New South Wales: Public Health Act 2010 (NSW)

Public Health Act 2010 No 127 An Act with respect to public health. Part 1 Preliminary 1 Name of Act This Act is the Public Health Act 2010. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects (1) The objects of this Act are as follows— (a) to promote, protect and improve public health, (b) to control the risks to public health, (c) to promote the control of infectious diseases, (d) to prevent the spread of infectious diseases, (e) to recognise the role of local government in protecting public health. (f) to monitor diseases and conditions affecting public health. (2) The protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act. 4 Responsibilities of local government relating to environmental health (1) A local government authority has, in relation to its area, the responsibility to take appropriate measures to ensure compliance with the requirements of this Act in relation to private water suppliers, water carters, public swimming pools and spa pools, regulated systems and premises on which skin penetration procedures are carried out (as referred to in Part 3). (2) In particular, a local government authority has the responsibility of appointing authorised officers to enable it to exercise its functions under this Act and ensuring that its authorised officers duly exercise their functions under this Act. (3) In this section— private water supplier means a person who supplies drinking water in the course of a commercial undertaking (other than that of supplying bottled or packaged drinking water), being a person who has not received the water— (a) from any supplier of drinking water referred to in paragraphs (a)–(g) of the definition of supplier of drinking water in section 5(1), or (b) in the form of bottled or packaged water. water carter means a person who receives water from a supplier of drinking water and who supplies drinking water from a water carting vehicle in the course of a commercial undertaking. Note. The Secretary is responsible for providing guidance and support to local government authorities in the exercise of their functions under this Act but may also (in appropriate circumstances) exercise compliance functions relating to environmental health. 5 Definitions (1) In this Act— approved form means a form approved for the time being by the Secretary. area means— (a) in relation to a council within the meaning of the Local Government Act 1993, the area for which the council is constituted by that Act, or (b) in relation to a person appointed under section 5A, the part of the Western Division that is not within the area of a council, or (c) in relation to the Lord Howe Island Board, Lord Howe Island. authorised officer means a person who is appointed as an authorised officer under section 126. chief executive officer of a hospital means the person responsible for the day to day administration of the affairs of the hospital. Chief Health Officer means the Chief Health Officer of the Department. Department means the Ministry of Health. drinking water—see section 13. exercise a function includes perform a duty. function includes a power, authority or duty. health practitioner has the same meaning as it has in the Health Care Complaints Act 1993. health service has the same meaning as it has in the Health Care Complaints Act 1993. hospital means— (a) a public hospital within the meaning of the Health Services Act 1997, or (b) a declared mental health facility within the meaning of the Mental Health Act 2007, or (c) a private health facility within the meaning of the Private Health Facilities Act 2007, or (d) a nursing home, or (e) any other institution declared by the regulations to be a hospital for the purposes of this definition. improvement notice means a notice under section 42. International Statistical Classification of Diseases and Related Health Problems means the document published under that title by the World Health Organization, Geneva, as in force from time to time. local government authority means— (a) a council within the meaning of the Local Government Act 1993, or (b) the person appointed under section 5A, or (c) the Lord Howe Island Board. member of the NSW Health Service has the same meaning as it has in the Health Services Act 1997. notifiable disease means a medical condition listed in Schedule 2. nursing home means a facility at which residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) is provided, being— (a) a facility at which that care is provided in relation to an allocated place (within the meaning of that Act) that requires a high level of residential care (within the meaning of that Act), or (b) a facility that belongs to a class of facilities prescribed by the regulations. occupier of premises or a part of premises (including premises that are vacant) means— (a) the owner of the premises or part, or (b) if any other person is entitled to occupy the premises or part to the exclusion of the owner, the person so entitled, or (c) for the purposes of Divisions 2 and 5 of Part 3—if an air-handling system or a cooling water system is installed on premises that are subdivided into a strata scheme (within the meaning of the Strata Schemes Management Act 2015), the owners corporation constituted under that Act for the scheme. premises includes any land, temporary structure, vehicle or vessel. professional council has the same meaning as it has in the Health Care Complaints Act 1993. prohibition order means an order under section 45. public authority means an incorporated or unincorporated body constituted by or under an Act for a public purpose. public health officer means a public health officer appointed under section 121. public health order means a public health order referred to in section 62. public health organisation has the same meaning as it has in the Health Services Act 1997. public place means a place (including a place in any vehicle or vessel) that the public, or a section of the public, is entitled to use or that is open to, or is used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise). registered health practitioner has the same meaning as it has in the Health Practitioner Regulation National Law (NSW). registration authority has the same meaning as it has in the Health Care Complaints Act 1993. regulated system—see section 26. relevant health organisation has the same meaning as it has in the Health Care Complaints Act 1993. scheduled medical condition means any medical condition listed in Schedule 1. Secretary means the Secretary of the Ministry of Health. skin penetration procedure means any procedure (whether medical or not) that involves skin penetration (such as acupuncture, tattooing, ear piercing or hair removal or the penetration of a mucous membrane), and includes any procedure declared by the regulations to be a skin penetration procedure, but does not include— (a) any procedure carried out by a registered health practitioner, or by a person acting under the direction or supervision of a registered health practitioner, in the course of providing a health service, or (b) any procedure declared by the regulations not to be a skin penetration procedure. supplier of drinking water means any of the following— (a) Sydney Water Corporation, (b) Hunter