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Water Fluoridation Bill 2008
Water Fluoridation Bill 2008
Explanatory Notes
Title of the Bill
Water Fluoridation Bill 2008
Objectives of the Amendments
The object of the Water Fluoridation Bill 2008 is to promote good oral
health in Queensland by the safe fluoridation of public potable water
supplies.
Achievement of the Objectives
The object of the Bill is to be achieved by requiring the safe fluoridation of
relevant public potable water supplies, and authorising the safe fluoridation
of other public potable water supplies.
The Water Fluoridation Bill 2008 (`the Bill') will repeal and replace the
Fluoridation of Public Water Supplies Act 1963 to place a statutory duty on
public potable water suppliers who supply potable water to over 1000
persons to add fluoride to the public water supply under their control or
management.
The population number serviced by a public potable water supply is to be
determined by reference to the most recent Census of Population and
Housing published by the Australian Bureau of Statistics.
In addition, public potable water suppliers that supply potable water to less
than 1000 people may add fluoride to the water supply in accordance with
the Bill. However, this is not a mandatory requirement.
All public potable water suppliers that add fluoride to a water supply will
be required to ensure that the fluoride added is in a form, and complies with
requirements, prescribed by regulation. These requirements will mirror
those in the current Fluoridation of Public Water Supplies Regulation
1998.
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Water Fluoridation Bill 2008
At least 30 days before adding fluoride to the water supply, a public potable
water supplier must also notify the chief executive of Queensland Health
and publish a notice at least once in a newspaper circulating in the affected
area stating the supplier's intention to add fluoride to the public potable
water supply from a stated day.
It will be an offence for a person to add fluoride to a public potable water
supply unless the person is: a public potable water supplier; employee or
agent of a supplier acting under their authority; or other person acting
under provisions of the Bill. The maximum penalty will be 100 penalty
units (currently $7500).
Exemption
Upon application from a public potable water supplier, the Minister must
grant an exemption from the requirement to fluoridate if the Minister is
reasonably satisfied that -
· the water supply contains naturally occurring fluoride at an average
concentration that is within the minimum and maximum
concentrations prescribed under a regulation or above that maximum
concentration; or
· the natural water chemistry of the public potable water supply is such
that the fluoride is unable to be maintained at an average
concentration that is within the minimum and maximum
concentrations prescribed by regulation; or
· the addition of fluoride to the relevant public potable water supply is
unlikely to result in a substantial ongoing oral health benefit to the
community, or part of the community, of the area serviced by the
relevant public potable water supply, and less than 1000 persons
consume water from the public potable water supply.
The Minister must consider advice from an expert committee (`the
Queensland Fluoridation Committee') established under Part 7 of the Bill
in deciding whether or not to grant the exemption.
An exemption will be valid for a period of five years. At the end of the five
year period, a public potable water supplier must either apply for a new
exemption prior to the expiry of the current exemption, or comply with the
requirement to fluoridate.
The requirement to fluoridate does not apply to a public potable water
supplier while an application for an exemption is pending. However, if the
Minister refuses the application for an exemption, the water supplier has 12
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Water Fluoridation Bill 2008
months to comply with the obligation from the date the notice advising of
the Minister's decision is given to the applicant.
Show cause notice
If a water supplier for a relevant public water supply fails to meet its duty to
fluoridate, the Minister for Health may issue a show cause notice, which
will propose that action be taken to cause the relevant public potable water
supply to be fluoridated. The water supplier will be given the opportunity
to `show cause' within 28 days why the proposed action should not be
taken.
In order for the Minister to end the show cause notice without taking action
to cause the fluoridation of the water supply, the Minister must be satisfied
that:
· the public potable water supplier has made reasonable progress
towards complying with the obligation to add fluoride; and
· there have been extenuating circumstances preventing the public
potable water supplier complying with the obligation.
However, if the Minister is not satisfied that the above two conditions have
been met, the Minister may take action to cause the fluoridation of the
relevant public water supply and may recover the costs of this action from
the water supplier.
It will be an offence for a person to obstruct the Minister or an authorised
person from taking action to fluoridate the relevant public potable water
supply.
Remedial notices
The Bill will also enable an authorised person (for example, environmental
health officers) to issue a remedial notice if the authorised person
reasonably believes that a public potable water supplier is contravening the
Bill and believes the matter can be remedied and that it is appropriate to
give the supplier the opportunity to remedy the matter. For example, a
remedial notice may be given to a public potable water supplier where the
authorised person reasonably believes that the incorrect amount of fluoride
is being added to the public potable water supply.
