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 a