Review of the Health Act 1911

The EHA (Australia) is a national association of professionals qualified in science and related fields concerned with human interaction on the environment and the potential health risks that are associated with that impact, both positive and negative. The EHA (Australia) membership is open to environmental scientists and professional officers in many capacities as well as for people with a health background interested in environmental fields.

The EHA (Australia) is a federated, autonomous incorporated organisation that was formed to enable members to express their concerns across a range of public health and environmental concerns. There are seven key areas of special interest to members: Professional Management, Built Environment, Emergency Management, Indigenous Health, Food Safety, Safety & Health and Sustainability. While these areas form a discrete focus for members, the very nature of the interaction between man and the environment means that there is a degree of overlap across these areas.

The EHA(Australia) agenda for responsible and sustainable development or urban and rural communities focuses on the development of public and local government policy for an environment supportive of competitiveness, investment, innovation, employment growth and harmonised with international best practice.

The EHA(Australia) provides members the opportunity to advance ideas and to provide submissions on public policy with a cohesive and credible voice for the environmental science and health professional, to advance policies and comment on issues relevant to the community and to promote a responsible and accountable approach to management of environmental health and safety concerns.

The EHA(Australia) seeks to work with all levels of governments across Australia in taking a proactive and strategic approach to development public policy, recognising the value and importance of experienced professionals in the field to be in an informed position to comment on and, suggest pragmatic solutions to, the opportunities and threats posed by changing consumer demands and limited government capacity and resources.

Further information on the objectives and opportunities provided by EHA(Australia) is available on the internet at http://www.envirohealthaustralia.com.au

The EHA(Australia) recognise the need for the effective public health legislation.

To this end the EHA(Australia) is using this submission to identify a number of key issues which require attention as part of the review process in order to achieve a better outcome for the community.

The Association herewith supplies its answers to the questions posed in the Department of Health discussion paper.

Should the “remit” of a new Health Act be extended to include health promotion and health advancement campaigns and the “lifestyle” and non-communicable disease questions that are often the subject of these campaigns? (4)

Yes

If not, why not? (5)

N/A

If yes, how should the new Health Act formally support these programmes? (6)

It should allow the EDPH to warn the public about lifestyle diseases and advocate ways of responding to them.

This should be done within the context of general health promotion principles without the need for mandatory legislative requirements. However the requirement for local governments (perhaps above a certain population size) to develop and adopt community well being programs as part of a multi faceted approach to community health could be seen as an advantage. The Victorian model of requiring Municipal Public Health Plans (MPHPs) appears to have merit and could incorporate the requirements of Environmental Health Plans (EHPs).

Application of mandatory legislative requirements should also be reserved to issues that require urgent public health intervention.

The Discussion paper envisages that the current dual responsibility for public health in Western Australia, vested in Local Government and the State will continue. Do you agree with this proposition? (7)

Yes

Comments (8)

The cooperation between State and Local Government agencies is essential for the effective coordination and implementation of public health controls throughout Western Australia.

The options presented in this paper represent new policy approaches to public health which are outcome oriented and performance based, will you or your organisation require different type/style of support from the Department of Health (DoH) to implement that model of legislation? (9)

Yes

If so, what should be an appropriate model of support? (10)

As always the introduction of new legislation brings with it a number of questions with respect to the ability of the enforcement body (in this case Local Government) to implement the provisions of the said legislation efficiently and effectively.

The Department of Health needs to play a key role in ensuring that the proposed legislation is enforceable at law, and the expected outcomes of the legislation are practicable, realistic, and achievable.

Consideration must be given to the resources of Local Government and the adequacy of these resources in implementing new legislation.

The Department of Health must play a key role in providing guidance, direction and support to Local Government.

Issues of adequate resources and associated implementation of Public Health controls must be addressed through mandatory reporting requirements by Local Government agencies to the Department of Health on a regular basis.

The development of an Environmental Health Plan enshrined in legislation for adoption by Local Government agencies may be one method of ensuring uniform application of public health principles throughout the state.

The Department of Health will need to play a key role in providing training and development opportunities for public health professionals working in Local Government charged with carrying out the provisions of the Health Act and other public health legislation.

Do you agree with the need for Department of Health to assist Local Government implement the new approaches and practices (risk management) as a result of a new Public Health Act? (11)

Yes

What do you see this role as being and how to best meet these needs? (12)

The Department of Health needs to play a role helping Local Government in introducing the new Public Health Act to the wider community.

The Department of Health needs to provide regular training to Local Government officers charged with the enforcement of the new legislation.

The Department of Health needs to play a role in providing timely expert advice to Local Government officers on the interpretation of the legislation.

The Department of Health needs to develop and implement guidance/reference materials for use by Local Government officers on areas such as those of Risk Management, Sustainability, Health Impact Assessment.

Should the Act attempt to clarify and assign responsibility and liability for risk management on the “owners of risks”? (13)

Yes

Comments (14)

General “Duty of Care” provisions should apply to actions of all individuals. Persons should be responsible for managing risk associated with their actions and be held responsible and liable for any adverse health outcomes associated with their activities.

There should be exemptions to these provisions for persons who are insane, children who are below the responsible age and for persons who are acting in an emergency to prevent a danger to human life.

Should the public health powers, functions and responsibilities of Local Government be spelt out in a new Health Act in more detail then currently exists? (15)

Yes

If so, what should they be? (16)

The development of new legislation brings in to question the role of all of the relevant enforcement agencies. Who is responsible for what? Who are they responsible to? How are issues of public health concern to be addressed? To what extent? Etc etc.

The powers, functions, and responsibilities of all of the key players must be clearly specified in the legislation. The powers must be flexible to allow for their use in non traditional, emerging situations. They must be written in a manner which is easy to interpret by the enforcement agency, the alleged offender and if necessary the magistrate.

The powers must have the ability to effectively implement public health controls. These powers must be able to stand up to legal scrutiny in a court of law and must be linked to penalties that upon a conviction will truly reflect the importance of public health to our community.

The functions and responsibilities of all the key players must also be clearly specified in the legislation. This will ensure that these functions and responsibilities are adhered to. This will lead to a uniform application of public health standards throughout all of the relevant jurisdictions.

The provisions of the Health Act should prevent duplication between relevant enforcement agencies and statutes. For example the issue of environmental pollution (including noise) are already addressed by the Environmental protection Act and would not necessitate public health controls.

The new Health Act should address the issue of adequate resource allocation. It should allow for the provision of adequate resources at both the state and local government levels to ensure that the discharge of the powers and responsibilities of all of the enforcement agencies is undertaken in a timely and effective manner.

Local Governments should be required to formally submit an annual report to the Principal Statutory Officer (Executive Director of Public Health) stipulating the discharge of their duties in comparison to a mandatory environmental health plan.