A remedial notice will state the time period in which the public potable
water supplier must remedy the contravention and may also state the
reasonable steps the authorised person considers necessary to remedy the
contravention. If the public potable water supplier does not comply with
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Water Fluoridation Bill 2008
the improvement notice, the chief executive or delegate may take action to
remedy the contravention.
It will be an offence to obstruct the chief executive or delegate from taking
action to remedy the contravention. The maximum penalty is proposed to
be 100 penalty units ($7500).
Alternative Ways of Achieving Policy Objectives
There are no alternatives considered appropriate for achieving these policy
objectives.
Estimated Cost for Government Implementation
The Government has approved 100% capital subsidies and allocated
funding for the fluoridation of water treatment plants servicing populations
greater than 1000 persons across all areas of Queensland at an estimated
cost capital of $35 million. This funding will include:
· reallocation of $6 million unspent funds from the Queensland
Fluoridation Assistance Program to being capital works in 2007-08;
and
· $6 million new funds for 2008-09 financial year.
This program is expected to deliver the following coverage outcomes:
Calendar Year Percentage coverage
2008 54%
2009 80%
2010 83%
2011 92%
2012 95%
Consistency with Fundamental Legislative Principles
In response to the Fluoridation of Public Water Supplies Amendment Bill
2004, the Scrutiny of Legislation Committee noted that a legislative
provision mandating the fluoridation of public water supplies might raise
issues concerning the rights and liberties of individuals under section
4(2)(a) of the Legislative Standards Act 1992 (Alert Digest No.6 of 2004).
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Water Fluoridation Bill 2008
The mandatory fluoridation of public water supplies is justifiable based on
the need to address Queensland's unsustainable level of tooth decay. This
approach will also create certainty for communities, government and
non-government and professional groups.
Fluoride is present in varying amounts in every water supply. Across
Australia where fluoride is added, people are able to elect to drink water
without added fluoride by choosing filtered, tank or bottled water.
The Scrutiny of Legislation Committee also noted the strength of the
scientific opinion in favour of fluoridating public water supplies. Although
occasionally arguments have been advanced that the ingestion of fluoride
can have certain detrimental effects upon persons' health, the Committee
noted that these limited detrimental effects were outweighed by the
health-based arguments for the use of fluoride. It is considered that
mandatory fluoridation is a matter upon which Parliament must ultimately
decide.
Lack of appeal process
The Minister's decision about whether or not to grant an exemption from
the requirement to add fluoride will not be reviewable or appealable. This
also raises a fundamental legislative principle concerning the rights and
liberties of individuals under section 4(2)(a) of the Legislative Standards
Act 1992.
While recognising the importance of merit review processes in government
decision making, it is not considered that a review or appeal process is
either warranted or appropriate for the decision about whether to grant an
exemption. The exemption criteria set out above require factual
measurements (rather than value judgements) which, if made out, attract
the exemption. In addition, the Minister must consider advice from an
expert committee in deciding the application.
Fluoridation is a public health measure where the presumption is that it is
to be added to the public water supply. Fluoridation is not applied
individually but rather to the entire state and only suppliers of water (eg
owners of treatment plants and reticulation equipment) are able to apply for
an exemption from the requirement to fluoridate.
Finally, a water supplier will still have the option to seek judicial review of
the Minister's decision.
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Water Fluoridation Bill 2008
Immunity from civil liability
Clause 95 specifies that the Minister, a committee member, an authorised
person, a State analyst, or a person acting under the direction or authority
of an authorised person is not civilly liable for an act, or omission, made
honestly and without negligence under the Bill.
This clause also raises issues concerning the rights and liberties of
individuals under section 4(2)(a) of the Legislative Standards Act 1992.
It is not considered 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. The liability instead attaches to the State.
The proposed immunity under this clause does not extend to an official
who has been negligent, even though the official may have acted in good
faith.
Self-incrimination
Clause 41 makes it an offence for a person to fail to provide a document to
an authorised person unless the person has a reasonable excuse. The
provision specifies that non-compliance on the basis of a tendency to
incriminate the person is not a reasonable excuse.
Section 4(3)(f) of the Legislative Standards Act 1992 provides that whether
legislation has sufficient regard to rights and liberties of individuals
depends on whether the legislation provides appropriate protection against
self-incrimination. Consequently, this clause may be regarded as
compromising the person's protection against self-incrimination.
However, 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.
