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PUBLIC HEALTH AND WELLBEING ACT 2008 - SECT 165BJ

Detention Appeals Officer must decide applications

    (1)     This section applies if an application in respect of a decision is referred to a Detention Appeals Officer under section 165BI(5).

    (2)     Subject to subsection (5), the Detention Appeals Officer must use their best endeavours to decide the application, and advise the applicant in writing of the decision, the reasons for it and the review rights available to the applicant within 72 hours after the application was received by the Detention Appeals Registrar or within such longer period as is requested by the applicant.

    (2A)     Without limiting subsection (2), the advice under that subsection must include an explanation of the following rights that the person has, or may have, and the processes in respect of those rights—

        (a)         the right to complain to the Ombudsman under the Ombudsman Act   1973 ;

        (b)     the right to make a complaint under section 185 of this Act;

        (c)     the right to seek review in a court.

    (3)     In deciding the application, the Detention Appeals Officer

        (a)     must consider the information included in the application; and

        (ab)     may consider any documents and other information relied upon by the authorised officer who detained the person or extended the detention of the person under section 165B(1)(b) or 165BA(1)(b) and may consider any other information in relation to the person's detention; and

        (ac)     must take reasonable steps to contact the applicant in relation to the application; and

        (b)     may consider any other matter the Detention Appeals Officer considers relevant, including but not limited to general information provided to the Detention Appeals Officer in relation to risks to public health; and

        (c)     may make such further inquiries and seek such further information in relation to any aspect of the application as the Detention Appeals Officer thinks fit including, but not limited to, making inquiries of or seeking information from persons with expertise in public health.

    (4)     The Detention Appeals Officer may decide—

        (a)     not to vary the person's detention; or

        (b)     subject to subsections (5), (6) and (7), to vary or cease the person's detention.

    (5)     A Detention Appeals Officer must not vary or cease a person's detention under subsection (4)(b) unless the Detention Appeals Officer has consulted and considered the advice of the Chief Health Officer about the proposed variation or cessation.

Note

The Chief Health Officer can delegate powers, duties and functions: see section 22.

    (6)     If a Detention Appeals Officer consults the Chief Health Officer about the proposed variation or cessation of a person's detention, the Chief Health Officer must make their best endeavours to provide oral or written advice about the proposed variation or cessation within 24 hours.

    (7)     If the Chief Health Officer provides oral advice under subsection (6), a written record of the advice must be prepared as soon as practicable—

        (a)     by the Chief Health Officer; or

        (b)     by the Detention Appeals Officer, who must provide a copy of the written record to the Chief Health Officer for endorsement by the Chief Health Officer.    

S. 165BL inserted by No. 53/2021 s. 12.



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