's powers, and to require a person to answer questions.
Clause 400 makes it an offence for a person not to give an authorised
person reasonable help when required to do so by the authorised person,
unless the person has a reasonable excuse.
Clause 401 makes it an offence for a person not to answer an authorised
person's question, unless the person has a reasonable excuse. It is a
reasonable excuse that answering the question might tend to incriminate
the person.
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Clause 402 empowers authorised persons to direct a person in charge of a
motor vehicle to stop the vehicle or move it to a convenient place to allow
the authorised person to exercise the authorised person's powers under
chapter 9. It is an offence for a person to fail to comply with the authorised
person's requirement, without a reasonable excuse.
Clause 403 and 404 detail when an authorised person may seize a thing as
evidence of an offence against the Bill.
Clause 405 empowers an authorised person who has entered a place under
a warrant (for a public health risk) which states the power under this
division may be exercised, to take the steps necessary in the circumstances
to remove or reduce the risk to public health from the public health risk, or
prevent it from recurring.
An authorised person exercising a power under this clause must cause as
little inconvenience and do as little damage as is practicable in the
circumstances.
Clause 406 provides that the local government or chief executive (the
`issuing authority') may recover the reasonable costs and expenses
incurred in exercising the powers under clause 388 (Power to enter place to
take steps if public health order not complied with) or 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.
Clause 407 allows a local government to request the registrar of titles to
register a charge over land for an amount payable under clause 406. This
reflects a similar cost recovery mechanism under the Local Government
Act 1993.
Clauses 408 to 415 govern how evidence and public health risks seized
under the Bill are to be dealt with.
Clause 416 empowers an authorised person to require a person's name and
residential address. The power may be exercised only if the authorised
person finds the person committing an offence against the Bill or
reasonably suspects the person has just committed an offence against the
Bill or is responsible for a public health risk.
Clause 417 makes it an offence for a person to fail to comply with a
requirement under clause 416. However, if the person is found by a court
not to have committed the offence or not to have been responsible for the
public health risk, as the case may be, the person is deemed not to have
committed an offence under this clause.
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Clause 418 empowers an authorised person to require a person to make
available or produce or certify a copy of a document issued to a person
under the Bill or required to be kept by the person under this Bill. This
would include for example, an infection control management plan under
chapter 4.
Clause 419 makes it an offence for a person to fail to comply with a
requirement to make available or produce a document under clause 418,
unless the person has a reasonable excuse. It is expressly stated not to be a
reasonable excuse that complying with the requirement might intend to
incriminate the person.
Clause 420 makes it an offence for a person to fail to comply with a
requirement to certify a copy of a document under clause 418, unless the
person has a reasonable excuse.
Part 3 General enforcement matters
Clause 421 requires an authorised person to give notice of damage caused
in the exercise of the authorised person's powers (or a person acting under
the authorised person's direction) to the person who appears to own the
property.
Clause 422 allows a person who incurs loss or expense because of the
exercise or purported exercise of a power under chapter 9, part 2 or chapter
2, part 4 (Authorised prevention and control programs) to claim
compensation from the State or local government, as the case may be.
Compensation may be claimed in a court of competent jurisdiction.
Clause 423 makes it an offence for a person to state anything to an
authorised person, which is false or misleading in a material particular.
Clause 424 makes it an offence to give an authorised person a document,
which contains false or misleading information, unless the person tells the
authorised person about the misleading information and, where possible,
gives the correct information.
Clause 425 makes it an offence to obstruct an authorised person in the
exercise of a power, unless the person has a reasonable excuse.
Clause 426 makes it an offence to pretend to be an authorised person.
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Part 4 Approved inspection programs
Clause 427 allows the chief executive, or for a local government, the chief
executive officer to approve a program under which authorised persons
may enter places to monitor compliance with a regulation made under
clause 61 (Regulations about public health risks). This power is modelled
on similar powers in the Local Government Act 1993. The chief executive
may approve programs for a regulation only if the State has responsibility
for the administration and enforcement of the regulation. Similarly, the
chief executive officer of a local government may only approve a program
if the local government has responsibility for the administration and
enforcement of the regulation (for the allocation of responsibility for
administering and enforcing regulations under clause 61, see explanatory
notes for clauses 12 to 20 and clause 61). The matters to be stated in the
approval are listed in the clause.