Finally what is of paramount importance is that the powers that currently exist through the Health At 1911 to Environmental Health Officers should not be diminished. The protection of EHOs in undertaking their duties should be retained.

Should the powers and responsibilities of the State (through the minister or other central statutory office holders) be spelt out in a new Health Act in more detail then currently exists? (17)

Yes

Comments (18)

As per answer to question 16

Should the Act clearly make the minister responsible for the general administration and operation of the Act? (19)

Yes

Comments (20)

The minister should be responsible for the general direction of public health policy as set by the government of the day. The minister should not have the day to day control, management and operation of the Act.

Should the responsibilities be spelt out in more detail then currently exists in section 7? (21)

Yes

Comments (22)

The new Public Health Act should detail the responsibilities, powers and limitations of powers placed on the minister.

Should the minister’s powers be constrained in any way to reinforce the independence of any other statutory office holder specified in the Act? (23)

Yes

Comments (24)

The new Public Health Act should provide protection for specified statutory officers that would enable them to carry out provisions of the Act without political interference. Cases where there exists a need for urgent public health intervention must not play second fiddle to political correctness.

Should any direction given by the minister to a statutory officer holder be required to be in writing and or subject to inclusion in the Departments Annual Report to Parliament? (25)

Yes

Comments (26)

Any direction by the minister to a statutory office holder should be in writing. Any direction or decision by the minister overriding the statutory office holder in any way should be subject to inclusion in the Departments Annual Report to Parliament.

Should there be a formal process in a new Health Act for having the Executive Director of Public Health assume the public health responsibilities of a local government when exceptional circumstances require it? (27)

Yes

If so, should there be a formal process or inquiry prior to that transfer occurring? (28)

Yes

Comments (29)

The Executive Director of Public Health must satisfy himself that the relevant local government has failed to discharge its responsibilities before assuming the responsibilities and powers of a local government.

The Executive Director of Public Health must have broad powers of enquiry including the ability to have access to documents and to require witnesses to appear and testify under oath.

The Executive Director of Public Health should be the sole and final judge with respect to the decision when the assumption of the responsibilities of a local government is warranted.

Given that the crown and its instrumentalities and agencies will be bound by a new Health Act, is there value more generally in incorporating a public health equivalent of the staged environmental improvement plans for areas, particularly remote areas or premises in remote areas, that cannot immediately comply with the requirements of new public health legislation? (30)

Yes

Comments (31)

There should be a staged compliance phase in period for communities and premises in remote areas to bring them in to compliance with the new Health Act over time.

This phase in period should be determined by consultation between the relevant local government and state health department authorities. This would also include many other Government and Non-government agencies, in particular in indigenous communities.

However the implementation of a staged phase in period should in no way preclude enforcement action under the Health Act in circumstances which require urgent public health intervention e.g. to prevent the spread of disease by improving sanitation etc.

Is there a need to clarify relationship with other Acts particularly if public health is not being adequately protected? (32)

Yes

Comments (33)

The protection of public health is a fundamental responsibility of those governing our society.

Public health law must reflect the importance of maintaining and improving public health standards within the community.

As such the new Health Act should be pre-eminent amongst other legislation and override other Acts when issues relating to public health are under consideration.

Is there value in the new Health Act defining “health”? (34)

Yes

Comments (35)

It is seen as desirable to define “health” in the new Health Act so that the meaning/intent of the new Public Health Act can be more readily understood.

However a new definition of “health” combined with the new duty to protect health may set unreasonable expectations on enforcement agencies such a Local Governments.

Therefore any new provisions relating to the definition of “health” in the new Health Act must be supported by clear guidelines that set boundaries on the scope and application of the Act within the context of realistic expectations placed on Local Governments and the associated issues such as resource and liability implications.

Is there value in the new Health Act defining “public health”? (36)

Yes

If so, what ideas would it include and how, if at all, might it advance the administration of the new Act? (37)

It is seen as desirable to define “public health” in the new Health Act so that the meaning/intent of the new Public Health Act can be more readily understood.

However a new definition of “ public health” combined with the new duty to protect health may set unreasonable expectations on enforcement agencies such a Local Governments.

Therefore any new provisions relating to the definition of “public health” in the new Health Act must be supported by clear guidelines that set boundaries on the scope and application of the Act within the context of realistic expectations placed on Local Governments and the associated issues such as resource and liability implications.

Should a set of objects be placed in a new Health Act? (38)

If so, what should they contain? (39)

N/A

Comment is sought on the following options. The principal statutory office holder under the new Health Act should be the Commissioner of Health (Director General of the Department). (40)

Comments (41)

The Director General of the Department should have the day to day control and management of the Department but the statutory powers and responsibilities under the Health Act should rest with an appropriately qualified principal statutory officer such as the Executive Director of Public Health.

Furthermore the position of the principal statutory officer should enjoy protection under the Act, which would enable him to make statutory decisions on public health issues with autonomy, free of political interference.

The principal statutory office holder under the new Health Act should be the person responsible for the day to day operation of the functions of the Department, who may or may not be a registered medical practitioner. (42)

Comments (43)

The principal statutory office holder under a new Health Act should continue to be the Executive Director of Public Health, a person who must be a registered medical practitioner, with the person responsible for administering the policy and management functions of the Department potentially being a separate person. (44)

Yes

Comments (45)

Should the powers and duties of the principal public health office holder be spelt out (as in some other jurisdictions) in a general section in a new Health Act? (46)

Yes

Comments (47)

The powers and duties of the principal public health office holder (Executive Director of Public Health) should reflect the statutory responsibilities of that position.

As such they should be outlined in the new Health Act in a comprehensive manner designed to allow for quick and effective action by the EDPH on public health issues.

Should a new Health Act incorporate statutory advisory committees? (48)

Yes

If so, which areas of its operation would be enhanced by the creation of an advisory committee? (49)

The Health Act should allow for the formation of a number of advisory committees whose role would be to advise the department on ways of improving the functions of the enforcement agencies as well as the enforcement tools.

For example, the formation of a Legislation Review Committee. The committee could be made up of officers from local government and state health department officers, legal advisors and representatives from professional bodies.

The role of the committee could be the following;

· Supply comment on adequacy of proposed legislation;

· Identify areas where new legislation is required;

· Prepare/draft new legislation;

· Highlight old or antiquated legislation that needs to be reviewed and repealed.

The committee could at its discretion form further sub committees to look at individual pieces of legislation in detail. Indeed these committees could be instrumental in developing codes of practice, policies and guidelines.

Another committee that could be formed could be that of a Professional Review Board. This committee could consist of practising local government and state health department officers as well as training institution academics.

This committee could be charged with looking at the adequacy of qualifications of people working in statutory positions within the local government and state health department sectors.

This committee could also be charged with the review of local government annual reports, it could advise the EDPH on the adequacy of a local governments performance as measured against the requirements of an environmental health plan.