Water Corporation, (c) a water supply authority within the meaning of the Water Management Act 2000, (d) a local council or a county council exercising water supply functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993, (e) the Lord Howe Island Board, (f) a licensed operator or licensed retailer within the meaning of the Water Industry Competition Act 2006, (g) any person who treats or supplies water on behalf of a person referred to in any of the preceding paragraphs, (h) any person who supplies drinking water in the course of a commercial undertaking (other than that of supplying bottled or packaged drinking water), being a person who has not received the water— (i) from a person referred to in any of the preceding paragraphs, or (ii) in the form of bottled or packaged water, (i) any person who receives water from a person referred to in this definition and who supplies drinking water from a water carting vehicle in the course of a commercial undertaking. temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure. Western Division means that part of the State that is the Western Division within the meaning of the Crown Land Management Act 2016. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. Note. For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings, drawing attention ("cf") to equivalent or comparable (though not necessarily identical) provisions of the previous public health legislation. Abbreviations used include 1991 Act (the Public Health Act 1991), Microbial Control Reg (the Public Health (Microbial Control) Regulation 2000), Swimming Pools Reg (the Public Health (Swimming Pools and Spa Pools) Regulation 2000), and Skin Penetration Reg (the Public Health (Skin Penetration) Regulation 2000). 5A Local government authority for Western Division (1) The Minister may appoint a person to be the local government authority for the purposes of this Act for land within the Western Division that is not within the area of a council. (2) The Minister may revoke an appointment under this section at any time or for any reason. (3) A person appointed under this section (except a person who is an employee of a government sector agency within the meaning of the Government Sector Employment Act 2013) is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine in respect of the person. 6 Act binds Crown (cf 1991 Act, s 81) (1) This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. (2) Nothing in this Act renders the Crown liable to be prosecuted for an offence. Part 2 General public health 7 Power to deal with public health risks generally (cf 1991 Act, s 5) (1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health. (2) In those circumstances, the Minister— (a) may take such action, and (b) may by order give such directions, as the Minister considers necessary to deal with the risk and its possible consequences. (3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary— (a) to reduce or remove any risk to public health in the area, and (b) to segregate or isolate inhabitants of the area, and (c) to prevent, or conditionally permit, access to the area. (4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order. (5) Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order. (6) Action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989. (7) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions— (a) any action taken by the Minister under this section other than the giving of a direction by an order under this section, (b) any direction given by any such order. 8 Power to deal with public health risks during state of emergency (cf 1991 Act, s 4) (1) This section applies in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 (the 1989 Act) if, after consultation with the Minister administering that Act, the Minister considers on reasonable grounds that the emergency is, or is likely to be, a risk to public health. (2) In these circumstances, the Minister, with the agreement of the Minister administering the 1989 Act— (a) may take such action, and (b) may by order give such directions, as the Minister considers necessary to deal with the risk and its possible consequences. (3) Without limiting subsection (2), an order may direct— (a) all persons in a specified group, or (b) all persons residing in a specified area, to submit themselves for medical examination in accordance with the order. (4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order. (5) Unless it is earlier revoked, an order expires when the relevant state of emergency ceases to exist. (6) Action taken (including any order made) under this section has effect as if it had been taken in the execution of Division 4 of Part 2 of the 1989 Act. Note. Consequently, it is an offence under that Act to obstruct or hinder the Minister administering that Act in the exercise of any such function (section 40), and no proceedings may be brought against any person (including the Crown) as a consequence of any damage, loss, death or injury arising from the exercise of any such function (section 41). 9 Power to deal with public health risks arising from conduct of public authorities (cf 1991 Act, s 9) (1) This section applies if the Minister considers that, because of an act or omission of a public authority, or of any person acting on behalf of a public authority, a situation has arisen that is, or is likely to be, a risk to public health. (2) In these circumstances, the Minister may, by order in writing served on the public authority or the chief executive officer (however described) of the authority, direct the public authority or the chief executive officer to take specified action to minimise or rectify any adverse consequences of the act or omission. (3) If a public authority or the chief executive officer (however described) of a public authority considers that, for any reason, a situation has arisen that is, or is likely to be, a risk to public health, the public authority or chief executive officer is to notify the Minister of that fact. 10 Offence not to comply with Ministerial direction A person who— (a) is subject to a direction under section 7, 8 or 9, and (b) has notice of the direction, must not, without reasonable excuse, fail to comply with the direction. Maximum penalty— (a) in the case of an individual—100 penalty units, or imprisonment for 6 months, or both, and, in the case of a continuing offence, a further 50 penalty units for each day the offence continues, or (b) in the case of a corporation—500 penalty units and, in the case of a continuing offence, a further 250 penalty units for each day the offence continues. 10A Order may adopt publication A direction made by the Minister by order under section 7, 8 or 9 may adopt, and require compliance with, a publication as in force for the time being. 