Given the limited extent of this provision and the importance of such
documents in achieving the objectives of the legislation to improve oral
health through safe fluoridation, it is reasonable to require a person to
comply with the requirement even if to do so might tend to incriminate the
person. This is consistent with the recommendations of the Queensland
Law Reform Commission Report, The Abrogation of the Privilege Against
Self-incrimination.
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Water Fluoridation Bill 2008
Delegation of authorities
The Bill will enable the Minister and the chief executive to delegate their
functions under the Bill to an appropriately qualified person who is a public
service employee or a health service employee.
This raises a fundamental legislative principle in relation the rights and
liberties of individuals under section 4(2)(a) of the Legislative Standards
Act 1992; specifically, section 4(3)(c) which refers to only delegating
administrative power in appropriate cases and to appropriate persons.
This clause is justified on the basis that the Minister and chief executive are
limited to delegating their functions and powers only to a public service
employee or a health service employee who have the qualifications or
standing appropriate to the exercise of the power.
Consultation
A variety of community surveys have been conducted since 2004 and the
results have been fairly consistent with majority support for fluoridation in
Queensland. Social research has been undertaken to further explore
community views related to water fluoridation (Enhance 2007). This
research found that:
· 75% of the people most opposed to fluoride live in rural Queensland.
· Those most opposed to water fluoridation equally use tap water (36%)
or tank water (36%) as their main source of drinking water.
· 46% of the total population could be swayed in either direction.
· In general, Queensland residents perceive themselves as having
limited knowledge regarding water fluoridation.
· People currently have no firm recollection of where they source their
fluoride information. This lack of source inhibits them from forming
strong opinions on the subject.
· 13 % believe they should have a say in any future decision.
Water fluoridation has been reviewed and is supported by peak bodies
around the world. The most recent (2007) systematic review of the safety
and effectiveness of fluoridation undertaken by Australia's National Health
and Medical Research Council states that, "the fluoridation of drinking
water remains the most effective and socially equitable means of achieving
community-wide exposure to the caries prevention effects of fluoride."
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Water Fluoridation Bill 2008
Queensland agreed to support the implementation of the National Oral
Health Plan through its endorsement by the Australian Health Ministers'
Conference (2004). This commitment was to extend water fluoridation to
all communities of 1000 or more population.
The concerns of those opposed to fluoridation usually relate to claims
about possible side effects of high dose levels of fluoride and issues around
government `mass medicating' or mandating to remove individual choice.
There is no credible, objective evidence to support the claims of adverse
effects (cancer, osteoporosis or fractures). A valid concern in relation to
risks associated with fluoridation is dental fluorosis which poses less risk
to individuals than tooth decay. Risks of fluorosis are usually associated
with inappropriate use of fluoride toothpaste and fluoride supplements. For
these reasons Queensland Health has developed a new policy on the
appropriate use of fluorides and implemented a public education strategy
for use of fluoride toothpaste and controlled use of fluoride supplements.
Consultation on the Bill has been undertaken with the Interdepartmental
Water Fluoridation Steering Committee which includes senior
representatives from the Department of Natural Resources and Water,
Department of Local Government, Sport and Recreation, Department of
Communities, Department of Infrastructure and Planning, the Queensland
Water Commission, the Department of Employment and Industrial
Relations, the Queensland Bulk Water Supply Authority and Queensland
Treasury.
In addition, the Department of the Premier and Cabinet and the Department
of Justice and Attorney-General, the Australian Medical Association
Queensland, the Australian Dental Association Queensland and the Local
Government Association Queensland were consulted and support the Bill.
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Water Fluoridation Bill 2008
Notes On Provisions
Part 1 Preliminary
Division 1 Introduction
Clause 1 sets out the short title of the Act.
Clause 2 provides that the Act commences on a day to be fixed by
proclamation.
Clause 3 specifies that the Act binds all persons, including the State.
However, nothing in the Act makes the State liable to be prosecuted for an
offence.
Division 2 Object
Clause 4 sets out the objects of the Act.
Part 2 Interpretation
Clause 5 provides that the dictionary in the schedule defines particular
words used in the Act.
Clause 6 defines the term relevant public potable water supply to mean a
public potable water supply supplying potable water to at least 1000
members of the public. The number of members of the public being
supplied is to be determined by reference to the most recent national
Census of Population and Housing published by the Australian Bureau of
Statistics. This applies even if the actual population number fluctuates at
any time.