The committee could make recommendations to the EDPH on minimum numbers of statutory health officials needed to undertake the required work within a local government.

If so, should they only undertake advisory functions? (50)

Yes

Comments (51)

The committees should be limited to an advisory role, charged with reviewing information and submitting recommendations for the consideration of the Executive Director of Public Health.

The consideration of a particular matter by an advisory committee should not preclude the Executive Director of Public Health from taking any action on the matter on public health grounds.

Should there be a general power to create them? (52)

Yes

Comments (53)

There should be a general power in the Health Act allowing for the formation of advisory committees.

Or should they be specifically named in the new Health Act? (54)

Comments (55)

There should be no need to specifically name advisory committees in the new Health Act.

Should a new Health Act provide for a planning process at the local government level? (56)

Yes

If so, how might it work and what might it achieve? (57)

As mentioned earlier, the development and implementation of Municipal Public Health Plans would necessitate the development of a process to address the planning framework at a local level. This could then be used to address emerging public health issues such as health impact assessments and sustainability at a local level.

Importantly this process could be incorporated in to a local government environmental health plan or realistically the EHP could form part of the MPHP. The local government should be required to submit an annual report to the Executive Director for scrutiny to ensure that local government is fulfilling its public health responsibilities under the Health Act.

Should a new Health Act provide for a planning process at State-wide level? (58)

Yes

Comments (59)

The discharge of public health responsibilities by numerous local governments will by its virtue necessitate some form of overall control and guidance by a central body to ensure a consistent approach to public health on an ongoing basis.

Is the current method as provided for in the Health Act 1911 of specifying the qualifications of, and appointing, environmental health officers acceptable? (60)

Yes

Should there be a change to either of these? (61)

Comments (62)

The role of Environmental Health Officers is undeniably a very important one. In many cases they are the eyes and ears as well as the arms and legs of public health.

Issues with the potential to affect public health arise at the local level and require local level intervention in an expeditious and effective manner.

This necessitates the provision of a suitable number of well qualified, trained and motivated staff.

The existing provisions forming part of the Health Act 1911 recognise this.

They do this by providing statutory protections for Environmental Health Officers in the performance of their duties as well as mandating minimum qualification requirements and manner of appointment and dismissal.

Whilst it may be argued that local government should have the flexibility with respect to the number and qualification of officers that it wishes to appoint, such considerations must be weighed against the question of what is best for public health.

To date the existing provisions of the Health Act 1911 have provided some autonomy for Environmental Health Officers to act in the best interest of public health. The best interest of public health potentially may become second rate to self interest should some of these protections be removed.

Similarly a reduction in the qualifications of an Environmental Health Officers or the provision for public health functions to be undertaken by less qualified personnel must be questioned within the context of a good public health outcome.

The traditional role of local government, that of providing a service to the ratepayers and the community is being displaced by a business mentality of maximising profit and minimising cost.

Within this context it comes as no surprise that local government wishes to have more “flexibility” with respect to the appointment and qualifications of public health staff.

The question that needs to be answered is whether such an outcome will be good for public health in general?

Is there a case for the supervisory powers of the EDPH? (63)

Yes

Comments (64)

The Executive Director of Public Health should retain the statutory power to appoint Environmental Health Officers to a local government. Similarly the dismissal and appointment of an Environmental Health Officer should require the approval of the EDPH as is currently the case.

The EDPH should also have broad supervisory powers, including investigating powers to ensure that Environmental Health Officers specifically and the local government generally are fulfilling their responsibilities under the Health Act and still enjoy the confidence of the EDPH.

Should such confidence be lost the EDPH should have the power to suspend the EHO in question. The EDPH should also have the power to require required work to be undertaken in default of a local government and the costs of such work to be charged against the local government in question.

The new Health Act should have provisions allowing the EDPH to seek the suspension of a local government by the Minister of Local Government for failure to perform its responsibilities under the new Health Act.

How should environmental health officers be qualified and appointed? (65)

Environmental health officers should have qualifications suitable to the EDPH. The EDPH should be guided on the adequacy of such qualifications by a Professional Review Board (as per the answer to question 49).

However the overall standard of qualifications required to date should not be watered down or reduced in any way.

The appointment and more importantly the dismissal of an environmental health officer should require the approval of the EDPH.

Should persons (often with specialist skills) working within the Health Department be appointed as authorised officers for the purposes of enforcing a new Health Act at a state level and exercise functions as envisaged in the discussion paper? (66)

Yes

Comments (67)

The appointment of authorised officers with “specialised skills” should be limited to the application of these skills given consideration of the overall qualification level of the person in question as well as the suitability of such qualification in discharging public health responsibilities. Persons who do not posses qualifications at least equal to those of an EHO should not be able to undertake statutory enforcement duties and responsibilities.

Is there a need to continue the Environmental Health Officers Professional Review Board? (68)

Yes

Comments (69)

However the overall standard of qualifications required to date should not be watered down or reduced in any way.

The Professional Review Board should be strengthened and become more proactive to ensure that the skills and knowledge of existing EHO’s is maintained and that employers are supportive of the role of the EHO.

The appointment and more importantly the dismissal of an environmental health officer should require the approval of the EDPH.

And if so, should it be given statutory powers? (70)

Comments (71)

The Professional Review Board should remain an advisory body only.

Should a new Health Act contain a provision for authorised officers that accommodates changing workforce issues balanced with the professional competencies required to adequately protect public health and discharge the duties of the act and subsidiary legislation? (72)

If so, how might this be achieved? (73)

The discussion paper states the following “ It is acknowledged that some activities traditionally undertaken by EHO’s can and are being done successfully by other types of ‘authorised officers’ – often under the supervision of EHO’s or other public health office holders - either in state or local government. The introduction of a confined and often supervised set of responsibilities under the legislation would enhance efficiencies without compromising public health and safety”.

We do not acknowledge anything of the sort. To our knowledge the vast majority of public health officials working within local government are EHO’s with EHO qualifications. The sample of these “other authorised officers” within local government in Western Australia is so small that it brings the validity of the above statement in to question.

Further more what is the point of employing an “authorised officer” if that officer needs to work under the supervision of and EHO in the first place. The work performed by EHO’s requires sound judgement on a broad range of issues and this necessitates a well educated and experienced workforce without limitations to a specific “specialist skill”.

The delineation of duties between an EHO and Authorised Officer would be unworkable and complicated unless there is a clear and precise statement of duties. This problem would be more so in regional areas and may result in Local Governments employing non-EHO’s to undertake EHO duties. This would clearly result in a lower standard to health service. There would also exist a temptation for the Local Government to target Authorised Officers to undertake specific EHO roles.

Should the appointment of a Medical Officer of Health continue as a statutory requirement in the new Act? (74)

Yes

Comments (75)

Whilst medical officers of health do not always play a daily role in public health issues, the availability of a medical officer of health at a local level is very beneficial.