11 Power to close public premises on public health grounds (cf 1991 Act, s 8) (1) If the Secretary considers that access to any premises on which the public, or sections of the public, are required, permitted or accustomed to congregate should be restricted or prohibited in order to protect public health, the Secretary may, by order, direct that access to the premises be restricted or prohibited as specified in the order. (2) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order. (3) In the case of premises that are not under the control of a Minister, any person who— (a) controls, or is involved in the control of, the premises, and (b) has notice of the direction, must take such reasonably practicable action as is necessary to comply with the direction. Maximum penalty— (a) in the case of an individual—100 penalty units, or imprisonment for 6 months, or both and, in the case of a continuing offence, a further 50 penalty units for each day the offence continues, or (b) in the case of a corporation—500 penalty units and, in the case of a continuing offence, a further 250 penalty units for each day the offence continues. 12 Power to direct disinfection or destruction of noxious articles (cf 1991 Act, s 6) (1) If the Secretary suspects that there is a noxious article on any premises, the Secretary may, by order in writing, authorise any person to enter the premises, seize anything that appears to be a noxious article and, there or elsewhere, disinfect or destroy it. (2) A person (other than a public authority) must not— (a) transfer possession of an article to another person, or (b) expose an article to another person, or (c) remove an article from any premises the subject of an order under subsection (1), if the person knows it to be a noxious article. Maximum penalty—100 penalty units, or imprisonment for 6 months, or both. (3) A public authority has a duty to avoid doing anything that, if done by a person other than a public authority, would be an offence under this section. (4) A person who suffers damage as a result of the disinfection or destruction of an article is entitled to reasonable compensation unless the condition of the article that necessitated its disinfection or destruction was attributable to that person's act or default. (5) Any such compensation is payable out of money to be provided by Parliament. (6) In this section, noxious article means any article or animal that— (a) has been in contact with a person who has an infectious disease that is transmissible by contact with the article or animal, or (b) is or is likely to be infested with vermin, or (c) is or is likely to be a risk to health as a result of its having been in contact with any article, person or animal that is infested with vermin. Part 2A Public warnings about health matters 12A Public warning statements (1) If the Chief Health Officer is of the view that there is a risk to the health or safety of the public or a sector of the public, the Chief Health Officer may make public a statement identifying and giving warnings or information about the risk. (2) The Chief Health Officer is to take into account any matters prescribed by the regulations in determining whether to make public a statement under this section. (3) The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 do not apply with respect to a statement made public under this section. 12B No liability for issuing or publishing warning statements (1) No liability is incurred by the Chief Health Officer or any other person for making public in good faith— (a) a statement referred to in section 12A, or (b) a fair report or summary of such a statement. (2) In this section— liability includes liability for defamation. Part 3 Environmental health Division 1 Safety measures for drinking water 13 Definitions (cf 1991 Act, s 10A) In this Division— boil water advice for drinking water means advice to the effect that the water should not be used for human consumption (or for purposes connected with human consumption) until after it has been boiled or otherwise treated. drinking water means water that is intended, or likely, to be used for human consumption, or for purposes connected with human consumption, such as— (a) the washing or cooling of food, or (b) the making of ice for consumption, or for the preservation of unpackaged food, whether or not the water is used for other purposes. treatment of water means any process or technique used to improve the quality of water. 14 Evidentiary provision (cf 1991 Act, s 10K) A certificate that is issued by the Minister, the Secretary or the Chief Health Officer and that states that, on a specified day, he or she gave a specified direction under this Division to a specified person is admissible in any legal proceedings as prima facie evidence of the fact or facts so stated. 15 Drinking water must be fit for human consumption (cf 1991 Act, s 10IA) A person must not, by means of a reticulated water system, supply any other person with drinking water that is not fit for human consumption. Maximum penalty— (a) in the case of an individual—2,500 penalty units, or 12 months imprisonment, or both, or (b) in the case of a corporation—10,000 penalty units. 16 Power to take action with respect to unsafe water (cf 1991 Act, s 10I) (1) The Minister may take such action, and by order give such directions, as the Minister considers necessary— (a) to restrict or prevent the use of unsafe water, and (b) to bring unsafe water to such a condition that it is no longer unsafe water. (2) Before giving a direction to a supplier of drinking water constituted under an Act, the Minister is to consult with the Minister responsible for the Act under which the supplier is constituted. (3) In this section, unsafe water means— (a) drinking water that the Minister suspects to be unfit for human consumption, or (b) any other water that the Minister suspects is, or is likely to be, a risk to public health. 17 Offence not to comply with Ministerial direction (1) A person who— (a) is subject to a direction under section 16, and (b) has notice of the direction, must not, without reasonable excuse, fail to comply with the direction. Maximum penalty— (a) in the case of an individual—2,500 penalty units or 12 months imprisonment, or both, and, in the case of a continuing offence, a further 500 penalty units for each day the offence continues, or (b) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further 2,000 penalty units for each day the offence continues. (2) If a direction under section 16 is not complied with, the Minister may take the action referred to in the direction and— (a) unless the person represents the Crown, may recover an amount equal to the cost of doing so as a debt owed by the person to the Crown, or (b) if the person represents the Crown, may require the person to pay to the Secretary an amount equal to the cost of doing so. 18 Power to direct testing of drinking water (cf 1991 Act, s 10G) (1) The Secretary may, by notice in writing, direct a supplier of drinking water to carry out such tests on the drinking water that it has available for supply, or on any substance used in or produced by the treatment of any such water, as the Secretary considers appropriate. (2) Any such direction may specify that the test to be carried out on water is to be carried out in any one or more of the following ways— (a) on the water in its raw state, (b) while the water is undergoing treatment, (c) after the water has been treated or partly treated. 