For example, if, based on the 2006 Census, a particular public potable
water supply services a population of 850 persons, it is not a relevant public
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Water Fluoridation Bill 2008
potable water supply. However, if the next Census in 2011 indicates that the
public potable water supply services a population of 1500 persons, then the
water supply will be a relevant public potable water supply.
Part 3 Fluoridation of public potable
water supplies
Clause 7 requires a public potable water supplier for a relevant public
potable water supply to add fluoride to the relevant public potable water
supply within the time prescribed under a regulation.
The Clause also notes that Part 4 sets out the consequences for
contravening this clause and Clause 12 contains requirements about adding
fluoride to a water supply.
Clause 8 sets out a process for public potable water suppliers for a relevant
public potable water supply to apply for an exemption from the obligation
to add fluoride under clause 7.
A public potable water supplier may apply to the Minister for an exemption
from the obligation to fluoridate on one of the following grounds:
· the water supply contains naturally occurring fluoride at an average
concentration that is within the minimum and maximum
concentrations prescribed under a regulation, or is above the
maximum concentration; or
· the natural water chemistry is such that the fluoride is unable to be
maintained in the public potable water supply within the minimum
and maximum concentrations prescribed under a regulation; or
· the addition of fluoride to the relevant public potable water supply is
unlikely to result in a substantial ongoing oral health benefit to the
community, or part of the community, of the area serviced by the
relevant public potable water supply, and less than 1000 persons
consume water from the public potable water supply. For example,
this may occur where the `town' water is bore water which has a
pungent/overpowering taste and odour making it unpleasant (rather
than unsafe) to consume, so the community all consume water from
other sources.
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Water Fluoridation Bill 2008
The onus is on the public potable water supplier to provide information or
evidence to demonstrate the ground exists. If the Minister is reasonably
satisfied that the ground is proven, the Minister must grant the exemption.
The Minister must seek and consider advice from an expert committee
(`the Queensland Fluoridation Committee') established under Part 7 of the
Bill in deciding whether or not to grant the exemption, and must give notice
of the decision to the applicant.
The exemption may also be given on reasonable conditions.
Clause 9 provides that an exemption will be valid for a period of five years
after the notice of the Minister's decision is given to the applicant. A public
potable water supplier must either apply for a new exemption prior to the
expiry of the current exemption, or comply with the requirement to
fluoridate before the five year period provided by the exemption finishes.
The requirement to fluoridate does not apply to a public potable water
supplier while an application for an exemption is pending. However, if the
Minister refuses the application for an exemption, the water supplier has 12
months to comply with the obligation from the date the notice advising of
the Minister's decision is given to the applicant.
Clause 10 specifies that the Minister may refuse an application for an
exemption if the Minister reasonably believes the application is vexatious.
The Minister may refuse the application without referring it to the
committee. In addition, the requirement of clause 7 of the Act applies to the
applicant at all times. The Minister must give notice of the refusal to the
applicant.
Clause 11 provides that a public potable water supplier for a public potable
water supply, other than a relevant public potable water supply, may add
fluoride to the public potable water supply. The clause also notes that
clause 12 contains requirements about adding fluoride to a water supply.
Clause 12 specifies that a public potable water supplier for a public potable
water supply that adds fluoride to the water supply, must ensure the
fluoride is added in a form and complies with all the requirements
prescribed under a regulation.
The clause also notes that Part 5, Division 3 sets out the consequences for
contravening this provision.
Clause 13 requires a public potable water supplier to give 30 days notice of
their intention to add fluoride to the public potable water supply. The notice
must be given to the chief executive and published at least once in a
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Water Fluoridation Bill 2008
newspaper circulating in the area of the State serviced by the public potable
water supply.
There is no penalty for a failure to comply with this provision. However, a
failure to comply with this provision does not operate to exclude a public
potable water supplier from meeting their obligation under clause 7.
Clause 14 specifies that a person must not add fluoride to a public potable
water supply unless the person is: a public potable water supplier for the
public potable water supply; an employee or agent acting under the
direction of the supplier; or another person acting under clauses 21 or 60 of
the Bill. A maximum penalty of 100 penalty units applies.
Part 4 Non-compliance with obligation
to add fluoride to relevant public
potable water supply
Clause 15 provides that the Minister may issue a notice to a public potable
water supplier if the Minister believes the supplier is not complying with
the obligation to fluoridate the relevant public potable water supply. The
notice must invite the public potable water supplier to show cause why
action should not be taken to cause the fluoridation of the water supply (the
proposed action) within the stated period. The stated period must be at least
28 days from the day the show cause notice is issued.