Should the need arise as it has in the past, the medical officer of health has the ability through their statutory role to take immediate action on public health issues on the ground.

This is no more apparent then in remote communities far removed from the metropolitan area of Perth.

Should a new Health Act allow for cost recovery in respect of orders and other statutory functions that might lead up to them such as inspections? (76)

Yes

Local governments already have the ability under the existing Health Act 1911 (Sections 40 and 41, 42) to levy health rates. In essence these should pay for the overall statutory function of local government with respect to public health.

The levying of a general health rate seems an appropriate method of funding local government resources. After all public health is an issue which affects everybody and it can be argued that in fact it is each individual member of the public who benefits from the ongoing inspectorial duties of local government Environmental Health Officers, who in so doing are ensuring the maintenance of good public health standards for our community.

In order for this type of funding arrangement to work properly and adequately cover the costs associated with the provision of a satisfactory public health service by local government there would need to be a level of oversight be a central body such as the Department of Health in order to ensure that the funds sourced by local government where fully spent on the provision of their public health service.

In relation to cost recovery provisions, should this be chosen method of financing local government with respect to resources associated with discharging its public health obligations, the following needs to be given serious consideration;

The cost recovery provisions would need to be very broad indeed in order to allow for recovery of costs associated with all duties, responsibilities and functions of local government officers charged with public health functions including time spent by officers on clerical and office work.

Consideration needs to be also given to those functions that are currently performed by local government EHO’s that do not strictly fall within the auspices of the statutory provisions of the Health Act e.g. Environmental noise control, pursuance of the Unauthorised Discharge Regulations, duties under the Local Government Act and the Caravan Parks and Camping Grounds Act)

Alternatively, are the provisions of Section 6.16 of the Local Government Act 1995 and Section 344C and others (see part 3) of the Health Act 1911 to impose fees and charges sufficient to deal with this issue? (77)

Comments (78)

Neither Section 6.16 of the Local Government Act 1995 nor Section 344C of the Health Act 1911 provide an adequate head of power to charge on a cost recovery basis for costs associated with routine inspections.

The Local Government could be amended to allow for such a charge, but it is believed that cost recovery provisions for costs associated with public health duties should be provided for in a more appropriate place – that being the new Health Act.

Should a new statutory duty to protect public health replace the nuisance provisions as the general remedy for a new Health Act? (79)

Yes

Comments (80)

The existing nuisance provisions of the Health Act 1911 are antiquated and their application is limited to specific scenarios (definition of nuisance – Section 182).

This poses difficulties in addressing issues of public health concern that do not perfectly fit within a specific scenario.

The discussion paper talks about a general duty to protect public health. However the manner in which this duty is expressed in the discussion paper suggests that the overall scope and application of this duty will potentially be much broader then previous nuisance provisions specified by the Health Act 1911,

Whilst in principle this may initially be seen as a good thing a question needs to be asked as to the realities associated with enforcing such a broad legislative requirement on the ground.

What realistic limits will be placed on the scope of the application of this duty or will it apply to everything including things such as the following;

· Speeding on a public road

· Sale of tobacco products to the public

· Sale of alcohol products to the public

· Release of noise in to the surrounding neighbourhood

· Taking children to the beach on a hot day and exposing them to the sun without sunscreen protection.

It is believed that a differentiation needs to be made between issues affecting public health and those affecting public safety.

It is believed that that a concept of risk needs to be adequately defined and there needs exist an ability to declare elements of risk.

Further more the broad duty to protect public health should be supported by guidelines that are quite clear on scenarios where such a duty exists.

Such specific guidelines would allow an easier interpretation and enforcement of the Heath Act with respect to a very broad duty of care requirement.

Consideration needs to be made with respect to resource implications for enforcement agencies charged with the enforcement of a very broad duty of care provision.

Should a new statutory duty to protect public health impose positive obligations? (81)

Yes

If so, what should they extend to and how should they be expressed? (82)

Quite clearly if a person has a duty to protect public health such a duty should not only apply to any action which may have an adverse impact on public health but also any inaction which may result in an adverse impact on public health.

However the application of positive obligations must be worded very carefully to ensure that natural justice is afforded to all persons.

The danger with this principle is that potentially a person may be liable for failing to undertake an action that would prevent an adverse outcome to public health despite the fact that they were not personally aware that such an action was required in the first place.

E.g. consider a person who rents out a house, the tenant allows the house to become unfit for human habitation without the knowledge of the owner. Yet potentially the owner is now liable for failing to act to prevent the condition of the house from deteriorating.

Safeguards need to be implemented to ensure that all persons are fully made aware of their responsibilities and allowed suitable time to discharge these responsibilities before any enforcement action is undertaken.

As previously stated I believe that a differentiation needs to be made between issues affecting public health and those affecting public safety. Further more the broad duty to protect public health should be supported by guidelines that are quite clear on scenarios where such a duty exists.

Such specific guidelines would be easier to interpret and enforce then a very broad duty of care requirement.

Consideration needs to be made with respect to resource implications for enforcement agencies charged with the enforcement of a very broad duty of care provision.

How do you see the above being able to protect the health of those who are incapable of achieving the duty to themselves i.e. the elderly, etc with dementia and for example, whose houses may become uninhabitable or a health hazard to the occupier and or those living near by? (83)

Such issues as specified above are not new and need to be resolved with a level of consideration and compassion, not necessarily legislative enforcement and coercive action.

In many cases the involvement of other agencies such as Aged Care, Family and Child Services, Salvation Army etc are the best method in resolving complex social issues.

Rights of individuals need to be considered and be protected. The basic principles of natural justice should exempt persons not of sound mind or those below the age of responsibility from the general duty of care provisions.

The provisions of the new Health Act should also allow for the required work to be carried out by the relevant local authority in default of the owner or occupier doing so.

In cases such as that specified in this question this could be an option of last result, but in absence of anything else could be used to resolve the public health issue associated with the condition of a dwelling (even if only on a temporary basis).

Should a new Health Act allow for the issuing of guidelines or other advisory documents, which are not mandatory but designed to assist persons in discharge of their statutory duty of care? (84)

Yes

Comments (85)

The broad duty to protect public health should be supported by guidelines that are quite clear on scenarios where such a duty exists.

Such specific guidelines would allow an easier interpretation and enforcement of the Heath Act with respect to a very broad duty of care requirement.

The Department of Health must play a key role in providing guidance, direction and support to Local Government.

The development of guidelines for adoption by Local Government agencies may be one method of ensuring uniform application of public health principles throughout the state.

Should a new Health Act allow the prescribing of specific activities to which the statutory duty applies? (86)

Yes

Comments (87)

Specific activities to which the duty applies should be specified in guidelines. This would allow flexibility for the periodic updating of such activities without the need for a formal amendment of the Health Act.

