Public Health Act 1997 (Tas)

Public Health Act 1997 An Act to protect and promote the health of communities in the State and reduce the incidence of preventable illness [Royal Assent 14 January 1998] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Public Health Act 1997 . 2. Commencement This Act commences on a day or days to be proclaimed. 3. Interpretation In this Act – activity includes any activity existing, proposed or partly completed or undertaken; Advisory Committee means the Public Health Advisory Committee established under section 37 ; Agency means an Agency within the meaning of the State Service Act 2000 ; air-handling system means a system that directs air in a positive and controlled manner to and from specific enclosures by means of air-handling plant, ducts, plenums, air-distribution devices or control devices; ancillary tobacco product – see section 72A ; Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; approved means approved by the Director; approved form means a form that – (a) is approved by the Director; or (b) contains information approved by the Director; area includes any geographic location; authorised officer means – (a) the Director; or (b) a medical officer of health; or (c) an environmental health officer; carton means a package that contains more than one packet of cigarettes; certificate of authority means a certificate issued under section 31 ; certificate of registration as a supplier of water from a private water source means the certificate referred to in section 136 ; certificate of registration as a water carrier means the certificate referred to in section 136H ; certificate of registration of premises means the certificate referred to in section 98 ; certificate of registration of regulated system means the certificate referred to in section 116 ; cervical cancer means the malignant growth of human tissue in the uterine cervix which – (a) if unchecked, is likely to spread to adjacent tissue and beyond its site of origin; and (b) has a tendency to recur; cervical cancer test means a test or procedure which may indicate whether or not a person is suffering from cancer of the uterine cervix or any of its precursors; Cervical Screening Register means the register maintained under Division 1 of Part 7 ; child means a person who has not attained the age of 18 years; child-care facility means any facility used for the care of children; cigarette shipper means packaging that contains more than one carton; clinical assessment means an assessment of the health of a person and includes, but is not limited to including, the following: (a) any physical or psychological examination; (b) the taking of samples of any substance or secretion from the body of a person; (c) an assessment of the health of a person whether by viewing, listening to, or corresponding with, the person or by another method; (d) tests to determine the health of the person; (e) any other prescribed method of assessing the health of a person; closure order means a closure order and an interim closure order in force under Division 2 of Part 5 ; concealed storage facility means – (a) a storeroom, cellar or other enclosed place; or (b) a cupboard, locker or drawer – that – (c) is inaccessible to the public; and (d) is kept closed, except when there is an immediate need to put things in it or take things from it; and (e) when closed, cannot be seen into by the public; confectionery includes – (a) sweets, chocolates and candy; and (b) popcorn and other snack foods containing potato, nuts or cereal; and (c) confectionery novelties; and (d) muesli bars, fruit bars, health food bars and other similar products; consent means consent given – (a) without any force, fraud or threat; and (b) with knowledge and understanding of the medical and social consequences of the matter to which the consent relates; cooling tower means – (a) a device that lowers the temperature of water by evaporative cooling in which atmospheric air is in contact with falling water thereby exchanging heat; or (b) a device referred to in paragraph (a) that incorporates a water-refrigerant exchanger or water-water heat exchanger; corresponding register means a register that – (a) is established under a law of the Commonwealth, another State or a Territory; and (b) contains information of a kind held on the Cervical Screening Register; council fee means a fee imposed by a council under section 185 ; COVID-19 disease means the disease known as coronavirus disease 2019 (COVID-19); designated smoking area means an area that is specified, in an approval under section 67I that is in force, to be a designated smoking area; Director means the Director of Public Health appointed under section 6 ; director, in relation to a body corporate, includes – (a) a person occupying or acting in the position of a director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position; and (b) any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act; disease includes – (a) any sickness or illness which may cause a disruption of human body functions, systems or organs; and (b) any notifiable disease; and (c) any symptoms, signs or conditions, associated with a disease; electronic dispensing unit – see section 71 ; emergency declaration means a declaration made under section 14 ; enclosed means – (a) having a ceiling or roof; and (b) being completely or substantially enclosed by walls or windows, except for doors and passageways; enclosed public place means a place for the use of the public which – (a) has a ceiling or roof; and (b) except for doors and passageways, is completely or substantially enclosed by walls or windows; environmental health officer means a person appointed under section 10 or 11 ; excluded person means a mortgagee, lessor or financial institution not having actual or complete control, access, use or management of a place, vehicle or other thing; exempt device means – (a) a device designed to be used for the purpose of delivering oxygen into a person's body; and (b) a device, object or product used, or designed to be used, to deliver a controlled substance, within the meaning of the Misuse of Drugs Act 2001 , into a person's body; and (c) any of the following goods, or devices, included in the Australian Register of Therapeutic Goods maintained under section 