Clause 16 provides that the public potable water supplier may make written
representations about the show cause notice to the Minister within the time
period stated. The Minister must consider all representations made under
this clause.
Clause 17 provides that the Minister may refer the accepted representations
to the committee to obtain its written advice about the merits of the
representations.
Clause 18 provides that the Minister may decide not to take the proposed
action if satisfied that: the public potable water supplier has made
reasonable progress towards complying with the obligation to fluoridate
and there have been extenuating circumstances preventing compliance with
the obligation.
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Water Fluoridation Bill 2008
Clause 19 provides that if, after considering the written representations, the
Minister decides not to take action to cause fluoridation, the Minister must
not take any further action and must notify the supplier about this decision.
Clause 20 provides that if the Minister decides not to act under clause 19,
the Minister must take action to fluoridate the public potable water supply.
The Minister must also immediately give notice of this decision to the
supplier.
Clause 21 specifies that in taking action to fluoridate a water supply, the
Minister may authorise a person to do the things that are necessary and
reasonable. This includes entering a place that contains the relevant water
supply and accessing any infrastructure connected with the water supply or
taking onto the place any persons, equipment or materials the person
reasonably requires for taking action to fluoridate the water supply.
Clause 22 enables the State to recover from the public potable water
supplier the costs and expenses of taking action to fluoridate the water
supply.
Clause 23 provides that it is an offence to obstruct the Minister or a person
authorised by the Minister to take action to fluoridate a water supply unless
the person has a reasonable excuse. The maximum penalty is 100 penalty
units.
Part 5 Monitoring and enforcement
Division 1 Authorised persons
Subdivision 1 Preliminary
Clause 24 provides that an authorised person has the powers set out in this
Act. In exercising these powers, an authorised person is subject to the
directions of the chief executive.
Clause 25 sets out the functions of authorised persons.
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Water Fluoridation Bill 2008
Subdivision 2 Appointment of authorised persons
Clause 26 empowers the chief executive to appoint authorised persons. The
clause also states that the chief executive must be satisfied the person has
the necessary expertise or experience to be an authorised person.
Clause 27 specifies that an authorised person holds office on the conditions
stated in their instrument of appointment or a signed notice given to the
authorised person or in a regulation. The powers of an authorised person
may be limited by the instrument of appointment, the signed notice or a
regulation.
Clause 28 requires the chief executive to issue an identity card to each
authorised person.
Clause 29 provides that an authorised person must produce or display the
authorised person's identity card if exercising a power under the Act.
However, if it is not practicable in the circumstances to do so before
exercising the power, the identification must be produced at the first
reasonable opportunity.
Clause 30 states the ways in which an authorised person may cease to hold
office. The methods detailed are not exhaustive.
Clause 31 states that an authorised person may resign by signed notice to
the chief executive.
Clause 32 requires an authorised person to return the authorised person's
identity card within 21 days of ceasing to be an authorised person.
Division 2 Powers of authorised persons
Subdivision 1 Entry of places
Clause 33 provides that an authorised person may enter a place if the
occupier consents to the entry or where the entry is authorised by a warrant.
The clause also confers on an authorised person a right to enter a place
without the occupier's consent or a warrant if the place is:
· a public place and entry is made when it is open to the public; or
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Water Fluoridation Bill 2008
· it is a place that contains a public potable water supply or
infrastructure connected with the supply.
Subdivision 2 Procedure for entry
Clause 34 outlines the procedures an authorised person must follow when
seeking consent to enter a place. This clause also provides that, should the
issue arise in a proceeding whether the occupier consented to the entry and
an acknowledgement of consent is not produced in evidence, the onus of
proof to prove the entry was lawful lies with the person relying on the
lawfulness of the entry.
Clause 35 makes provision for an authorised person to apply to a
magistrate for a warrant to enter a place. Under this provision, a magistrate
may refuse to consider an application until an authorised person provides
the magistrate with the information the magistrate requires.
Clause 36 sets out the grounds that a magistrate must be satisfied of before
issuing a warrant and specifies the information that must be stated in the
warrant.
Clause 37 makes provision for an authorised person to apply for a warrant
by phone, fax, email, radio, videoconferencing or another form of
electronic communication because of urgent or other special
circumstances.
Clause 38 provides that a warrant issued under Clauses 35-37 is invalidated
only if a defect in the warrant affects the substance of the warrant in a
material particular.
Clause 39 outlines the procedures that must be followed by an authorised
person prior to entering a place under a warrant.
Subdivision 3 General powers
Clause 40 specifies what powers are available to an authorised person who
has entered a place for the purposes of monitoring and enforcing
compliance with the Act.