Are there aspects of the nuisance power that are important for public health but which are covered by the new duty? (88)

Comments (89)

As previously stated it is believed that a differentiation needs to be made between issues affecting public health and those affecting public safety. Further more the broad duty to protect public health should be supported by guidelines that are quite clear on scenarios where such a duty exists.

Such specific guidelines would allow an easier interpretation and enforcement of the Heath Act with respect to a very broad duty of care requirement.

Should the abatement power allow the range of possible uses as specified in the discussion paper? (90)

Yes

Comments (91)

The abatement powers should be sufficiently broad and flexible to allow their use in an effective manner in combating a variety of existing and emerging public health concerns.

The new Act should include the provision for Infringement Notices (on the spot fines) on specific matters to reduce the cost of enforcement of the Act through the Courts.

When should the abatement power be exercisable by the local environmental health officer and when should it be exercisable by the local government? (92)

The abatement power as described in the discussion paper is very broad, it would be difficult to differentiate a cut in point between the powers of the EHO and those of the local government.

Both the local environmental health officer and the local authority should be able to exercise the abatement power in its entirety. This would ensure that matters requiring public health intervention could be dealt with on an expeditious basis without unnecessary time delays.

The current provisions in the existing Health Act appear to be adequate.

Are the supporting provisions in sections 181,183,184 & 185 of the Health Act 1911 relating to dealing with nuisances and costs adequate? (93)

Or should they be strengthened in the new Health Act? (94)

Yes

Comments (95)

The existing nuisance provisions of the Health Act 1911 are antiquated and their application is limited to specific scenarios (definition of nuisance – Section 182).

This poses difficulties in addressing issues of public health concern that do not perfectly fit within a specific scenario.

Whilst in principle this may initially be seen as a good thing a question needs to be asked as to the realities associated with enforcing such a broad legislative requirement on the ground.

What realistic limits will be placed on the scope of the application of this duty or will it apply to everything including things such as the following;

· Speeding on a public road

· Sale of tobacco products to the public

· Sale of alcohol products to the public

· Release of noise in to the surrounding neighbourhood

· Taking children to the beach on a hot day and exposing them to the sun without sunscreen protection.

I believe that a differentiation needs to be made between issues affecting public health and those affecting public safety. Further more the broad duty to protect public health should be supported by guidelines that are quite clear on scenarios where such a duty exists.

Such specific guidelines would be easier to interpret and enforce then a very broad duty of care requirement.

Consideration needs to be made with respect to resource implications for enforcement agencies charged with the enforcement of a very broad duty of care provision.

The powers of the local authority should be strengthened with respect to acting to remedy a nuisance in case of default by the owner/occupier as well as the ability to adequately recover costs associated with expenditure incurred by a local authority in pursuing its obligations under the new Health Act.

The current system of cost recovery via the Fines Enforcement Agency is not satisfactory.

Should there be an offence of risk to health (96)

Yes

If so, should it follow the framework outlined in the discussion paper? (97)

Yes

Comments (98)

The discussion paper acknowledges that the proposed offence clauses are very broad and can apply in a range of contexts where public health is, or might be affected.

I believe that differentiation needs to be made between issues associated with public health and those with public safety.

Similarly duplication of effort should be prevented between government agencies Some government agencies such as the Police Department, Department of Environment, WorkSafe etc are already involved in addressing issues that affect public health.

An all of government approach needs to be taken in relation to the development of the new Health Act and consideration needs to be given to those existing processes and infrastructure that already deal with some of these public health issues.

Consideration needs to be given to the development of guidelines that will give clarity to enforcement agencies on circumstances as to when an offence has been deemed to have taken place and when formal enforcement action is warranted.

The Department of Health must play a key role in providing guidance, direction and support to Local Government.

The development of guidelines for adoption by Local Government agencies may be one method of ensuring uniform application of enforcement provisions of the new Health Act throughout the state.

Consideration needs to be made with respect to resource implications for enforcement agencies charged with the enforcement of very broad offence provisions.

The implementation of a “risk to health” offence could be arranged in a similar manner as the “Unauthorised Discharge Regulations”, where the offence is the discharge to the environment without the need to prove pollution. In a similar manner an offence of “causing a risk to public health” should be enforceable without the need to prove actual harm.

Should it differentiate between “risk to health” and “serious risk to health”? (99)

Yes

If so, how should the differentiation be made? (100)

Clearly there should be a differentiation in penalty provisions between offences of a less serious and those of a more serious nature.

However the question of how to practically differentiate between the two offences in law is not easily answered.

How can one make a determination on the seriousness of an offence where no adverse impact on health has actually occurred but merely had the potential to occur.

Similarly how can a determination on the seriousness of an offence be made when the extent of the impact on health is not readily identifiable e.g. exposure to tobacco smoke, asbestos fibres, chronic exposure to chemicals/fumes in the workplace.

Unless there is a provision of clear “offence” guidelines by the Department of Health and unless the guidelines clearly differentiate between the two offences there will always exist an uncertainty not only as to the seriousness of the particular offence in question but also as to whether an offence exists at all in the first place.

Penalty provisions should be significantly strengthened in the new Health Act

Should there be a defence as envisaged in the discussion paper? (101)

Yes

Comments (102)

The penalty provisions should be strengthened in the new Health Act.

A significant increase in penalties should be offset by the provision of a statutory defence similar to the model described in the discussion paper

Onus of proof in case of a statutory defence should lie with the defendant at all times.

Should there be sentencing principles? (103)

Yes

And is so, what should they be? (104)

The sentencing principle given as an example in the discussion paper could form a basis for sentencing principles relating to offences under the Health Act.

The sentencing principles should take in to consideration the actual harm or potential harm resulting from the actions of a person, the level of culpability of that person, the extent of the wilfulness of the person in undertaking the actions leading to the offence being committed, previous offence history of the person in question, as well as any relevant mitigating circumstances.

Should the new Health Act have provisions for public health policy? (105)

Yes

What formal process would you envisage to develop a public health policy? (106)

It is essential to have clear subordinate legislation to implement the Act.

The development of public health policies should be undertaken by the Department of Health in consultation with local government, other relevant state government agencies and representatives from interest groups.

As part of the development of a health policy consideration should be given to the following aspects;

· Relevance of policy to public health

· Scope of the policy

· Ease of application of the policy by enforcement agencies

· Resource implications

· Penalty provisions

· Cost benefit analysis

Draft policies should be subject to public comment. Consideration should be given to the public comments received in the formulation of the final policy.

The policies should be legally enforceable.

A substantial education campaign will be required to educate the community and EHO’s on the use of the new Act and policies/regulations.

Do you agree on the concept of licensing as a mechanism to protect public health from specific risk? (107)

Yes

And if not, why not? (108)

N/A

If yes, what options and possible arrangements do you see that licensing could possibly support the protection of public health? (109)

Licensing is seen as an effective mechanism for dealing with specific activities that require public health controls.

