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CLAUSE NOTES
Public Health (Miscellaneous Amendments) Bill 2015
Clause Notes
Part 1 – Preliminary
Clause 1 Short title
Clause 2 Provides that the Bill, if passed, will commence on proclamation.
Part 2 – Corrections Act 1997 Amended
Clause 3 Provides that the Principal Act amended by Part 2 is the Corrections Act 1997.
Clause 4 Amends section 30 of the Corrections Act 1997 and retains the Director of
Corrective Services’ ability to require mandatory testing of prisoners and
detainees for HIV and other blood borne diseases. Counselling on the
necessity of the test is to be conducted by a registered nurse or a medical
officer (being a medical practitioner engaged to examine, treat or care for a
prisoner or detainee) rather than an ‘approved counsellor’, that being a
redundant concept from the HIV/AIDS Preventive Measures Act.
Clause 5 Repeals section 31 of the Corrections Act 1997, which will remove mandatory
notification to the Director of Corrective Services of all test results, leaving
positive results to be notified to the Director of Public Health when required
under the Public Health Act 1997.
This clause also repeals section 32, which will remove incorporated sections
of the HIV/AIDS Preventive Measures Act upon its repeal.
Part 3 - Public Health Act 1997 Amended
Clause 6 Provides that the Principal Act amended by Part 3 is the Public Health Act
1997 (referred to in these clause notes as ‘the Act’).
Clause 7 Amends section 3 (interpretation) by removing, adding and amending some
definitions, as a consequence of the substantive amendments to the Act.
Some of the changes include:
Clinical assessment
This new term replaces ‘medical examination’, as it more accurately
reflects the nature and conduct of the assessment, and also puts it
beyond doubt that nurses and other health professionals may be
competent to carry out examinations and assessments (in addition to
medical practitioners).
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The definition includes new paragraphs (c), (d), and (e) to enable an
assessment to take place other than in person (for example, via use of
internet technology or document sources); to clarify that the testing
process is part of an assessment; and to provide for other methods to
be prescribed in regulations if and as they arise in future.
Disease
The meaning of disease includes a new reference to ‘conditions’ and
‘signs’, so it is clear the definition captures all the relevant clinical and
other markers of a disease.
Notifiable contaminant
This is a new term that will replace the lengthy phrase ‘human
pathogenic organism or contaminant’. The definition has undergone
drafting changes not affecting its operation (as has the definition of
notifiable disease).
Personal information
This term will no longer refer to a Medicare number, as this will be
captured by referring to unique numbers in Part 7 of the Act relating to
the Cervical Screening Register.
Solid food
This term will no longer include reference to ‘confectionery’. This
amendment was inadvertently not included as part of the package of
amendments to the tobacco control provisions of the Act passed by
Parliament in 2011.
Clause 8 Amends section 15 (public health emergencies) to expressly require the
Director of Public Health to notify the State Controller if a public health
emergency declaration is extended or revoked (the requirement to notify the
making of the declaration already exists). Drafting changes not affecting the
operation of section 15 are also included.
Clause 9 Amends section 16 (directions during an emergency) to:
replace the words ‘reduce, remove or destroy any threat to public
health’ with ‘manage a threat or likely threat to public health’. This more
accurately describes the purpose for which the Director of Public Health
may need to issue directions in a public health emergency. The term
‘segregate’ is replaced with ‘quarantine’ for the same reason;
require a person who carries out a clinical assessment during a public
health emergency to provide the Director with a report as soon as
practicable after the assessment. This ensures information relevant to
the management of a public health emergency is provided to the
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Director in a timely manner;
expressly require the Director revoke a direction as soon as practicable
after being satisfied the direction is no longer necessary to manage a
threat or likely threat to public health;
require the Director reassess the need for a quarantine, isolation or
location direction at reasonable periods, at minimum every 7 days, and
to arrange for a clinical assessment to take place if necessary to
determine whether the direction should continue. This provides express
legislative limits relating to the exercise of these powers; and
make drafting changes not affecting the operation of section 16.
Clause 10 Introduces a warrant framework that can be accessed during a public health
emergency (sections 16A, 16B, 16C). The Director may apply, and a
magistrate may issue, a warrant for the apprehension of a person who has
failed to comply with a direction of the Director issued during a public health
emergency.
Without a warrant framework, a person who does not comply with a
direction may risk a fine at some future date, but there is no alternative
mechanism to compel the timely action needed as part of managing the
public health emergency.