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Water Fluoridation Bill 2008
Clause 41 makes it an offence for a person to fail to help an authorised
person if requested under clause 40(3)(f), unless the person has a
reasonable excuse. It is a reasonable excuse for an individual to not comply
with the request to give information or provide a document on the basis that
complying might tend to incriminate the person.
Clause 42 makes it an offence for a person to fail to provide an authorised
person with information requested under clause 40(3)(g), unless the person
has a reasonable excuse. It is a reasonable excuse for an individual to not
comply with the request to give information on the basis that complying
might tend to incriminate the person.
Subdivision 4 Power to seize evidence
Clause 43 provides an authorised person with the power to seize a thing at a
place entered, without consent or a warrant, if the authorised person
reasonably believes that the thing is evidence of an offence.
Clause 44 provides an authorised person with the power to seize a thing at a
place if the authorised person:
· obtained the necessary consent to enter the place; and the authorised
person reasonably believes that the thing is evidence of an offence
against the Act; and seizure of the thing is consistent with the purpose
of entry as told to the occupier when asking for the occupier's
consent; or
· enters the place with a warrant and seizes evidence for which the
warrant was issued; or
· reasonably believes another thing at the place is evidence of an
offence against the Act and needs to be seized to secure evidence or to
prevent repeat offences; or has just been used in committing an
offence against the Act.
Subdivision 5 Dealing with seized things
Clause 45 enables an authorised person to take action in relation to a thing
which has been seized by either moving the thing from the place where it
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Water Fluoridation Bill 2008
was seized or leaving the thing at the place of seizure but restrict access to
it.
Clause 46 makes it an offence for a person to tamper, or attempt to tamper
with a seized thing or restrict access to the seized thing without an
authorised person's consent.
Clause 47 makes provision for an authorised person to require the person in
control of a thing to be seized to take it to a stated reasonable place by a
stated reasonable time; and if necessary, to remain in control of it at the
stated place for a reasonable time. It is an offence for a person to fail to
comply with a requirement made under this clause unless the person has a
reasonable excuse.
Clause 48 specifies that an authorised person who has required a person
under clause 47 to take a thing to a place may require the person to return
the thing to its original place. It is an offence for a person not to comply
with the requirement to return the thing to its original place.
Clause 49 requires an authorised person to issue a receipt for a seized thing
to the person from whom the thing was seized. However, if this proves
impractical, the authorised person must leave the receipt at the place of
seizure in a conspicuous position and in a secure way.
Clause 50 sets out the circumstances in which a seized thing will be
forfeited to the State if, for example if the owner cannot be found after
making reasonable inquiries, or if it cannot be returned to its owner, after
making reasonable efforts. The clause also provides what actions a State
may take with respect to the forfeited thing.
Clause 51 specifies when an authorised person must return a seized thing to
its owner, if the thing has not been forfeited.
Clause 52 provides for the owner of any seized thing to have access to it for
inspection or copying (if a document) until it is forfeited or returned.
Clause 53 enables an authorised person to destroy a thing that has been
seized if the thing consists wholly or partly of contaminated or
decomposed matter, or that poses an immediate risk to public health or
safety.
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Water Fluoridation Bill 2008
Subdivision 6 Power to obtain information
Clause 54 makes provision for an authorised person to:
· require a person to make available for inspection or produce a
document for their inspection that is required to be kept by the person
under the Act;
· require a person to certify that a copy of the document or an entry in a
document is a true copy; and
· keep a document until such time as a copy of the document or entry in
a document is certified as a true copy.
Clause 55 makes it an offence for a person to fail to comply with a request
to produce a document, unless the person has a reasonable excuse. It is not
a reasonable excuse not to comply with the request on the basis that
complying might tend to incriminate the person.
Clause 56 makes it an offence for a person to fail to comply with a request
to certify a document, unless the person has a reasonable excuse.
Division 3 Remedial notices
Clause 57 refers to the definitions for "remedial notice", "relevant
provision" and "the contravention" for Division 3.
Clause 58 provides that this division applies if an authorised person
reasonably believes: a public potable water supplier is contravening or has
contravened a provision of the Act, and that it is likely the contravention
will continue; that a matter relating to the contravention can be remedied;
and it is appropriate to give the public potable water supplier an
opportunity to remedy the matter.
For example, a remedial notice may be given to a public potable water
supplier where the authorised person reasonably believes that the incorrect
amount of fluoride is being added to the public potable water supply.
