The phased commencement of the Public Health Act 2011 (SA) (SAPH Act) is now complete. The last provisions of the SAPH Act came into operation on 16 June 2013, and repealed the remainder of the Public and Environmental Health Act 1987 (SA) (PEH Act).
Given the full commencement of the Act, we consider it timely to provide a brief refresher of some of the practical differences between the former PEH Act framework and the new SAPH Act framework.
How does the new legislative framework fit together?
The SAPH Act establishes and outlines the broad duties, functions and powers of persons and authorities.
Various sets of Regulations are made pursuant to the Act. While some Regulations made under the PEH Act have been transferred over to the SAPH Act with only minimal amendments, councils must note that, as previously indicated to our Briefly readership, the former Public and Environmental Health (Waste Control) Regulations 2010 have undergone more extensive revision and have been replaced by the South Australian Public Health (Wastewater) Regulations 2013.
Guidelines, policies, protocols and codes of practice developed by the Minister and the Chief Public Health Officer constitute a third level of the public health legislative framework. These instruments perform various functions, including guiding authorities in the application of the SAPH Act’s overarching principles, identifying matters which constitute risks for public health and prescribing considerations which must be taken into account in making certain decisions.
How is notice scheme different under the SAPH Act?
Under the PEH Act, councils had a number of specific different notices at their disposal which could only be issued in specified circumstances. Those notices were provided for by Part 3 of the PEH Act. Such notices may no longer be issued, and any notices under the PEH Act should be reviewed to ensure they can still be enforced by the council.
This former scheme has been replaced by the more flexible general notice power under the SAPH Act. The new power allows councils to issue a person with a general notice under Section 92(1) of the SAPH Act for the purpose of securing compliance with a requirement imposed by the SAPH Act or for the general purpose of averting, eliminating or minimising an actual or perceived risk to public health.
Just as under the PEH Act, the council may carry out the requirements of a SAPH Act notice and may recover the costs of such works and actions when a person defaults on such a notice.
Also like the position under the PEH Act, a person who has been issued with a notice under the SAPH Act may appeal against the notice to a dedicated review panel, and that person or the council may then appeal to the District Court against the decision of the panel. However unlike the position under the PEH Act, a person who has been issued with a notice under the SAPH Act may alternatively appeal directly to the District Court without first appealing to the review panel.
How are the powers of Authorised Officers different under the SAPH Act?
The powers of Authorised Officers were formerly provided by Part 5 of the PEH Act. Section 47 of the SAPH Act virtually replicates those powers, with one important modification which effectively expands the powers of Authorised Officers: under the SAPH Act, a person may no longer refuse to answer a question of an Authorised Officer on the grounds of self-incrimination. This will make conducting investigations under the SAPH Act simpler, quicker and more effective.
In addition to these powers, Authorised Officers also gain certain ‘emergency powers’:
- Where an Authorised Officer considers that ‘urgent’ action is required, they may issue an ‘emergency notice’ under Section 92(6) of the SAPH Act imposing requirements on a person in the same way that a council can through a general notice under Section 92(1) (it should be noted that an emergency notice expires after 72 hours, unless confirmed in writing by the council)
- Where an authorised officer considers that ‘immediate’ action is required, they may take action or cause action to be taken under Section 94(1) by exercising their powers under Section 47 of the SAPH Act and/or the additional powers of entering and taking possession of vehicles or premises, and seizing, retaining, moving, destroying or otherwise disposing of any substance or thing.
The maximum penalty for hindering, failing to adequately answer or failing to assist an Authorised Officer in exercise of their powers generally has changed from $4,000 (or 1 year imprisonment) to $25,000 (with no provision for imprisonment). The maximum penalty for failing to adhere to an emergency notice is also $25,000.
In accordance with Section 46 of the SAPH Act, Authorised Officers must now be issued with identity cards in a form approved by the Chief Public Health Officer. This new requirement replaces the certificate of authority required under Section 7 of the PEH Act. Authorised Officers are required to produce their identity card at the request of any person in relation to whom the Authorised Officer intends to exercise a power.
Councils should review all delegations and authorisations and ensure that Authorised Officers are properly authorised under Section 44 of the SAPH Act.