The Public Health Act 2010 (NSW) passed Parliament in 2010, with most of the provisions of the Act commencing in 2012. It was enacted following an extensive review of the now repealed Public Health Act 1991. The 2010 Act carried over many of the provisions of the 1991 Act but also included a range of new provisions designed to better protect public health in NSW.
Section 136 of the Public Health Act 2010 (NSW) provides that a review of the Act must be held 5 years after assent of the Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
The review is currently underway, with a report to be tabled in Parliament within 12 months from the commencement of the review. Preliminary submissions to the review were sought from key stakeholders on 1 October 2015. Their submissions have been considered in developing the Public Health Act 2010 (NSW) review discussion paper .
Submissions on issues raised in the Discussion Paper or on any other aspect of the Public Health Act can be made in writing and directed to:
Health Protection NSW
NSW Ministry of Health
Locked Bag No. 961
North Sydney NSW 2059
The closing date for comment is 3 June 2016.
Focus of the Review
Specific comment is called for in the discussion paper on the following matters:
The Objectives of the Act
- Whether the objectives of the Public Health Act set out in s 3 are valid and appropriate.
- Whether s3 should include a new objective relating to monitoring by NSW Health of diseases and conditions affecting the people of NSW.
Local Government Role
- Whether sections 3 and 4 of the Act adequately recognise the role of local government in the regulation of public health.
- Whether a compliance scheme should be established as part of a quality assurance program to ensure safe supply of drinking water, and if so , whether the compliance regime should involve a penalty for non-compliance and/or the ability to issue improvement notices for non-compliance
- Whether the Act should be amended to recognise the role of local government authorities in relation to the regulation of private water suppliers and water carters.
Skin Penetration Procedures
- Whether the definition of skin penetration should include all procedures that penetrate a mucous membrane;
- Whether there should be additional regulation to limit people who can perform high risk skin penetration procedures such as eyeball tattooing to relevant registered health practitioners.
Responsibility for regulated systems (prevention of Legionnaires Disease)
- Whether the Act should be amended to ensure that the owner of a tenanted building, or the appointed building manager, is considered the occupier for the purposes of the provisions relating to regulated systems (such as air-handling systems; water-cooling systems; etc). (This is particularly relevant when buildings are multi-tenanted to ensure proper maintenance of such systems to avoid such things as legionnaires disease).
- Whether the Act should be amended to clarify that the definition of public swimming pool applies to a pool in a residential premises where the pool in question is used by members of the public as part of a commercial undertaking by the occupier of the premises (eg. a swim school).
- Whether the Act should be amended to give the Secretary an express power to arrange for another person or body (eg. a Commonwealth disease register) to undertake specified public health actions in respect of notifications of a particular scheduled medical condition or notifiable disease (eg. Creutzfeld-Jacob disease).
- Whether notification provisions in ss53, 54, and 55 pertaining to certain diseases or conditions should be amended to enable other facilities to lodge notifications, and to enable a broadening of the provision of additional information.
- Whether HIV notifications to the Secretary include the person’s name and address.
- Whether any additional protections should be included in the Public Health Act relating to information held by the Secretary regarding HIV notifications, and if so what they should be.
- Whether s56 should be amended to remove any restrictions on including a person’s identifying details in a pathology request testing for HIV.
- Whether s56(4)(b) should be amended to allow for information about a person’s HIV status to be disclosed for the purpose of providing medical or health care (with such information being subject to the Health Records and Information Privacy Act).
Offence relating to disclosure of sexually transmitted infection
- Whether s79 should be deleted from the Act, noting s79 creates an offence for a person with a sexually transmitted infection to have sex with another person unless the person informs their partner of the risk of transmission of the infection prior to sexual intercourse and the partner voluntarily accepts the risk – subject to the defence of reasonable precautions being taken to prevent transmission of the infection. (NB. removal of s 79 removal of s79 would not affect the criminal code provision of intentionally or recklessly causing grievous bodily harm, through the transmission of a grievous bodily disease.)
Responsibilities of persons with, or at risk of, infectious disease
- Whether it is appropriate to include a provision setting out the expected responsibilities of a person with an infectious disease, including an STI, as well as those of a person who is at risk of contracting an infectious disease. (Similar to provisions in Victorian Public Health Act).
Matters relating to Public Health Orders
The Chief Health Officer can make a public health order in respect of a person if satisfied on reasonable ground that: the person is suffering from a Category 4 or 5 condition; and because the way the person is behaving, or as a consequence of the condition, the person is a risk to public health. A public health order, among other things, can require a person to be detained and/or treated.
(Note Category 4 and 5 conditions are listed in Schedule 1 of the Act)
Comment is invited under the review as to whether:
- the current powers for public health orders should be extended to include high risk contacts of a person with a Category 4 condition, and if so, whether additional protection be included in the Act to appropriately protect the rights of persons who have been in contact with a person suffering from a Category 4 condition;
- whether the Act be amended to allow a public health order to be made requiring a person with a Category 4 condition to be detained while infectious and/or in order to receive treatment; and
- whether there is a need for greater transparency requirements in the Act relating to public health orders that have been made.
Vaccine Preventable Diseases
- Whether existing provisions relating to vaccine preventable diseases should be extended to high schools, including requirements on principals to request and hold vaccination records, and the ability of public health officers to exclude unvaccinated children during an outbreak should be extended to high schools.
- Whether the conscientious objector exemption to enrolment in a childcare facility from the Act should be removed, such that children who are not vaccinated due to their parents’ conscientious objection cannot enrol in child care.
- Whether the Act should be amended to allow an unvaccinated child whom a public health officer reasonably believes to have come into contact with a vaccine preventable disease to be excluded from school or child care during the incubation period of the disease, regardless of whether there is an outbreak at the school or child care facility that the child attends.
Public Health Registers
- Whether sections 97 and 98 should be amended to claryify the types of registers or databases that may be set up relating to scheduled medical conditions or notifiable conditions under the Act
Public Health Inquiries
- Whether s106 of the Act should be amended to give the Secretary a power, following a public health inquiry, to direct a person or organisation take action to mitigate the risk to the public; and if so, what limits, and in what circumstances should such a power be exercised.
Regulation of the Disposal of Bodies
- Whether it is still appropriate for the Public Health Act 2010 to regulate the work, health and safety aspects of the disposal of bodies and the regulation of cremations, interment and exhumation preparation rooms, equipment and apparatus in mortuaries, crematories and cemeteries (where these are unconnected to public health) , given the provisions in the Work Health and Safety Act 2011 and the Cemeteries and Crematoria Act 2013.
Public health laws play an important role in establishing practices, and setting out requirements, to protect the public’s health.
The Health Department notes:
The Public Health Act is an important Act that has the objectives of protecting public health, by promoting, and improving public health and controlling the risks to public health, particularly in relation to the spread of infectious diseases.
It is important that the provisions of the Act support these objectives in order to protect the health of individuals and the community as a whole. Overall, the objectives of the Act appear to be appropriate and the provisions of the Act are appropriate for securing the objectives. However, [it is important to consider] whether there should be a number of changes to the Act to ensure that the Act continues to work effectively and that NSW Health has the right tools to control public health risks in order to better protect the public.