19 Power to direct production of information (cf 1991 Act, s 10H) (1) The Secretary may, by notice in writing, direct a supplier of drinking water to produce to the Secretary such information as the Secretary may specify concerning— (a) the quality of the drinking water that the supplier has available for supply, and (b) the methods by which the water is treated. (2) The information to be produced may include (but is not limited to) the following— (a) copies of relevant records of the supplier, (b) the results of any tests required under this Division. (3) The information is to be provided in such form and manner as the Secretary may direct. 20 Offence not to comply with Secretary's direction (1) A supplier of drinking water to which a direction is given under section 18 or 19 must not, without reasonable excuse, fail to comply with the direction. Maximum penalty— (a) in the case of an individual—500 penalty units, or imprisonment for 6 months, or both, and, in the case of a continuing offence, a further 100 penalty units for each day the offence continues, or (b) in the case of a corporation—2,000 penalty units and, in the case of a continuing offence, a further 400 penalty units for each day the offence continues. (2) If a direction under section 18 or 19 is not complied with, the Secretary may take the action referred to in the direction and— (a) unless the supplier of drinking water represents the Crown, may recover an amount equal to the cost of doing so as a debt owed by the supplier to the Crown, or (b) if the supplier represents the Crown, may require the supplier to pay to the Secretary an amount equal to the cost of doing so. 21 Chief Health Officer responsible for determining necessity for boil water advices (cf 1991 Act, s 10E) The Chief Health Officer may from time to time decide, in relation to any supplier of drinking water— (a) whether or not it should issue a boil water advice for the drinking water it supplies or has available for supply, and (b) whether or not it should provide additional information to the public in connection with any boil water advice it issues, and (c) whether or not a boil water advice is to be retracted or corrected. 22 Advice to public (cf 1991 Act, s 10B) (1) The Chief Health Officer may from time to time prepare advice, for the benefit of the public, concerning the safety of available drinking water (or drinking water available from a particular supplier of drinking water) and any possible risks to health involved in the consumption of that water. (2) The advice may include a boil water advice. (3) The Chief Health Officer is to provide the advice in writing to the relevant supplier of drinking water. (4) The supplier of drinking water to whom the advice is provided must issue the advice to the public in such form and manner as the Chief Health Officer may direct by notice in writing. Maximum penalty— (a) in the case of an individual—100 penalty units, or imprisonment for 6 months, or both, or (b) in the case of a corporation—500 penalty units. (5) The Chief Health Officer may also issue the advice to the public as the Chief Health Officer sees fit. 23 Correction of misleading information (cf 1991 Act, s 10C) (1) The Chief Health Officer may, by notice in writing, direct a supplier of drinking water to retract or correct any information or advice issued, by or on behalf of the supplier, to the public in relation to the safety of the supplier's drinking water if the Chief Health Officer is of the opinion that the information or advice is inaccurate, incomplete or otherwise misleading. (2) The Chief Health Officer may specify any one or more of the form, content and manner of the retraction or correction and of its publication. (3) A supplier of drinking water to which a direction is given under this section must not, without reasonable excuse, fail to comply with the direction. Maximum penalty— (a) in the case of an individual—500 penalty units and, in the case of a continuing offence, a further 100 penalty units for each day the offence continues, or (b) in the case of a corporation—2,000 penalty units and, in the case of a continuing offence, a further 400 penalty units for each day the offence continues. (4) If a direction given to a supplier of drinking water is not complied with, the Chief Health Officer may take the action referred to in the direction and— (a) unless the supplier of drinking water represents the Crown, may recover an amount equal to the cost of doing so as a debt owed by the person to the Crown, or (b) if the supplier represents the Crown, may require the person to pay to the Secretary an amount equal to the cost of doing so. 24 Protection from liability (cf 1991 Act, s 10J) (1) The provision of any information or advice concerning drinking water by the Chief Health Officer exercising any function under this Division, or by a supplier of drinking water pursuant to a direction under this Division, in good faith for the purpose of executing this Act does not subject— (a) the State, or (b) a Minister of the Crown in right of New South Wales, or (c) a member of staff of the Department, or (d) a member of the NSW Health Service, or (e) the supplier or any of its staff, to any action, liability, claim or demand. (2) A reference in this section to the exercise by the Chief Health Officer of a function includes a reference to a decision by the Chief Health Officer not to exercise that function. 25 Quality assurance programs (cf 1991 Act, s 10M) (1) A supplier of drinking water must have a quality assurance program. Maximum penalty— (a) in the case of an individual—50 penalty units, or (b) in the case of a corporation—250 penalty units. (1A) A supplier of drinking water must comply with the supplier's quality assurance program. Maximum penalty— (a) in the case of an individual—50 penalty units, or (b) in the case of a corporation—250 penalty units. (1B) A supplier of drinking water must provide a copy of the supplier's quality assurance program to the Secretary. Maximum penalty— (a) in the case of an individual—25 penalty units, or (b) in the case of a corporation—125 penalty units. (2) The regulations may make provision for or with respect to any of the following— (a) the tests on water and other substances to be carried out by a supplier of drinking water pursuant to this Division, (b) the records to be maintained by a supplier, (c) matters to be included in a quality assurance program, including in relation to particular types of suppliers. (3) The Chief Health Officer may, by notice in writing, exempt a supplier of drinking water or class of suppliers from subsection (1) if the Chief Health Officer is satisfied that the supplier, or class of suppliers, is subject to other appropriate licensing or other regulatory requirements. Division 2 Legionella control 26 Definitions (cf 1991 Act, s 44) In this Division— duly qualified, in relation to a person who installs, maintains or operates a regulated system, means a person who might reasonably be expected to be competent to do so. install includes construct. maintain includes repair, inspect, carry out preventive servicing and clean. prescribed installation requirements means requirements prescribed by the regulations, or determined by the Secretary, with respect to the design and installation of a regulated system. prescribed maintenance requirements means requirements prescribed by the regulations, or determined by the Secretary, with respect to the maintenance of a regulated system. prescribed operating