A warrant framework addresses this by providing that such a person can be
brought before a magistrate (or represented by another person if there is a
health risk in bringing the person before the court) and a magistrate may
order the person comply (or may revoke or make other orders). A person
failing to comply with an order of a magistrate is then in breach of a court
order. The Magistrate may also order the detention, quarantine, isolation or
clinical assessment of the person.
An order of a magistrate that requires a person be quarantined or isolated,
ends when the Director declares that action is no longer necessary to
manage a threat or likely threat to public health.
Clause 11 Contains drafting changes not affecting the operation of section 17.
Clause 12 Introduces a framework for amending guidelines during a public health
emergency (sections 17A, 17B, 17C).
Section 17A – allows for the temporary suspension of the requirement to
issue a public notice (under section 184(4)) and table an amended guideline
in Parliament (under section 196(2)) if the Director amends or revokes a
guideline during a public health emergency.
The temporary suspension of these processes will enable the Director to
amend the guidelines in a timely manner as required in response to an
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unpredictable and changing emergency situation.
For example, during a public health emergency the Director may amend
notification guidelines to require doctors notify the Director of the
occurrence of a particular disease when it fits a specific case definition. That
case definition may change more than once throughout the emergency
period which would – in the absence of this clause – require multiple
amendments to the guidelines, multiple public notices and tabling of
documents in Parliament which may, at the time of tabling, already be out-of-
date.
The Bill provides that if the guideline reverts back to the pre-emergency
requirements within 30 days of the public health emergency ending, then it
will not be necessary to issue a public notice or table the amendments. If,
however, the change is to take effect beyond this time then the Director is to
issue a public notice advising of the change and the amended guidelines must
be tabled in Parliament (so the usual processes apply).
Section 17B – requires the Director take reasonable steps to ensure that
persons directly affected by the change to the guideline are notified. Where
parties agree email is the established notification protocol for public health
messages, an email advising of the changes is taken to satisfy the notice
requirement.
Section 17C – provides a defence to an allegation that a person failed to
comply with an amended guideline. A person has a defence if the allegation
relates only to the amended parts of the guideline when those parts were in
force; the failure would not have constituted an offence if the amendment
had not been made; and notice of the amendment was not given to the
person.
Clause 13 Amends the heading for Part 3 of the Act which contains the framework for
the notification, investigation and management of threats or likely threats to
public health arising from diseases and contaminants.
The existing framework in the Act allows the Director of Public Health to
issue a public notice declaring a disease or contaminant to be ‘notifiable’.
The Director may then issue guidelines requiring particular persons notify the
occurrence of the disease or contaminant; may investigate to determine the
existence and extent of a threat or likely threat to public health; and, if
needed, issue directions to manage that threat.
Clause 14 Repeals section 41 (which will be covered in section 42) and substitutes a
revised section 40. Section 40 continues to permit the Director of Public
Health to issue a public notice declaring a disease or a contaminant to be
‘notifiable’. Specific reference to ‘non-communicable’ diseases has been
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added, so it is clear that such diseases (eg, lead poisoning) can be declared
‘notifiable’ and are diseases for which Part 3 of the Act can be used. The
ability to require a ‘class’ of organisms or substances be notifiable
contaminants has also been added, to ensure greater flexibility of laboratory
and notifications practice where, for example, a species of organism may have
multiple sub-types (eg, Listeria).
Clause 15 Amends section 42 (directions to persons) to:
ensure it is clear the Director of Public Health can, if necessary to
manage a threat or likely threat to public health, issue a section 42
direction to a person who may have been exposed to a notifiable
disease (who may carry the disease without exhibiting symptoms);
use the revised terminology ‘clinical assessment’;
require a person conducting a clinical assessment to provide a written
report to the Director as soon as practicable after the assessment;
introduce express provisions relating to ending or revoking a direction;
and
as with the section 16 emergency directions, expressly require the
Director to reassess the need for a quarantine or isolation direction at
least every 7 days, which provides express legislative limits relating to
the exercise of these powers.
Clause 16 Repeals the old warrant framework and inserts a new framework (sections
43, 44, 45), which mirrors that introduced by clause 9.
It also introduces a more specific head of power (section 46) for guidelines
issued by the Director of Public Health that require certain people (for
example, laboratories and doctors) to notify the occurrence or suspected
occurrence of a ‘notifiable’ disease or contaminant.
Clause 17 Makes minor amendments to section 49 (reports to councils by the
Director), to better reflect practical requirements.