This division does not apply to a contravention of clause 7. Contraventions
of clause 7 may be dealt with under Part 4.
Clause 59 provides that the authorised person may give the public potable
water supplier a notice requiring the public potable water supplier to
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Water Fluoridation Bill 2008
remedy the contravention. The notice must state the reasonable steps that
are considered necessary to remedy the contravention and avoid further
contravention. For example, a remedial notice may require the supplier to
alter the concentration of fluoride in the water to within the minimum and
maximum concentration prescribed under a regulation and keep records of
the average concentration of fluoride in the supply over a certain period of
time. The public potable water supplier must comply with the notice.
The clause also provides that a prosecution may proceed if a remedial
notice has not been given. However, a prosecution may not proceed if a
remedial notice has been issued unless the person fails to comply with the
remedial notice and does not have a reasonable excuse. That is, as long as a
supplier complies with the remedial notice, the issuance of the remedial
notice waives the ability to prosecute.
Clause 60 specifies that the chief executive may take the action the chief
executive considers reasonably necessary to remedy the contravention of
the relevant provision. The chief executive may authorise a person to do
the things that are reasonable and necessary. This may include entering a
place for the purpose of taking action to remedy the contravention or taking
onto the place any persons, equipment or materials the person reasonably
requires for taking action to remedy the contravention.
Clause 61 provides that the costs and expenses incurred by the chief
executive in taking the action are a debt payable by the public potable water
supplier to the State.
Clause 62 makes it an offence for a person to obstruct the chief executive,
or a person authorised by the chief executive to take the action, in taking
the action, unless the person has a reasonable excuse.
Division 4 General enforcement matters
Subdivision 1 Notice of damage and compensation
Clause 63 provides that if an authorised person, or a person acting under
the direction or authority of an authorised person, damages property when
exercising or purporting to exercise a power, the person must immediately
give notice of the particulars of the damaged property to a person who
appears to the authorised person to be an owner of the property.
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Clause 64 specifies that if a person incurs loss or expense because of the
exercise or purported exercise of a power, the person may claim
compensation from the State. Compensation may be claimed for loss or
expense incurred in complying with a requirement made of the person.
Subdivision 2 Other matters
Clause 65 makes it an offence for a person to obstruct an authorised person
in the exercise of a power, unless the person has reasonable excuse.
Clause 66 makes it an offence for a person to state anything to an
authorised person that the person knows is false or misleading.
Clause 67 makes it an offence for a person to give an authorised person a
document containing information the person knows is false or misleading.
This provision does not apply if the person, when giving the document:
tells the authorised person how the document is false or misleading; and, if
the person has or can reasonably obtain the correct information, gives the
authorised person the correct information.
Clause 68 makes it an offence for a person to pretend to be an authorised
person.
Part 6 Analysis of things or samples
Division 1 State analysts and approval of
laboratories
Clause 69 empowers the chief executive to appoint a State analyst. The
clause also states the chief executive must be satisfied the person has the
necessary expertise or experience to be a State analyst.
Clause 70 specifies that a State analyst holds office on any conditions
stated in their instrument of appointment, or a signed notice given to the
State analyst or a regulation.
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Water Fluoridation Bill 2008
Clause 71 states the ways in which a State analyst ceases to hold office, but
does not limit the ways in which a State analyst may cease to hold office.
Clause 72 states that a State analyst may resign by signed notice given to
the chief executive.
Clause 73 provides that a chief executive may approve a laboratory to
analyse things, or samples taken from things, if the chief executive is
satisfied the laboratory has the resources and expertise to conduct the
analysis and the laboratory is accredited, authorised or approved to conduct
the analysis by an entity prescribed under a regulation.
Division 2 Other matters about analysis of
things or samples
Clause 74 provides that if an authorised person takes a thing or a sample
from a thing for analysis, the authorised person must, as soon as
practicable, give it to a State analyst appointed to carry out the particular
type of analysis required. The clause also provides the conditions under
which a State analyst or approved laboratory must analyse things and the
completion of the certificate of analysis.
Clause 75 states that the certificate of analysis must include information
about the methodology used to conduct the analysis.
Part 7 Queensland Fluoridation
Committee
Division 1 Establishment and functions
Clause 76 establishes the Queensland Fluoridation Committee.
Clause 77 outlines the functions of the Queensland Fluoridation
Committee.
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Water Fluoridation Bill 2008
Division 2 Membership
Clause 78 outlines the membership of the Queensland Fluoridation
Committee.