requirements means requirements prescribed by the regulations, or determined by the Secretary, with respect to the operation of a regulated system. regulated system means any of the following— (a) an air-handling system, being a system designed for the purpose of directing air in a positive and controlled manner to and from specific enclosures by means of air-handling plant, ducts, plenums, air-distribution devices and automatic controls, (b) a hot water system, being a system designed to heat and deliver water at a temperature of at least 60°C at each outlet point, (c) a humidifying system, being a system for adding moisture to air in order to raise its humidity, (d) a warm-water system, being a system designed to heat and deliver water at a temperature of less than 60°C at each outlet point, (e) a cooling water system, being— (i) a device for lowering the temperature of water or other liquid by evaporative cooling, or (ii) an evaporative condenser that incorporates a device containing a refrigerant or heat exchanger, together with its associated equipment and pipe work, (f) any other system for the treatment of air or water that is declared by the regulations to be a regulated system for the purposes of this Division. 27 Exemption of certain premises This Division does not apply to or in respect of any regulated system installed on premises that is declared by the regulations to be exempt from the operation of this Division. 28 Installation of regulated systems (cf 1991 Act, s 45) (1) If a regulated system is installed on any premises otherwise than in accordance with the prescribed installation requirements (including any design requirements of those requirements), the occupier of the premises at the time the system is installed is guilty of an offence. Maximum penalty— (a) in the case of an individual—200 penalty units, or (b) in the case of a corporation—1,000 penalty units. (2) It is a defence to proceedings for an offence under subsection (1) if the occupier satisfies the court that the regulated system was installed by a duly qualified person. (3) If a duly qualified person— (a) is engaged by the occupier of any premises to install a regulated system on the premises, and (b) fails to ensure that the prescribed installation requirements are complied with, that person is guilty of an offence. Maximum penalty— (a) in the case of an individual—100 penalty units for a first offence or 200 penalty units, or imprisonment for 12 months, or both, for a second or subsequent offence, or (b) in the case of a corporation—500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence. (4) If a duly qualified person who is engaged by the occupier of any premises to install a regulated system on the premises engages a person other than an employee (a subcontractor) to install the system, the subcontractor is guilty of an offence if the subcontractor fails to ensure that the prescribed installation requirements are complied with. Maximum penalty— (a) in the case of an individual—100 penalty units for a first offence or 200 penalty units, or imprisonment for 12 months, or both, for a second or subsequent offence, or (b) in the case of a corporation—500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence. 29 Operation of regulated systems (cf 1991 Act, s 46) (1) If an occupier of any premises on which a regulated system is installed fails to ensure that the prescribed operating requirements are complied with, the occupier is guilty of an offence. Maximum penalty— (a) in the case of an individual—100 penalty units for a first offence or 200 penalty units, or imprisonment for 12 months, or both, for a second or subsequent offence, or (b) in the case of a corporation—500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence. (2) It is a defence to proceedings for an offence under subsection (1) if the occupier satisfies the court that a duly qualified person was engaged to operate the regulated system. (3) If a duly qualified person— (a) is engaged by the occupier of any premises to operate a regulated system, and (b) fails to ensure that the prescribed operating requirements are complied with, that person is guilty of an offence. Maximum penalty— (a) in the case of an individual—100 penalty units for a first offence or 200 penalty units, or imprisonment for 12 months, or both, for a second or subsequent offence, or (b) in the case of a corporation—500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence. (4) If a duly qualified person who is engaged by the occupier of any premises to operate a regulated system on the premises engages a person other than an employee (a subcontractor) to operate the system, the subcontractor is guilty of an offence if the subcontractor fails to ensure that the prescribed operating requirements are complied with. Maximum penalty— (a) in the case of an individual—100 penalty units for a first offence or 200 penalty units, or imprisonment for 12 months, or both, for a second or subsequent offence, or (b) in the case of a corporation—500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence. 30 Maintenance of regulated systems (cf 1991 Act, s 46) (1) If an occupier of any premises on which a regulated system is installed fails to ensure that the prescribed maintenance requirements are complied with, the occupier is guilty of an offence. Maximum penalty— (a) in the case of an individual—100 penalty units for a first offence or 200 penalty units, or imprisonment for 12 months, or both, for a second or subsequent offence, or (b) in the case of a corporation—500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence. (2) It is a defence to proceedings for an offence under subsection (1) if the occupier satisfies the court that a duly qualified person was engaged to maintain the regulated system. (3) If a duly qualified person— (a) is engaged by the occupier of any premises to maintain a regulated system, and (b) fails to ensure that the prescribed maintenance requirements are complied with, that person is guilty of an offence. Maximum penalty— (a) in the case of an individual—100 penalty units for a first offence or 200 penalty units, or imprisonment for 12 months, or both, for a second or subsequent offence, or (b) in the case of a corporation—500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence. (4) If a duly qualified person who is engaged by the occupier of any premises to maintain a regulated system on the premises engages a person other than an employee (a subcontractor) to maintain the system, the subcontractor is guilty of an offence if the subcontractor fails to ensure that the prescribed maintenance requirements are complied with. Maximum penalty— (a) in the case of an individual—100 penalty units for a first offence or 200 penalty units, or imprisonment for 12 months, or both, for a second or subsequent offence, or (b) in the case of a corporation—500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence. 31 Notification required where cooling water or warm-water systems are installed on premises (cf Microbial Control Reg, cl 15) The occupier of premises at which a cooling water system or warm-water system is installed must cause notice of that fact to be given to the person prescribed by the regulations in the approved form and in the manner prescribed by the regulations— (a) if the system is installed before he or she becomes the occupier, within one month after he or she becomes the occupier, or (b) if the system is installed after he or she becomes the occupier, within one month after the system is installed. Maximum penalty—10 penalty units. 