This can be done through the setting of comprehensive conditions that safeguard public health as part of the license approval.

Activities subject to licensing need to be specified so as to ensure continuity between Local Governments.

It should be an offence to undertake a “prescribed activity” without a valid licence.

There should be penalties for failure to comply with conditions of a licence including the ability to suspend or revoke a licence by the approving authority.

Licensing also provides a means for resourcing the ongoing supervision of a particular activity by local governments for compliance with Health Act requirements through the payment of a licensing fee.

Licensing provides a scope for partnerships between businesses and authorities.

Should the specific licensing and registration provisions currently in the Health Act 1911 be replaced in a new Health Act with a power vested in the Minister to declare that specified activities that present a risk to public health should require a licence or registration? (110)

Yes

Comments (111)

New and emerging public health issues as well as advances in technology and associated changes in practices and activities warrant the inclusion of a power in the new Health Act 1911 which would allow the Minister to prescribe activities that present a risk to public health as requiring a licence or registration.

Steps similar to those specified in question 106 (development of public health policies) should be followed before the Ministers determination as to whether a practice or activity warrants licensing or registration.

Should there be potential for licensing at a state-wide level? (112)

Yes

Comments (113)

Involvement in licensing by the state should be restricted to the determination which activities and practices need to be licensed or registered and implementing a legislative framework to enable this to take place.

Care needs to be taken with the implementation of state-wide licences to ensure that the concerns and wishes of an individual Local Government are supported. No Local Government or community should be forced to accept a licensed activity without due process and consideration and complete approval by the relevant Local Government.

At a local government level? (114)

Yes

Comments (115)

Involvement by local government should extend to the licensing of individual premises, ongoing inspection and assessment of premises for compliance with Health Act requirements and the conditions of the licence.

Consideration needs to be given to resource implications associated with this role and an implementation of an adequate cost recovery arrangement, e.g. annual licence fees (as mentioned earlier).

Should either the minister or the Executive Director of Public Health have their existing supervisory control over the making and repeal of local laws? (116)

Yes

Comments (117)

It is appropriate that there exists some form of oversight of local government local laws at the state level.

If local laws about public health continue should they be solely within the responsibility of the Local Government Act 1995? (118)

Or is there a case of having a new Health Act provide for local laws? (119)

Yes

Comments (120)

A mechanism relating to the formation of local laws relating to public health issues should be provided for under a new Health Act.

We recommend the development of policies and guidelines by the DOH as a guide for Local Government agencies to prevent an ad hoc approach to the formulation of local laws that could lead to inconsistencies between Local Governments when dealing with similar issues.

Should a new Health Act allow for regulations that apply only to a particular local government? (121)

Comments (122)

Public health issues at a local level are best dealt with through local laws tailored specifically to the public health needs of a particular local authority. Regulations should provide overall public health controls uniformly throughout the state.

The need of metropolitan areas may vary greatly from the needs of rural and remote areas. With respect to some matters there needs to be an ability to apply legislation based on local social, economic and environmental considerations. There needs to be a provision for an exemption from compliance with regulations by a Local Government district if it can be shown that unique considerations apply.

In what way should a new Health Act help implement health impact assessments? (123)

We agree with the principle of health impact assessments. The Health Act should enable health impact assessments to be undertaken by local government authorities.

Health impact assessments should be undertaken in conjunction with development assessment and approval processes at the local government level.

Health impact assessment of projects of significant nature that may affect more then just one local government will need to be undertaken by the Department of Health in consultation with the relevant local governments.

The Health Act should allow for the formulation of regulations, guidelines or codes of practice that would clarify the aims/goals of health impact assessment processes and provide a clear framework for how such assessments should be undertaken.

Is there a case for an independent inquiry in a new Health Act? (124)

Yes

Comments (125)

The Health Act should allow for a broad power of inquiry in relation to issues relating to public health or activities or proposed activities that may constitute a risk to public health.

It is not clear as to what is meant by the term “independent inquiry”.

Who should the power to initiate an inquiry lie with? (126)

The Minister and the Executive Director of Public Health.

Do you think that a new Health Act can integrate with support and advance the states sustainability strategy? (127)

Yes

If so, in what way might it do this? (128)

A new more flexible Health Act will be better suited to dealing with new and emerging public health issues.

Sustainability is linked with issues relating to the quality of life, the health of the general environment and public health.

Sustainability principles must be considered as part of the overall approach to public health.

However, acknowledgment needs to be given to the fact that sustainability principles will not always integrate with public health principles 100 percent of the time.

When this occurs the new Health Act should have a mechanism to ensure that consideration of public health issues is given priority over issues of sustainability.

Should there be over-arching principles under which the disease and emergency powers provision of a new Health Act might operate? (129-130) If so, should they be based on the general idea of proportionality? (131-132)

We agree with proposal for emergency powers.

There is a need to clarify emergency power provisions to cement role of EHO’s in emergency situations.

There is no objection to any statutory powers delegated to the EDPH, or EHOs for the control of infectious diseases to be proportional to the issues they are meant to address.

However caution must be applied to watering down any existing powers, or restricting officers in applying more serious statutory remedies if necessary. Adding layers of bureaucracy which need to be satisfied before additional actions are taken can lead to delays which are unacceptable in an investigation of infectious disease.

Should there be a statement of rights and responsibilities in relation to communicable disease in a new Health Act? (133) If so, comments are invited on the model set out above. (134)

The rights of a private citizen are already enshrined in other legislation and we would question the need to specify them in the new Health Act. All EHOs are expected to ensure an appropriate level of care and professional treatment of anyone afflicted with a disease and to the best of my knowledge this has always been the case under the Health Act.

The inclusion of patient obligations would be supported, as this describes effectively what a person’s responsibilities when diagnosed with a notifiable disease are. It also acts as a trigger if a person fails to comply with these requirements as to what the next step in an investigation is and whether they are committing an offence.

Should notification of notifiable diseases follow the model discussed here? (135)

If not, what variations to the model would you suggest? (136)

The legislative model proposed here does not differ markedly from what is already in place. The primary difference is the ability and compulsion of laboratories to notify the EDPH.

There exists a need for laboratories to notify the EDPH of infectious diseases, at present there is insufficient legislative protection for them to undertake this.

There should also exist a legislative requirement for doctors who suspect a person is carrying a notifiable disease, to follow up with a clinical specimen to confirm this.

Too often a doctor will diagnose ‘food poisoning’ and request a patient contact the Department of Health for more advice. This places EHOs in the invidious situation of explaining that there may be other causes for a patient’s enteric symptoms and without a laboratory isolate, claims of food poisoning are speculative. I would suggest that if a doctor wishes to make a positive diagnosis of a notifiable disease or condition based on an initial consultation only, then there should be some compulsion to confirm this with an appropriate medical test.