The power to enter a place under a program is provided under clause 389.
The procedure for entry is provided under clause 392. (See explanatory
notes for both clauses, above.)
Clause 428 requires the chief executive or chief executive officer to publish
and publicise notice of the approved inspection program. The matters to be
stated in the notice are listed.
Clause 429 requires the chief executive or chief executive officer, as the
case may be, to provide a copy of the program to a person upon request.
Part 5 Analysis of things
Clauses 430 to 433 outline the conditions under which a person may be
appointed and hold office as a "State analyst".
Clause 434 allows the chief executive to approve a laboratory for this part.
Clause 435 provides that an authorised person must give a thing taken for
analysis under this Bill to a State analyst for analysis. The State analyst
must either analyse the thing or cause or give the thing to an approved
laboratory for analysis. The State analyst must complete or obtain a
certificate of analysis and give it to the authorised person. A certificate of
analysis must indicate the method of analysis used (clause 436).
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Chapter 10 Legal proceedings
Part 1 Application
Clause 437 establishes that chapter 10 applies to a proceeding under this
Bill.
Part 2 Evidence
Clause 438 sets out the appointments and authorities that must be
presumed, unless a party to the proceeding requires proof by reasonable
notice.
Clause 439 states that a signature purporting to be the signature of the chief
executive, a chief executive officer, an authorised person, a contact tracing
officer, an emergency officer or a designated medical officer is evidence of
the signature it purports to be.
Clause 440 provides guidance about evidentiary matters.
Part 3 Proceedings
Clause 441 establishes the time limits for commencing proceedings.
Clause 442 states that in any proceeding for an offence against the Bill
involving false or misleading information, or a false or misleading
document, it is enough for a charge to state that the information or
document was, without specifying which, `false or misleading'.
Clause 443 provides for the recovery of costs of investigation of an offence
against the Bill, without limiting the court's powers under the Penalties and
Sentences Act 1992 or another law.
Clause 444 establishes the jurisdiction for orders about costs under clause
443.
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Clause 445 provides for forfeiture to the State of anything used to commit
the offence or anything else the subject of the offence, and the
circumstances in which such an order may be made without limiting the
court's powers under the Penalties and Sentences Act 1992 or another law.
Clause 446 sets out how a thing can be dealt with if it is forfeited.
Clause 447 establishes responsibility for acts or omissions by
representatives under the representative's actual or apparent authority. The
terms "representative" and "state of mind" are defined for the purposes of
the clause.
Clause 448 establishes that executive officers of a corporation must ensure
the corporation complies with the Bill and sets out penalties and
evidentiary provisions.
Clause 449 requires that a fine imposed for an offence in a proceeding
taken by the State or local government must be paid the local government.
Part 4 Appeals
Clause 450 allows the owner of a thing that has been forfeited to appeal the
forfeiture.
Clause 451 establishes in which Magistrates Court an appeal can be started
and when the notice of appeal under the Uniform Civil Procedure Rules
1999 must be filed. The court may, at any time, extend the time for filing
the notice of appeal.
Clause 452 states that in hearing the appeal, the court is not bound by the
rules of evidence.
Clause 453 states that an appeal against a Magistrates Court decision may
be made to the District Court, but only on a question of law.
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Chapter 11 Miscellaneous
Part 1 Annual report on public health
issues
Clause 454 provides for an annual report on public health issues to be given
to the Minister.
Part 2 Other provisions
Clause 455 establishes that there is to be a manager of public health
services for the State and that the holder of the position must be a doctor.
Clause 456 allows the chief executive to delegate the chief executive's
powers under the Bill.
Clause 457 specifies that a prescribed person is not civilly liable for an act
or omission, made honestly and without negligence, under this Bill. The
meaning of prescribed person is defined in clause 457(3).
It is not considered appropriate for an individual to be made personally
liable as a consequence of carrying out his or her responsibilities under the
legislation, in good faith and without negligence. As such, clause 457(1)
prevents civil liability from being attached to an individual. Instead, clause
457(2) establishes that the State or a local government is responsible for the
liability.