9A of the Therapeutic Goods Act 1989 of the Commonwealth: (i) therapeutic goods within the meaning of that Act; (ii) a medical device within the meaning of that Act; (iii) a therapeutic device within the meaning of that Act; and (d) a device or object prescribed by the regulations to be an exempt device; exempt system means a system or process declared under section 112A to be an exempt system; food has the same meaning as in the Food Act 2003 ; general manager means a general manager as defined in the Local Government Act 1993 ; guidelines means guidelines issued under section 184 and, while an amendment to a guideline under section 17A is in force, means a guideline as so amended; health officer means – (a) an environmental health officer; or (b) a medical officer of health; hot-water system means a system that heats and delivers water at a temperature at or above 60oC; HPV vaccination information means information contained in the National HPV Vaccination Program Register; humidifying system means a system which adds moisture to air; information register means a register referred to in Division 2 of Part 7 ; infringement notice means an infringement notice referred to in Division 6 of Part 8 ; interim closure order means an order in force under section 87(2) ; laboratory means a laboratory whether associated with a hospital or not; licensed premises has the meaning assigned to that expression in section 3 of the Liquor Licensing Act 1990 ; medical officer of health means a person appointed under section 10 or 11 ; Medicare Australia means the body of that name established by the Human Services (Medicare) Act 1973 of the Commonwealth; multiple-use building means a building used or intended to be used for domestic and other purposes; National HPV Vaccination Program Register means the register of that name established and kept under section 9BA of the National Health Act 1953 of the Commonwealth; nominated officer means – see section 13A ; non-domestic building means a building used or intended to be used for purposes other than domestic; non-tobacco cigarette means a rolled cylinder that contains a substance or a herb or other plant matter, other than tobacco, that is intended for smoking; notifiable contaminant means – (a) an organism, or substance, that is – (i) declared in a notice under section 40(b) to be a notifiable contaminant; or (ii) a member of a class of organisms or substances, members of which are declared in a notice under section 40(b) to be notifiable contaminants; and (b) a toxin that is produced by – (i) an organism that is declared in a notice under section 40(b) to be a notifiable contaminant; or (ii) a member of a class of organisms, members of which are declared in a notice under section 40(b) to be notifiable contaminants; notifiable disease means – (a) a disease declared in a notice under section 40 to be a notifiable disease; and (b) a disease that is a member of a class of diseases, members of which are declared in a notice under section 40 to be notifiable diseases; occupier, in relation to a place, means – (a) the holder of any right at law to use or carry on operations at that place other than an excluded person; or (b) if a place is occupied by different persons in different parts – (i) the person occupying each part; and (ii) the holder of any right at law to use or carry on operations in that place other than an excluded person; outdoor dining area means an area that is not enclosed and that contains tables or seating provided by the occupier of licensed premises, a restaurant, a cafe, a snack bar or a takeaway food shop for the use of its customers to consume solid food; outdoor smoking area has the meaning given by section 3A ; owner includes – (a) an occupier; and (b) a person in charge of or operating any premises; package includes – (a) a box, carton, cylinder, packet, pouch, tin and wrapping; and (b) the material or substance from which a package is made; packet means an individual packet containing a tobacco product; personal information, in relation to a person, means the person's name, address and contact details; personal quantity, of smoking product, means a small quantity for personal use, not in any event exceeding – (a) a single package of cigarettes; or (ab) a single personal vaporiser product; or (b) a single package of cigars; or (c) a single package of tobacco; personal vaporiser product means any of the following, other than an exempt device: (a) an electronic cigarette, or a device, object or product, that – (i) with or without modification, is capable of heating any substance into an aerosol, mist or vapour which is inhaled into a person's body; and (ii) has one or more of the following parts: (a) a battery; (b) an electronic heating element; (c) a cartridge or container capable of holding a substance; (b) each part of an electronic cigarette, or a device, object or product, referred to in paragraph (a) ; (c) a substance or item apparently intended, with or without modification, to be used in connection with an electronic cigarette, or a device, object or product, referred to in paragraph (a) ; (d) a device, object, or product, that is prescribed by the regulations to be a personal vaporiser product; place of assembly includes – (a) any place or area used for the entertainment of members of the public; and (b) any place or area used for the assembly of members of the public for social and recreational purposes; and (c) any school or other place or area used for community or public purposes; place of assembly licence means a licence in force under Division 1 of Part 5 ; plain sales unit means a sales unit that – (a) is not displaying any wording or imagery that contravenes the guidelines; and (b) does not have any mirror or other reflective device; and (c) does not have any interior or exterior lighting; and (d) does not have any lighting directed specifically at it, whether from a spotlight, down light or otherwise or whether the illumination is constant or intermittent; and (e) is not fitted with or connected to any device capable of causing the sales unit (or any part of it) or its contents (or any of its contents) to move in a way that is visible to the public; and (f) is not displaying any wording, trademarks or colour schemes usually used in the packaging