Clause 18 Amends section 50 (doctors providing information) so the provisions also
apply where a person may have been exposed to a notifiable disease. The
substance of the information to be provided by medical practitioners has not
changed. The Director may now require a medical practitioner pass on to the
Director relevant information received from the patient (instead of just
collecting it). More express defence provisions are now included.
Clause 19 Amends section 52 so it is clear an investigation may be carried out in
relation to the suspected presence or occurrence of a notifiable disease or
contaminant (not just where the disease or contaminant is present or has
occurred) – thereby enabling more timely and more effective public health
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action to be taken.
Clause 20 Contains drafting changes not affecting the operation of section 55.
Clause 21 Contains drafting changes not affecting the operation of section 56.
Clause 22 Inserts a new Division into Part 3.
The Division re-establishes a revised permit system to regulate the supply of
new needles and syringes to injecting drug users. The existing system ends
with the repeal of the HIV/AIDS Preventive Measures Act.
The system is administered by the Director of Public Health. Essentially it
requires organisations to obtain a permit and only allow trained persons to
supply equipment to injecting drug users.
The permit system does not apply to organisations involved in supplying
needles and syringes for medical or veterinary purposes or wholesale
activities.
Section 56A:
Contains all the terms that have a particular meaning for the purposes of this
Division.
Most relevant is the definition of ‘organised distributor’, which encompasses
all government, community sector and commercial organisations who supply
injecting equipment.
The notable exclusion from this list is a natural person. The reason for this is
to exclude individuals who are involved in the peer distribution of new
equipment. Peers are integral to facilitating the use of needle and syringe
outlets, distributing new equipment and encouraging the appropriate disposal
of used needles and syringes.
Section 56B:
Defines the word ‘supply’, as used in this Division, to:
exclude supply for legitimate medical and veterinary purposes; wholesale
distribution; and disposal;
create the authority to exclude any other appropriate groups by
regulation; and
expressly include supply of needles and syringes by way of a vending
machine, personal delivery and post (where posted at the direction of a
‘certified person’ under the Act).
Section 56C:
Creates an offence for the supply of needles and syringes by an organised
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distributor without a permit.
Section 56D
Establishes a process by which an organised distributor may apply to the
Director of Public Health for a permit. The Director must be satisfied of a
number of matters prior to issuing a permit (at subsections (3), (4) and (5)).
The Director may only issue a permit if satisfied that it is in the interests of
public health for needles and syringes to be supplied by the organised
distributor, at the nominated premises, or by post or personal delivery.
A permit may be issued for a maximum of three years; may be renewed
upon application (subsection 6); and is non transferrable (subsection 8).
Section 56E:
Requires the Director to specify as a term on a permit the manner in which
the supply is authorised – that is, on the premises, via a dispensing machine
and/or by post or personal delivery.
Section 56F:
Establishes the conditions attaching to a permit, some mandatory and some at
the discretion of the Director. Specifically:
a permit is subject to the terms specified in section 56E;
permit holders must only use certified persons to supply needles or
syringes or, in the case of a dispensing machine, a certified person must
be responsible for the day to day operation of the machine;
permit holders must provide information specified in any notice from
the Director;
permit holders must comply with approved service standards; and
the Director has the discretion to specify additional conditions.
Section 56G:
Establishes a mechanism for the variation, revocation and specification of
terms and conditions of permits. Notably, the Director may only vary, revoke
or specify a term or condition if satisfied it is in the interests of public health
to do so.
Section 56H:
Establishes a method and the basis on which the Director may revoke or
renew a permit. The Director may refuse an application to renew or grant
the renewal for a period of up to 3 years.
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Section 56I:
Enables the Director to approve training courses for people seeking to supply
needles and syringes on behalf of a permit holder. A person who successfully
completes a course is issued with a certificate valid for a period of three
years.
The Director also has the capacity to cancel a certificate if the training was
inadequate or no longer considered adequate; or the person is not a suitable
person to be authorised to supply needles or syringes.
Section 56J:
Enables the Director to approve service standards for permit holders in
relation to the supply of needles and syringes, and establishes the matters
that may be specified in the service standards.
Section 56K:
The purpose of these provisions is to protect persons possessing and
supplying injecting equipment from prosecution for certain offences so as not
to undermine the purpose of the needle and syringe program:
mere possession won’t constitute an offence;
nor will possession of any trace element of a substance in the used
equipment, or supply of that equipment for disposal; and
supplying information and unused equipment that has been provided
under the needle and syringe program is not itself an offence, nor does
it make a person an accessory to particular offences or crimes.