Should the framework envisaged here, notably the ‘staged process’ of examination, counselling, order making and detention or isolation – together with the ancillary powers – be implemented in a new Health Act? (137)

If not, what model would you consider desirable or what variations to the particular issues set out above would you recommend? (138)

The introduction of a staged process is supported. Presently there are no actions specified under the Health Act 1911 which address the steps which should be reasonably taken to investigate an infectious disease in the community. It would also clarify the role an EHO is to play in investigating a notification sent to the local government for follow up.

However the new Act should not specify that the above steps are mandatory in any investigation process. There should be a discretionary power for the EDPH to skip any steps if they believe there is sufficient risk to public health.

Should the act of placing another at risk through the transmission or possible transmission of a notifiable disease be part of the general ‘risk to health’ offence canvassed in the Act? (139) Should it remain a stand – alone offence? (140) Are there other ways that you believe this issue should be dealt with? (141)

This is a redundant point. If the offence is created in another area of the new Act, why have a separate section dealing with the control of Infectious Diseases? This would then go into the general area of the act as a ‘risk to health’.

Personally we favour having specific areas of the Act as well as standalone and specific offences within them. This allows for a far more easy interpretation of legislative intent and enforcement where necessary.

Do you agree with the framework for both protecting privacy and for dealing with personal information for public health purposes outlined in the framework above? (143) If not, what part of the framework do you disagree with and what do you think should be put in its place? (144)

It is believed that a provision should be inserted recognising the ability of Environmental Health Officers to share patient information for the purposes of investigating a notifiable infectious disease. Often EHOs are required to communicate at a local government level, or between state and local levels to investigate an issue such as a foodborne outbreak. It seems in this discussion document too much emphasis is placed on the rights of medical staff involved with acute care and the EDPH to share information and not enough emphasis on the people who will actually be doing the investigation into how the person contracted the infection in the first place.

Limiting the ability of EHOs to utilise evidence gained from an interview of someone with a notifiable disease is also dangerous. If a person reveals they contracted an enteric infection as part of poor hygiene practices working in a food premises and this disease was then shown to be transmitted to the food and patrons, it may limit the ability of an authority to prosecute a business or individual under the new Food Act for “knowingly producing and selling contaminated food”. This is the uppermost offence in the new Food Act and a very effective deterrent, not something that should in any way be limited by a provision in the new Health Act.

Should a new Health Act have the power to incorporate the model immunisation provision advocated by the National Public Health Partnership either by way of a public health policy or by way of regulations made under the Act? (145-146) Should the Western Australian provision vary from the National Public Health Partnership model? (147-148)

The new Health Act should be enabling legislation the same as its predecessor.

Should strategies such as the model immunisation provision put forward by the National Public Health Partnership or any other organisation fit the requirements of providing better public health outcomes in WA, then this should be able to be adopted into the Act itself, regulations made under the Act, or by mentioning the ability to adopt health policy in the Act.

However, the EDPH should have a significant say in what is adopted into the Act by regulation, Australian standard or via a code of practice, perhaps even extending to a veto power.

Should it be deemed desirable for schools to maintain immunisation records of all students in attendance, this should be discussed with the Department of Education as it will require additional resources to maintain.

Your general comments and views on the discussion paper for a new Public Health Act. (149)

Scope of the Health Act review process

The existing Health Act be retained and updated in preference to the development of a whole new Health Act.

Any review of the Health Act be done in conjunction with the review of other state legislation eg EPA, DOE, WorkSafe etc

Health Act and the Crown

The Health Act should bind the Crown.

State government and its instrumentalities ought to be subject to the same legislation as the ordinary citizen.

This would address some of the current inequalities with the application of legislation under the Health Act with respect to areas such as housing (Department of Housing and Works) educational facilities (Ministry of Education), correctional facilities (Ministry of Justice).

Health Act v’s other legislation

The protection of public health is a fundamental responsibility of those governing our society.

Public Health Law must reflect the importance of maintaining and improving public health standards within the community.

The Health Act should override other Acts and associated legislation when issues relating to public health are under consideration.

Administration of the Health Act

The cooperation between state and local government agencies is essential for the effective coordination and implementation of public health controls throughout Western Australia

Role of the Department of Health

The Department of Health must play a key role in providing guidance, direction and support to local governments to ensure a consistent approach to public health is maintained on an ongoing basis.

The Department of Health needs to play a role in providing timely expert advice to local government officers on the interpretation of the legislation.

The Department of Health needs to play a key role in providing training and development opportunities for public health professionals working in local government charged with carrying out the provisions of the Health Act and other public health legislation.

The Department of Health needs to develop and implement guidance/reference materials for use by local government officers on areas such as those of Risk Management, Sustainability, Health Impact Assessments.

Implementation of the proposed legislation and associated resource implications

Consideration must be given to the resources of local governments and the Department of Health and the adequacy of these resources in the implementation and ongoing enforcement of the new legislation.

The new Health Act should allow for the provision of adequate resources at both the state and local government levels to ensure that the discharge of the powers and responsibilities of all of the enforcement agencies is undertaken in a timely and effective manner.

Issues of adequate local government resources and associated implementation of Public Health controls must be addressed through mandatory reporting requirements by local government agencies to the Department of Health on a regular basis.

The development of an Environmental Health Plan enshrined in legislation for adoption by local government agencies may be one method of ensuring uniform application of public health principles throughout the state.

Local governments should be required to formally submit an annual report to the Principal Statutory Officer (Executive Director of Public Health) stipulating the discharge of their duties in comparison to a mandatory environmental health plan.

Powers, functions and responsibilities

The powers, functions, and responsibilities of all of the key players must be clearly specified in the legislation.

The powers must be flexible to allow for their use in non traditional, emerging situations.

They must be written in a manner which is easy to interpret by the enforcement agency, the alleged offender and if necessary the magistrate.

The powers must have the ability to effectively implement public health controls.

The powers must be able to stand up to legal scrutiny in a court of law and must be linked to penalties that upon a conviction will truly reflect the importance of public health to our community.

The provisions of the Health Act should prevent duplication between relevant enforcement agencies and statutes. For example the issue of environmental pollution (including noise) are already addressed by the Environmental Protection Act and would not necessitate public health controls.

Role of the Executive Director of Public Health

The statutory powers and responsibilities under the Health Act should rest with an appropriately qualified principal statutory officer such as the Executive Director of Public Health.

The position of the principal statutory officer (EDPH) should enjoy protection under the Act, which would enable him to make statutory decisions on public health issues with autonomy, free of political interference.

The Executive Director of Public Health should retain the statutory power to appoint Environmental Health Officers to a local government.

The dismissal of an Environmental Health Officer should require the approval of the EDPH as is currently the case.

The EDPH should also have broad supervisory powers, including investigating powers to ensure that Environmental Health Officers specifically and the Local Governments generally are fulfilling their responsibilities under the Health Act and still enjoy the confidence of the EDPH.