Clause 79 outlines the process under which an entity is to nominate a
person for membership of the committee.
Clause 80 states that an appointed member is to be appointed for the term
stated in the instrument of appointment. Each term must be no more than 2
years.
Clause 81 provides that a committee member is entitled to be paid the fees
and allowances decided by the Governor in Council.
Clause 82 appoints the chief health officer as the committee's chairperson
and the chief dental officer as the committee's deputy chairperson. The
clause also provides for the deputy chairperson to act as the chairperson in
the chairperson's absence.
Division 3 Committee business
Clause 83 provides for the committee to conduct its business, including its
meetings, in the way it considers appropriate.
Part 8 Evidence and legal proceedings
Division 1 Application
Clause 84 provides that Part 8 applies to legal proceedings under the Act.
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Water Fluoridation Bill 2008
Division 2 Evidentiary aids
Clause 85 states that the chief executive's appointment, an authorised
person's or committee member's appointment, and the authority of the
Minister, the chief executive or an authorised person to do anything under
the Act is presumed, unless a party to the proceeding requires proof of it.
Clause 86 provides that a signature purporting to be the signature of the
Minister, chief executive or an authorised person is evidence of the
signature it purports to be.
Clause 87 specifies those matters that do not have to be proved in a
proceeding under the Act, or which are considered to be evidence of those
matters.
Division 3 Offence proceedings
Clause 88 states that a proceeding for an offence against this Act is to be
taken in a summary way under the Justices Act 1886.
Clause 89 states that in any proceeding for an offence against this Act
defined as 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 "false or misleading" without specifying which.
Clause 90 provides that if it is relevant to prove a person's state of mind
about a particular act or omission, it is enough to show the act was done or
omitted to be done by a representative of the person within the scope of the
representative's actual or apparent authority and the representative had the
state of mind.
Clause 91 provides that the executive officers of a corporation must ensure
the corporation complies with the Act.
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Water Fluoridation Bill 2008
Part 9 Matters relating to liability and
indemnity
Division 1 Liability
Clause 92 states that no provision of this Act creates a civil cause of action
based on a contravention of this provision.
Clause 93 sets out that the Act does not affect or limit a civil right or
remedy that exists apart from this Act, whether at common law or
otherwise. However, compliance with the Act does not necessarily show
that a civil obligation that exists apart from this Act has been satisfied or
has not been breached.
Clause 94 provides that a person does not have any civil right or remedy
against a supplier in relation to the fluoridation of a public potable water
supply undertaken in accordance with this Act. This clause reflects that the
purpose of the Bill is to require or permit the safe fluoridation of public
potable water supplies.
Clause 95 states that an official is not civilly liable for an act done, or
omission, made honestly and without negligence under this Act.
Division 2 Indemnity for public potable water
suppliers
Clause 96 states that the State is to indemnify a public potable water
supplier against all costs and expenses properly incurred, and not
recovered, by it in relation to any proceeding in a court taken against it in
relation to anything it is required or permitted to do under clause 7 or 11. If
an Act proceeding is started against a supplier, it must immediately notify
the Minister.
Clause 97 provides that the Minister, or a person nominated by the
Minister, may at any time elect to be joined in the Act proceeding as a party
by notice filed in the court.
Clause 98 states that the electing party may, on behalf of the supplier, do
anything the supplier could do as a party to the proceeding including
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Water Fluoridation Bill 2008
settling a matter arising in the proceeding. The supplier must not do
anything as a party to the proceeding unless authorised to do so by the
electing party. The supplier must assist the electing party to act under
sub-clause 1 by executing all documents that the electing party considers
necessary for that purpose.
Part 10 Miscellaneous
Clause 99 empowers the Minister or chief executive to delegate his or her
functions under this Act to an appropriately qualified person who is a
public service employee of the department or a health service employee.
Clause 100 empowers the Governor in Council to make regulations about
specified matters under this Act.
Part 11 Repeal and transitional
provisions
Clause 101 states that the Fluoridation of Public Water Supplies Act 1963
No. 34 is repealed.
Schedule Dictionary
The Schedule defines key terms used in the Act. Important definitions
include the following.
public potable water supplier, for a public potable water supply, means --
(a) if there is a water treatment plant for the water supply - the owner of the
water treatment plant; or
(b) otherwise, the owner of the reticulation equipment for the water supply.
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Water Fluoridation Bill 2008
public potable water supply means a water supply at the point it supplies
potable water to the public by means of a water treatment plant or
reticulation equipment.
© State of Queensland 2008
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