Similar provisions have already been in existence for permit holders under
the HIV/AIDS Preventive Measures Act 1993 but in this Bill the protection has
been extended to include peer distributors – that is, people re-supplying
equipment and information originally supplied under a permit.
Section 56L:
Creates two offences. Subsection (1) establishes a universal obligation on
persons in possession of a needle or syringe to take all reasonable care and
precautions to avoid risk to the life, safety or health of other persons that
may be caused by a needle or syringe. Subsection (2) extends this obligation
to those persons who no longer have possession, that is: to a person who
abandons, discards or seeks to dispose of a needle or syringe.
Clause 23 Repeals section 61 (disclosure of information relating to a notifiable disease)
as section 147 contains provisions for the disclosure of all identifying
information collected for the purposes of the Act.
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Clause 24 Amends section 62 to include the power for a court to close the court in any
proceedings relating to a notifiable disease if satisfied it is in the public interest
to do so. The court may do so of its own motion or on the application of the
Director of Public Health or a party or witness in respect of the proceedings.
This provision transfers and revises court closure provisions currently
included in the HIV/AIDS Preventive Measures Act 1993.
This compliments the existing power of the court at section 62 to prohibit or
restrict the publication of any part of proceedings relating to a notifiable
disease if satisfied it is in the best interest of a party to the proceedings to do
so. This is extended to include the best interests of a witness in respect of
the proceedings. Again, the court may make such an order of its own motion
or on application by the Director, a party or a witness in respect of the
proceedings.
Clause 25 Amends section 67B to ensure it is clear that 'private premises' designated by
the occupier, and enforceable, as smoke-free areas under the Act do not
include premises used for domestic purposes. The amendment also makes it
clear that public streets may be designated as smoke-free. This reinstates
councils’ ability to designate a street it occupies as smoke-free, a power
inadvertently removed in a previous amendment.
Clause 26 Amends section 67I to enable the Director of Public Health to approve, on
conditions, designated smoking areas at public events that have been
declared by the Director as smoke-free under the Act.
Clause 27 Amends section 70 to permit tobacco advertising on packets or packaging if
it is in accordance with relevant guidelines. This provision is intended to
provide the head of power for guidelines to be issued which permit the
display of a price board in retail outlets at the point of sale. The ban on
advertising on tobacco packets will remain.
Clause 28 Amends section 74C so that a tobacco seller’s licence cannot be issued in
connection with a public event (elevating this requirement from subordinate
legislation).
Clause 29 Amends a heading.
Clause 30 Contains definitions relevant to Part 6 of the Act.
Clause 31 Amends a heading.
Clause 32 Amends the provisions relating to the notification of a threat or likely threat
to public health posed by water. The persons required to notify has not
changed, however instead of initially notifying the Director of Public Health,
some persons are required to notify the relevant council so the council
(generally through its Environmental Health Officer) can assess the risk and
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advise the Director of the nature of any threat or likely threat to public
health.
Clause 33 Inserts a new Division into Part 6 that establishes a framework for water
quality auditors.
Section 129A:
Re-inserts the existing obligation to manage water so it does not pose a
threat to public health.
Section 129B:
Introduces a more specific head of power for guidelines issued by the
Director of Public Health in relation to drinking water quality. A new head of
power permits the Director to require a person managing or in control of
water to organise for an approved water quality auditor to audit and report
on its drinking water quality management plan and the bodies of water to
which the plan relates. The Director has consulted on draft guidelines
imposing this obligation on Tasmania’s regulated entity (TasWater).
Section 129C:
Establishes the framework for the approval of a natural person as a water
quality auditor. An approval remains in force for 12 months.
Section 129D:
Provides for the variation of the water quality auditor approval.
Section 129E:
Provides for the suspension and cancellation of the water quality auditor
approval.
Section 129F:
Sets out the duties of a water quality auditor.
Section 129G:
Sets out when the water quality auditor is taken to have a conflict of interest.
The Director may refuse to grant, or suspend or cancel the approval of a
water quality auditor if he or she has a conflict.
Section 129H:
Requires the Director maintain a publicly available list of water quality
auditors.
Clause 54:
Clause 54 of the Bill contains review rights in relation to an application, a
decision to impose or vary conditions, or to suspend or cancel an approval.
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Clause 34 Contains an administrative amendment not affecting the substantive
operation of section 130.
Clause 35 Contains an administrative amendment not affecting the substantive
operation of section 131.
Clause 36 Amends a heading.