32 Secretary may give training directions (cf 1991 Act, s 48) (1) The Secretary may serve on a person found guilty of an offence under section 28(3), 29(3) or 30(3) a notice in writing— (a) directing that the person undertake specified training, and (b) prohibiting the person from carrying out specified functions relating to a regulated system until the training is completed. (2) A person who— (a) is subject to a direction or prohibition under this section, and (b) has notice of the direction or prohibition, must not, without reasonable excuse, fail to comply with the direction or prohibition. Maximum penalty—1,000 penalty units or imprisonment for 12 months, or both, and, in the case of a continuing offence, a further 100 penalty units for each day the offence continues. 33 Investigation of outbreaks of Legionnaires' disease (cf Microbial Control Reg, cl 14) (1) Any investigation of an outbreak of Legionnaires' disease is to be carried out in accordance with any procedures approved by the Secretary for the purposes of this section. (2) An authorised officer investigating an occurrence of Legionnaires' disease may, by order in writing served on the occupier of the premises, direct that a regulated system that is on the premises and is described in the order be maintained as directed by the order while it is in force. (3) Any such direction is a prescribed maintenance requirement for the purposes of this Division, and prevails to the extent of any inconsistency with any other prescribed maintenance requirement. Note. Such a prescribed maintenance requirement may be enforced by the giving of an improvement notice or prohibition order (see Division 5). Division 3 Control of public swimming pools and spa pools 34 Definitions (cf Swimming Pools Reg, cl 4) In this Division— prescribed operating requirements means requirements prescribed by the regulations with respect to the operation of a public swimming pool or spa pool. public swimming pool or spa pool means a swimming pool or spa pool to which the public is admitted, whether free of charge, on payment of a fee or otherwise, including— (a) a pool to which the public is admitted as an entitlement of membership of a club, or (b) a pool provided at a workplace for the use of employees, or (c) a pool provided at a hotel, motel or guest house or at holiday units, or similar facility, for the use of guests, or (d) a pool provided at a school or hospital, or (e) a pool situated at private residential premises, but only if that pool is used for commercial purposes, or (f) any other pool or spa pool declared by the regulations to be a public swimming pool or spa pool, but not including any pool or spa pool declared by the regulations not to be a public swimming pool or spa pool. spa pool includes any structure (other than a swimming pool) that— (a) holds more than 680 litres of water, and (b) is used or intended to be used for human bathing, and (c) has facilities for injecting jets of water or air into the water. swimming pool includes any structure that is used or intended to be used for human bathing, swimming or diving, and includes a water slide, water play park or other recreational aquatic structure (including any interactive water feature or fountain that is intended to be bathed in for recreational purposes). 35 Operation of premises where public pools are situated (1) If an occupier of any premises at which a public swimming pool or spa pool is situated fails to ensure that the prescribed operating requirements are complied with, the occupier is guilty of an offence. Maximum penalty— (a) in the case of an individual—100 penalty units, or (b) in the case of a corporation—500 penalty units. (2) The occupier of premises at which a public swimming pool or spa pool is situated must not allow a person to use the pool unless the occupier has caused notice of the pool's existence to be given to the person prescribed by the regulations in the approved form and in the manner prescribed by the regulations. Maximum penalty—10 penalty units. 36 Disinfection and cleaning of public pools (cf Swimming Pools Reg, cll 5, 6 and 9) (1) The occupier of premises at which a public swimming pool or spa pool is situated must not allow a person to use the pool unless the water in the pool is disinfected in such a way as to minimise the transmission of disease to the other users of the pool. Maximum penalty—100 penalty units or imprisonment for 6 months, or both. (2) The occupier of premises at which a public swimming pool or spa pool is situated must ensure that the pool surrounds, including any toilets or change rooms, are kept clean and in such condition as to minimise the transmission of disease. Maximum penalty—100 penalty units or imprisonment for 6 months, or both. (3) It is a defence to proceedings for an offence under this section if the defendant satisfies the court that the public swimming pool or spa pool was maintained in accordance with any standards prescribed by the regulations for the purposes of this section. 37 Pools subject to prohibition orders The occupier of premises at which there is a public swimming pool or spa pool the subject of a prohibition order must display a copy of the order in a conspicuous place at or near each entrance to the premises concerned. Maximum penalty—10 penalty units. Division 4 Control of skin penetration procedures 38 Operation of skin penetration procedures (cf Skin Penetration Reg, cl 12) (1) The occupier of premises where skin penetration procedures are carried out must comply with the requirements prescribed by the regulations with respect to such premises. Maximum penalty— (a) in the case of an individual—100 penalty units, or (b) in the case of a corporation—500 penalty units. (2) The occupier of any premises where skin penetration procedures are carried out must cause notice of the carrying out of skin penetration procedures at the premises to be given to the person prescribed by the regulations in the approved form and in the manner prescribed by the regulations. Maximum penalty—10 penalty units. 39 Secretary may give training directions relating to skin penetration procedures (1) The Secretary may serve on a person found guilty of an offence under this Act or the regulations in relation to the conduct of a skin penetration procedure at premises a notice— (a) directing that the person undertake specified training, and (b) prohibiting the carrying out of specified skin penetration procedures at the premises until the training is completed. (2) A person who— (a) is subject to a direction or prohibition under this section, and (b) has notice of the direction or prohibition, must not, without reasonable excuse, fail to comply with the direction or prohibition. Maximum penalty—1,000 penalty units or imprisonment for 12 months, or both. 39A Eyeball tattooing to be carried out by medical practitioner or other qualified person Eyeball tattooing must not be carried out by any person other than— (a) a medical practitioner, or (b) a person, or person belonging to a class of persons, prescribed by the regulations for the purposes of this section. Maximum penalty—100 penalty units or imprisonment for 6 months, or both. Division 5 Improvement notices and prohibition orders 40 Definitions In this Division— enforceable requirement means— (a) a prescribed installation requirement, prescribed maintenance requirement or prescribed operating requirement with respect to a regulated system under Division 2, or (b) a prescribed operating requirement with respect to a public swimming pool or spa pool under Division 3, or (c) a requirement prescribed with respect to premises at which skin penetration procedures are carried out under section 38. public swimming pool or spa pool has the same meaning as it has in Division 3. 