Clause 458 provides for certain persons under the Bill to be public officials
for the Police Powers and Responsibilities Act 2000. Under section 14 of
the Police Powers and Responsibilities Act, upon a request being made by
a public official, a police officer may assist a public official to carry out his
or her functions under the Bill (eg to execute a controlled notifiable
condition order or an apprehension warrant under chapter 3). Before the
police officer can help a public official, the public official must explain to
the police officer the powers the public official has under the Bill.
The police officer has, while helping a public official, the same powers and
protections under the Bill as the public official. In addition, section 14 of
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the Police Powers and Responsibilities Act clarifies that a police officer
may exercise the powers of a public official even though the public official
may be absent, if the police officer is satisfied that it is reasonably
necessary in the circumstances.
Clause 459 provides for the approval of forms for use under the Bill.
Clause 460 provides that if a document is required or permitted under this
Bill to be given to a person, the document may be given to the person by
facsimile transmission and is taken to have been given on the day the
document is transmitted.
Clause 461 outlines the general obligations if a person is authorised or
required to explain the terms and effects of on order or something else
under the Bill, to a child or a child's parents. The person need only comply
with the provision to the extent that is reasonably practicable in the
circumstances. If after reasonable inquiries, the whereabouts of the parents
cannot be ascertained or they cannot be contacted, it is not reasonably
practicable to comply.
So far as compliance relates to telling the child about a matter, a person
need only comply with the provision to the extent that the person
reasonably considers is appropriate in the circumstances having regard to
the child's age or ability to understand the matter.
If a person is required under the provision to give the child's parents a copy
of a document or information in writing, the person must also give the child
the information in writing if the person considers it is appropriate in the
circumstances having regard to the child's age or ability to understand the
information.
Part 3 Regulations
Clause 462 provides that the Governor in Council may make regulations
under the Bill. These regulations may impose a penalty and set fees
payable.
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Chapter 12 Savings and transitional
Clauses 463 to 492 provide for the continuation of certain notices,
agreements and orders made under the Health Act 1937 and the Health
Regulation 1996 to continue under the relevant provisions of the Bill.
Clauses 463 provides for the continuation of the manager of public health
services under the former Act (i.e. Health Act 1937) as the manager of
public health services under clause 455 of the Bill.
Clause 464 requires notice to be given about a notifiable condition under
the Bill if the person who was required to give notice under the former Act
had not given notice before the commencement day.
Clause 465 allows the chief executive to include information in the
Notifiable Conditions Register that was obtained from notices given under
the former Act.
Clause 466 provides for the continuation of certain orders made in relation
to a person with a notifiable disease under the former Act.
Clause 467 provides for the continuation of orders to cleanse and disinfect
premises made under the former Act.
Clause 468 allows for the continuation of an order closing a school under
the former Act.
Clause 469 provides that if a professional was required to give notice of
harm under the former Act and did not give the notice before the
commencement day, specified provisions within chapter 5 part 3 of the Bill
will apply.
Clause 470 provides that an order under section 76L of the former Act
continues in force as an order under clause 197 of the Bill.
Clause 471 provides that a notice under section 79 of the former Act
continues in force as a public health order.
Clause 472 provides that a notice under section 94(3) of the former Act
continues in force as a public health order.
Clause 473 states that clause 234(1) of the Bill applies to an examination
carried out before the commencement day if the appropriate return relating
to the examination was not given under section 100C(2) of the former Act.
Clause 474 states that the chief executive may include in the Queensland
Cancer Register the contents of the old cancer register and any follow-up
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information held by the chief executive that had not been included in the
old cancer register.
Clause 475 states that if a person who had not complied with a requirement
under section 100C(1) of the former Act to give a return to the chief
executive, section 100C(1) continues to apply to that person in relation to
the return.
Clause 476 provides that an agreement with a person under section 100DA
of the former Act remains in force under clause 232 of the Bill with any
necessary changes as if it were an agreement to keep the Queensland
Cancer Register.
Clause 477 provides that a further information requirement may be made
under clause 236 of the Bill in relation to a return given under section 100C
of the former Act.