Clause 37 Improves the drafting of section 133(1), without changing its effect, and
inserts two new subsections so it is clear:
a person supplying water from a private water source as part of a
rental agreement is not required to register with a council – whether
it be a long-term residential lease or a short-term holiday stay; and
a food business registered with a council under the Food Act 2003
who supplies water from private water source as part of that
business, is not required to also register under the Public Health Act
1997 as a private water supplier.
Clause 38 Makes minor amendments to section 134.
Clause 39 Amends section 135 to expand the matters a council is to have regard to
when considering an application from a person to be registered a supplier of
water from a private water source.
Clause 40 Makes minor amendments to section 136.
Clause 41 Inserts a framework for the renewal of registration as a supplier of water
from a private water source, which mirrors the initial application framework.
Registration is valid for up to 12 months.
Clause 42 Makes minor amendments to section 136A.
Clause 43 Introduces a new requirement for suppliers of water from a private water
source to take action, in accordance with guidelines issued by the Director of
Public Health, if water it supplies is, or is likely to become, a threat to public
health. This mirrors the existing obligation on the regulated entity and
councils and which is proposed for water carriers.
Clause 44 Makes drafting changes to section 136B not affecting its substantive
operation.
Clause 45 Makes consequential changes to section 136C arising from the additional
matters a council is to consider when assessing a registration application
(under clause 39; section 135).
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Clause 46 Inserts a new Division into Part 6 that establishes a framework for water
carriers, which mirrors the framework for suppliers of water from a private
water source: water carriers must be registered with the relevant council
(where the majority of vehicles are stored – registration with multiple
councils is not required); councils must have regard to the same application
assessment criteria; a council is to issue a written certificate on registration; a
council may renew, vary or cancel a registration; registration is valid for up to
12 months; a water carrier must supply the water in a manner that does not
pose a threat to public health and in accordance with registration conditions
and guidelines issued by the Director of Public Health; and must take action,
in accordance with guidelines, if water it supplies is a threat or likely threat to
public health.
Clause 47 Amends section 137A so information as to whether a person is an Aboriginal
or Torres Strait Islander or both, and unique identifying numbers, can be
recorded on the Cervical Screening Register.
Clause 48 Introduces a revised section 147 so it is clear the provision applies to
information from which the identity of a natural person (subsection 1), or a
business or premise (subsection 4), is reasonably ascertainable.
Both subsections are substantially the same.
The new aspects of section 147 provide more detailed heads of power for
the release of information.
Rather than relying on the general provision that permits the release of
information for a purpose authorised or required by the Act, there are now
specific provisions permitting the release of information during the diagnosis,
detection, treatment, notification, investigation, prevention and management
of a notifiable disease or contaminant; and managing a threat or likely threat
to public health.
The provision permitting disclosure to a medical practitioner involved in the
treatment of a person has been extended to include persons involved in the
diagnosis, clinical assessment or counselling of the person.
Clause 49 Amends section 148, granting a court the power to order a person provide
information to the Director of Public Health if found guilty of failing to
comply with a requirement of the Director to do so.
Clause 50 Repeals section 149 prohibiting the collection and recording of information
otherwise than in accordance with guidelines issued under the Act. This has
been superseded by the Personal Information Protection Act 2004.
Clause 51 Makes drafting changes to section 153 not affecting its substantive operation.
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Clause 52 Introduces offences against water quality auditors.
Clause 53 Inserts review rights in relation to the needle and syringe program.
Clause 54 Inserts review rights in relation to the designated smoking areas and water
quality auditor provisions.
Clause 55 Makes minor amendments to the review rights at section 163A, relating to
the water provisions.
Clause 56 Inserts review rights in relation to water carriers.
Clause 57 Clarifies the scope of the Director’s power to issue guidelines.
Clause 58 Introduces an obligation on the Secretary of the Department to ensure a
person quarantined, placed in isolation or required to stay in a particular
place by the Director of Public Health is given reasonable opportunities to
communicate with the person’s lawyer or doctor.
Clause 59 Makes minor drafting amendments to section 196, and allows the Director to
commence a guideline at a specified future date.
Clause 60 Inserts transitional provisions.
Clause 61 Makes minor drafting amendments to Schedule 1.
Part 4 – Legislation Repealed
Clause 62 This clause is the substantive provision that repeals the legislation listed in
Schedule 1 – the HIV/AIDS Preventive Measures Act 1993.
Part 5 - Repeal of Act
Clause 63 This is a standard clause repealing the Amendment Bill, as the substance of
the Bill is incorporated into the relevant Act(s) on commencement.
Schedule 1 Lists the legislation repealed by Clause 62 – the HIV/AIDS Preventive Measures
Act 1993.
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