41 Non-complying premises or procedures An authorised officer may serve an improvement notice on the occupier of premises at which there is a regulated system or a public swimming pool or spa pool or premises at which a person carries out skin penetration procedures if the officer believes, on reasonable grounds, that— (a) the premises, or a regulated system, public swimming pool or spa pool at those premises, does not comply with an enforceable requirement, or (b) a regulated system, public swimming pool or spa pool at the premises is not being maintained or operated in accordance with an enforceable requirement. 42 Improvement notices (1) An improvement notice is to take the form of a direction that requires a specified enforceable requirement to be complied with within a period of 72 hours (or such longer period as is specified in the notice) after the service of the notice on the occupier or person. (2) The notice may specify the actions to be taken to comply with the requirement. (3) An improvement notice is to state that it is issued under this section and to specify any provision of the regulations to which it relates. 43 Compliance with improvement notice (1) If an improvement notice is complied with, an authorised officer is to note the date of compliance on the notice. (2) An authorised officer must give a copy of an improvement notice, noted in accordance with this section, to the person on whom the improvement notice was served if requested to do so by the person. 44 Failure to comply with notice relating to regulated system (1) The Secretary, a local government authority or the General Manager of a council may take action under this section or section 45 if the occupier of premises at which there is a regulated system fails to comply with an improvement notice. (2) The Secretary, local government authority or General Manager may take the action referred to in the notice and— (a) unless the occupier represents the Crown, may recover an amount equal to the cost of doing so as a debt owed by the person to the Crown or to the local government authority, as the case may be, or (b) if the occupier represents the Crown, may require the occupier to pay to the Secretary or to the local government authority an amount equal to the cost of doing so. (3) An employee assigned, or a contractor engaged, by the Secretary or a local government authority to do any work on regulated premises under this section may, at any reasonable time, enter the premises and do the work or have it done. 45 Prohibition order (1) The Secretary, a local government authority or a General Manager of a council may serve a prohibition order on the occupier of premises if the Secretary, authority or General Manager believes on reasonable grounds— (a) that any of the circumstances in which an improvement notice may be issued exist and that— (i) the occupier has not complied with an improvement notice within the time required under the notice, and (ii) the issue of the prohibition order is necessary to prevent or mitigate a serious risk to public health, or (b) that any of the circumstances in which an improvement notice may be issued exist and that the issue of the order (without first issuing an improvement notice) is urgently necessary to prevent or mitigate a serious risk to public health. (2) A prohibition order made against the occupier of premises at which there is a regulated system is to take the form of an order that the system must not be operated until the occupier has been given a clearance certificate stating that the system may be operated. (3) A prohibition order made against the occupier of premises at which there is a public swimming pool or spa pool is to take the form of an order that the swimming pool or spa pool must not be opened for use by the public until the occupier has been given a clearance certificate stating that the swimming pool or spa pool may be opened for use by the public. (4) A prohibition order made against the occupier of premises at which skin penetration procedures are carried out is to take the form of an order that such procedures must not be carried out at the premises until the occupier has been given a clearance certificate stating that skin penetration procedures may be carried out at the premises. (5) A prohibition order is to state that it is issued under this section and to specify any provision of the regulations to which it relates. (6) The Secretary, local government authority or General Manager who made the prohibition order must give a certificate of clearance if, after an inspection of the premises subject to the order, an authorised officer is satisfied that there is no serious danger to public health. 46 Request for re-inspection (1) An occupier of premises who is subject to a prohibition order may at any time after the order has been served make a written request to the person who made the order to cause the premises to be inspected by an authorised officer. (2) If a request for inspection is made under this section and, through no fault of the person who made the request, the inspection does not take place within 2 working days of the request being received by the person who made the prohibition order, a certificate of clearance is taken to have been given under this Division to the person who made the request. 47 Contravention of prohibition order A person must not fail to comply with a prohibition order served on the person under this Part. Maximum penalty (for an offence in respect of a public swimming pool or spa pool or premises where skin penetration procedures are carried out)— (a) in the case of an individual—200 penalty units, or 12 months imprisonment, or both, and, in the case of a continuing offence, a further 100 penalty units for each day the offence continues, or (b) in the case of a corporation—1,000 penalty units and, in the case of a continuing offence, a further 500 penalty units for each day the offence continues. Maximum penalty (for an offence in respect of a regulated system)— (a) in the case of an individual—500 penalty units, or 12 months imprisonment, or both, and, in the case of a continuing offence, a further 250 penalty units for each day the offence continues, or (b) in the case of a corporation—2,500 penalty units and, in the case of a continuing offence, a further 1,250 penalty units for each day the offence continues. 