Clause 478 provides that if a person had not complied with a notice given
to the person under section 100DC of the former Act, the notice is taken to
have been given under clause 236.
Clause 479 provides that the chief executive may include the contents of
the old Pap smear register in the Pap Smear Register under clause 253 of
the Bill.
Clause 480 provides that clause 259(2) and (3) of the Bill apply if the
director of a pathology laboratory, who was required to give information
under section 100FJ of the former Act, had not given the information to the
chief executive.
Clause 481 provides that the chief executive must send a woman a notice
under clause 260 of the Bill if the chief executive had received information
mentioned in the former Act, section 100FK(1), but had not sent the
woman a notice.
Clause 482 requires the chief executive to remove the woman's screening
history or change her identifying information, if the woman had made the
request under section 100FM of the former Act.
Clause 483 requires the chief executive to change a woman's identifying
information if the woman had made a request under section 100FN of the
former Act.
Clause 484 requires a person to give the woman a copy of her screening
history, if the woman had requested the copy under section 100FP(2) of the
former Act.
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Clause 485 requires an agreement to continue in force under clause 277 of
the Bill where an agreement to send out notices had been made with a
person under section 100FV of the former Act. The agreement will
continue in force with any necessary changes as it were an agreement to
send out the notices under clause 277 of the Bill.
Clause 486 provides that a person is taken to be a designated health
practitioner under clause 279 of the Bill if they were a person designated as
a health practitioner under section 100FX of the former Act.
Clause 487 provides that the chief executive may include, in the Perinatal
Statistics Collection, information from a return given under section 100H
of the former Act.
Clause 488 provides that clause 217 applies to a delivery that happened
before the commencement day if a return relating to the delivery was not
given under section 100H of the former Act.
Clause 489 provides that information that may be required under clause
218 includes information relating to a delivery that happened before the
commencement date.
Clause 490 provides that a notice to comply under section 129H of the
former Act continues in force as a public health order under the Bill.
Clause 491 states that the chief executive is taken to have granted an
application by the person under chapter 6, part 4, division 2, to be given
health information held by the department if the person was authorised to
conduct scientific research and studies under section 154M of the former
Act. This approval will end 2 years after the commencement date.
Clause 492 provides that proceedings for an offence against a repealed
provision may be started or continued, and a repealed provision necessary
or convenient to be used in relation to the proceedings continues to apply
despite commencement of the Bill.
Clause 493 provides that a reference in an Act or other document may, if
the context permits, be taken to be a reference to the Bill.
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Chapter 13 consequential and other
amendments
Clause 494 clarifies that Schedule 1 of the Bill sets out the consequential
amendments necessitated by this Bill.
Schedule 1 Consequential Amendments
This schedule causes amendments to be made to the following Acts:
Aboriginal Communities (Justice and Land Matters) Act 1984
Ambulance Service Act 1991
Child Protection Act 1999
Commission for Children and Young People and Child Guardian Act 2000
Commonwealth Powers (Family Law - Children) Act 1990
Community Services (Torres Strait) Act 1984
Coroners Act 2003
Corrective Services Act 2000
Evidence Act 1977
Food Act 1981
Food Production (Safety Act) 2000
Gurulmundi Secure Landfill Agreement Act 1982
Health Act 1937
Health Services Act 1991
Liquor Act 1992
Medical Practitioners Registration Act 2001
Metropolitan Water Supply and Sewerage Act 1999
Plumbing and Drainage Act 2002
Police Powers and Responsibilities Act 2000
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Private Health Facilities Act 1999
Public Safety Preservation Act 1986
Queensland Institute of Medical Research Act 1945
Radiation Safety Act 1999
Residential Services (Accreditation) Act 2002
Transplantation and Anatomy Act 1979
As a result of the amendments to the Health Act 1937, the remaining
provisions of that Act will only deal with drugs and poisons issues.
Schedule 2 dictionary
This Schedule sets out a number of definitions for words and phrases used
in the Bill. These definitions determine the meaning that is to be attributed
to certain words or phrases whenever they are used in the Bill or
regulations.
© State of Queensland 2005