The Executive Director of Public Health and his/her representatives must have broad powers of enquiry including the ability to have access to documents and to require witnesses to appear and testify under oath.

The new Health Act should have provisions allowing the EDPH to seek the suspension of a local government by the Minister of Local Government for failure to fulfil its responsibilities under the new Health Act.

Qualifications of Environmental Health Officers

Environmental Health Officers should have qualifications suitable to the EDPH.

The EDPH should be guided on the adequacy of such qualifications by a Professional Review Board

The overall standard of qualifications of an EHO required to date should not be watered down or reduced in any way.

Appointment of Authorised Officers

The appointment of authorised officers with “specialised skills” should be limited to the application of these skills, given consideration of the overall qualification level of the person in question and the suitability of such qualification in discharging public health responsibilities.

Persons who do not posses qualifications at least equal to those of an EHO should not be able to undertake statutory enforcement duties and responsibilities.

Protections for public health officials

The new Public Health Act should provide protection for public health officials and Local Government EHO’s that would enable them to carry out provisions of the Act without political interference.

Unlike other Local Government employees such as Town Planners and Building Surveyors who work generally within Local Government policy, Environmental Health Officers do from time to time come in to conflict with their Local Government employers on public health issues.

A good example of this may be when a country EHO under his own authority or when specifically directed by the EDPH undertakes an action on public health grounds permitted by the Act against the specific wishes of the Local Government or against an elected member of the Local Government.

Furthermore there should be a protection for public health officials from personal liability for any action undertaken whilst involved in carrying out provisions of the legislation.

The existing provisions of the Health Act 1911 in this area seem to be adequate.

There should also exist an ability for Local Government EHO’s to undertake a prosecution for a contravention of the Act and subsidiary legislation without the need to obtain a specific approval to do so from the relevant Local Government.

Broad duty of care principles – are they to broad?

A broad duty of care approach to public health may lead to problems with the potential application of public health legislation to areas not traditionally considered or intended as requiring statutory compliance under public health law.

A differentiation needs to be made between issues affecting public health and those affecting public safety.

A broad duty to protect public health should be supported by guidelines that are quite clear on scenarios where such a duty exists.

Such specific guidelines would allow an easier interpretation and enforcement of the Heath Act with respect to a very broad duty of care requirement.

Abatement powers

The abatement powers should be sufficiently broad and flexible to allow their use in an effective manner in combating a variety of existing and emerging public health concerns.

The penalty provisions should be strengthened in the new Health Act.

Safeguards

A significant increase in penalties should be offset by the provision of a statutory defence similar to the model described in the discussion paper

Onus of proof in case of a statutory defence should lie with the defendant at all times.

Licensing

Licensing is seen as an effective mechanism for dealing with specific activities that require public health controls.

This can be done through the setting of comprehensive conditions that safeguard public health as part of the license approval.

It should be an offence to undertake a “prescribed activity” without a valid licence.

There should be penalties for failure to comply with conditions of a licence including the ability to suspend or revoke a licence by the approving authority.

Health impact assessments

We agree with the principle of health impact assessments.

The Health Act should enable health impact assessments to be undertaken by local government authorities.

Health impact assessments should be undertaken in conjunction with development assessment and approval processes at the local government level.

The Health Act should allow for the formulation of guidelines or codes of practice that would clarify the aims/goals of health impact assessment processes and provide a clear framework for how such assessments should be undertaken.

Sustainability principles

Whilst it may make sense to identify sustainability as one of the goals of the new Health Act, acknowledgment needs to be given to the fact that sustainability principles will not always integrate with public health principles 100 percent of the time.

When this occurs the new Health Act should have a mechanism to ensure that consideration of public health issues is given priority over issues of sustainability.

Emergency powers

It is believed that the power to declare a public health state of emergency should not rest with an elected person for several reasons:

It is unlikely that the Premier will always have the type of medical, or emergency management training to be able to assess a situation and make a judgement without seeking the advice of the Department of Health and the EDPH first. A state of emergency may not be declared as soon as it should be.

In the case of a local terrorist attack, the primary target may be the elected government, rather than a public servant appointed to a statutory position. Without a clear legislative mandate and lacking governmental support the response to such a situation may be delayed.

For reasons of political expediency or partisan politics, a decision to declare an emergency may or may not be made with the sole interests of public health.

The EDPH is much more closely linked with the Departmental responses to emergency incident response than the elected government and will likely be privy to information more quickly than the Premier or Minister for Health.

Repealing provisions or regulations relating to pesticides

Western Australia is the leading state in Australia in relation to the control and use of pesticides. Any consideration that is given to any watering down or repealing in-toto of the Health (Pesticides) Regulations 1956 would be a substantially retrograde legislative step.

There is no case for this strong legislation to be repealed, nor is there a case for the enabling legislation under the Health Act to be watered down to a ‘pesticides policy’ or adopted as part of some other legislation. Complaints regarding the use of chemicals and the ability of pest control operators to effectively treat pests in homes and businesses have not decreased, nor ceased.

Vesting any part of the regulation of pesticides under another act, or charging any other person other than an Environmental Health Officer with the administration and regulation of these chemicals is also a poor choice.

It has been shown that when other government departments are charged with overseeing the use of a particular pesticide, the program is very poorly managed and is often handed quickly back to the Department of Health or local government in whole or in part, when issues regarding misuse, or off target animal deaths arise, as there are no officers in other Departments capable of conducting satisfactory investigations. Therefore a proposal to have pesticide regulations or any other enabling pesticide legislation under any other act is unworkable and should be scrapped.

The pesticide industry requires substantial policing, licensing and inspectorial activities to ensure that public health and safety is protected.

The level of skills and knowledge vested within the Department of Health regarding issues relating to pesticides is currently high, but the staffing level of the Pesticide Safety Branch has never been more critical than is the case today. A section once containing six officers is now down to two, with only one possessing significant management experience, legislative background, training and policy development skills required to maintain the branch’s services close to its original levels.

This shortage of staff in the Pesticide Safety Branch in the Department of Health, has been magnified by punitive staffing policies over several years and the unwillingness of the Department to appoint a full time manager since the departure of the former incumbent.

Instead of giving any consideration to transfer the ability of EHOs to regulate this industry, the new Public Health Act should move to support the Health (Pesticide) Regulations 1956. This should include a specification that the Department of Health shall maintain a Pesticide Safety Branch and staff it accordingly.

Additionally, the setting up of a Pest Control Operator’s board should be endorsed. This board should consist of government representatives, pest control industry leaders, the EDPH and training institutions. This proposal would allow complaints regarding malpractice (not affecting public health) to be effectively investigated without placing an additional burden on the Pesticide Safety Section. It would also afford the Pest Control industry recognition as a profession, which it is seeking and allow itself to deal with low level complaints about operators internally.