48 Administrative review of decision to refuse certificate of clearance An occupier of premises on whom a prohibition order has been served may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the person who made the order to refuse to give a certificate of clearance under this Part to the occupier. 49 Compensation (1) A person against whom a prohibition order is made who suffers loss as a result of the making of the order may apply to the person who made the order for compensation if the person against whom the order is made considers that the order was not made in good faith or that there were no grounds for the making of the order. (2) If the order was not made in good faith or there were no grounds for the making of the order, the Secretary, the local government authority or the council (if the order was issued by the General Manager of the council) is to pay such compensation to the applicant as is just and reasonable. (3) The person who made the prohibition order is to determine the compensation payable in accordance with subsection (2). (4) The person who made the prohibition order is to send written notification of its determination as to the payment of compensation under this section to each applicant for the payment of such compensation. (5) If an application for compensation under this section is not determined by the person who made the prohibition order within 28 days of receiving the application, the application is taken to have been refused. (6) An applicant for the payment of compensation under this section who is dissatisfied with a determination as to the refusal to pay compensation or as to the amount of compensation may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the determination— (a) within 28 days after the day on which notification of the determination was received, or (b) in a case to which subsection (5) applies, within 28 days after the expiration of the 28-day period referred to in that subsection. 50 Environmental health registers (1) The regulations may provide for the establishment and maintenance of registers of regulated systems, public swimming pools and spa pools and premises where skin penetration procedures are carried out. (2) Without limiting subsection (1), the regulations may provide for the following— (a) the information to be provided by occupiers of premises required to be registered, (b) the matters to be included in a register, (c) the form of the register. Part 4 Scheduled medical conditions Division 1 Preliminary 51 Definitions (cf 1991 Act, s 3) (1) In this Part— Category 1 condition means a medical condition listed under Category 1 in Schedule 1. Category 2 condition means a medical condition listed under Category 2 in Schedule 1. Category 3 condition means a medical condition listed under Category 3 in Schedule 1. Category 4 condition means a medical condition listed under Category 4 in Schedule 1. Category 5 condition means a medical condition listed under Category 5 in Schedule 1. contact order condition means a medical condition listed in Schedule 1A. (2) The Minister may, by order published on the NSW legislation website, amend or substitute Schedule 1 or 1A. Division 2 General precautions 52 Precautions against spread of certain medical conditions (cf 1991 Act, s 11) (1) A person who— (a) has a Category 2, 3, 4 or 5 condition, and (b) is in a public place, must not fail to take reasonable precautions against spreading the condition. Maximum penalty—100 penalty units or imprisonment for 6 months, or both. (2) It is a defence to proceedings for an offence under this section if the defendant satisfies the court that at the time of commission of the alleged offence, the defendant was not aware that he or she had the medical condition on which the prosecution is based. 53 (Repealed) Division 3 Notification and treatment of Category 1, 2 and 3 conditions and other conditions 54 Medical practitioner to notify Secretary of Category 1 and 2 conditions (cf 1991 Act, ss 14 and 15) (1) This section applies if a registered medical practitioner— (a) attends a person in connection with a Category 1 condition, or (b) while attending a person in connection with any medical condition, reasonably suspects that the person has a Category 2 condition, or (c) as a result of conducting a post-mortem examination, reasonably suspects that a person's cause of death involves a Category 1 or 2 condition. (2) In these circumstances, the registered medical practitioner must, as soon as practicable— (a) record such particulars concerning the person's medical condition as may be prescribed by the regulations, and (b) send to the Secretary a certificate, in the approved form, of the particulars so recorded. (3) The registered medical practitioner— (a) must keep any such particulars for the period prescribed by the regulations, and (b) subject to section 56, must provide the Secretary with such further information concerning the person's medical condition and transmission and risk factors as is available to the medical practitioner and as the Secretary may request. (3A) Subject to section 56, any medical practitioner involved in the treatment of the person concerned must, at the request of the Secretary, provide the Secretary with— (a) such information as is necessary to complete or correct a certificate that appears to be incomplete or incorrect, and (b) such other information concerning the person's medical condition and transmission and risk factors as is available to the medical practitioner. (4) A registered medical practitioner who attends a person as a patient at a hospital is not required to comply with subsection (2) if— (a) the Category 1 or 2 condition concerned is a notifiable disease, and (b) the medical practitioner believes on reasonable grounds that the Secretary has been notified of the disease in accordance with Division 2 of Part 5. (5) A registered medical practitioner must not, without reasonable excuse, fail to comply with the requirements of this section. Maximum penalty—50 penalty units. (6) It is a defence to proceedings for an offence under this section if the defendant satisfies the court— (a) that the record alleged not to have been made or kept, or (b) that the certificate alleged not to have been sent, had been made, kept or sent by another registered medical practitioner. (7) This section applies to a person engaged in an occupation prescribed by the regulations in the same way as it applies to a registered medical practitioner. 55 Laboratories to notify Secretary of Category 3 conditions (cf 1991 Act, s 16) (1) This section applies if— (a) a pathology test is carried out at the request of a registered medical practitioner or other person of a class prescribed by the regulations (the requesting practitioner) for the purpose of determining whether a person has a Category 3 condition, and (b) the test has a positive result. (2) In these circumstances, the person who certifies the test results (the certifier) must send to the Secretary a report, in the approved form, as to those results as soon as practicable. Maximum penalty—50 penalty units. (3) If the certifier so requests, the requesting practitioner must provide the certifier, within 72 hours after the request is made, with sufficient information to enable the report to be completed. Maximum penalty—50 penalty