of any smoking product held in it; and (g) is not displaying any partial wording or imagery of any packaging of smoking product held in it; and (h) has no lines, borders or other visual design effects that make it stand out; and (i) is not linked to any hologram; premises includes – (a) land; and (b) a building or part of a building; and (c) a structure or part of a structure; and (d) fences, walls, outbuildings, service installations and other appurtenances of a structure; and (e) a tent, stall or other temporary structure; and (f) a boat or a pontoon; private water source means a source of water used to supply water for human consumption, other than water infrastructure used by a regulated entity for that purpose; product line, in relation to a smoking product, means a kind of smoking product distinguishable from another kind of smoking product by any one or more of the following characteristics: (a) its length, mass or volume; (b) its content; (c) its brand name or trade mark; (d) in the case of a packet of cigarettes or cigars, the number of cigarettes or cigars in the packet; proof of age means – (a) a driver's licence; or (b) a passport; or (c) a class of document specified in the guidelines for the purpose of this definition; public includes any person working in an enclosed public place; public authority means – (a) any council; or (b) any body corporate established under an enactment having jurisdiction limited to a district, locality or part of the State; or (c) any body corporate established under an enactment or in the exercise of prerogative rights of the Crown to administer or control any department, business, undertaking or public institution on behalf of the State; public health means the physical, mental and social wellbeing of the community; public health emergency means any situation in which a threat to public health is likely to occur; public health risk activity means any activity which may result in the transmission of disease; public notice means a notice published in the Gazette and a daily newspaper circulating generally in the State; public office means the place at which a council carries on its administrative activities; public place includes a place to which the public ordinarily has access, whether or not by payment or invitation; public street means a public street as defined in the Traffic Act 1925 , and includes a part of such a street; publish includes – (a) publish material in a printed format which is available to the public; or (b) publish material by any electronic means; or (c) publish material by radio or television transmission; or (d) provide material in a cinematographic film or videotape which is available to the public; or (e) provide material in a book or sound recording which is available to the public; or (f) make known to the public in any other manner or by any other means; record includes – (a) a document and register; and (b) an electronic record; rectification notice means a notice in force under section 92 ; register includes any method or database for the compilation of information; registered means registered under this Act; regulated entity means a regulated entity within the meaning of the Water and Sewerage Industry Act 2008 ; regulated system means any of the following other than an exempt system: (a) an air-handling system; (b) a cooling tower; (c) a warm-water system; (d) a hot-water system; (e) a humidifying system; (f) a system or process declared under section 112A to be a regulated system; regulations means regulations made and in force under this Act; residential care facility means a facility that provides residential care; roof includes any structure or device, whether fixed or movable, that prevents or impedes upward airflow; sales unit means – (a) in the case of specialist tobacconist premises, a receptacle, area of shelving, electronic dispensing unit or other thing from which tobacco products are dispensed when sold; or (b) in the case of retail premises other than specialist tobacconist premises, a receptacle, area of shelving, vending machine, electronic dispensing unit or other thing from which smoking products are dispensed when sold; sell includes – (a) dispose by any method for valuable consideration; and (b) barter or exchange; and (c) dispose to an agent for sale on consignment; and (d) offer or expose for sale; and (e) keep or have in possession for sale; and (f) agree to sell; and (g) send, forward or deliver for sale; and (h) dispose by way of raffle, lottery or other game of chance; and (i) provide a sample; smoke means – (a) any smoke, fumes, vapour, mist or aerosol emitted from a smoking product, non-tobacco cigarette, non-tobacco cigar, non-tobacco pipe or other non-tobacco smoking device; and (b) to inhale, puff, draw or vape any smoke, fumes, vapour, mist or aerosol whilst using a smoking product, non-tobacco cigarette, non-tobacco cigar, non-tobacco pipe or other non-tobacco smoking device; and (c) to hold or otherwise have control over – (i) a tobacco product while it is ignited; or (ii) a non-tobacco cigarette, non-tobacco cigar, non-tobacco pipe or other non-tobacco smoking device while it is ignited; or (iii) a personal vaporiser product while it is activated; smoke-free area means an area or place referred to in section 67B(1) but does not include any part of a smoke-free area that is a designated smoking area; smoking accoutrement means any of the following tobacco products: (a) a cigar cutter; (b) a cigarette holder; (c) a cigarette roller; (d) a packet of cigarette papers; (e) a pipe; (f) a tobacco filter; smoking product means either or both of the following: (a) any tobacco product; (b) any personal vaporiser product; smoking product advertisement means writing, a still or moving picture, a sign, symbol or other visual image, or visual message, an audible message, or a combination of 2 or more visual images, visual messages or audible messages, that gives publicity to, or otherwise promotes or is intended to promote – (a) the purchase or use of any smoking product; or (b) the trademark or brand name, or part of a trademark or brand name, of any smoking product; smoking product licence means a licence to sell smoking product in force under Division 3 of Part 4 ; solid food means food other than beverages; specialist tobacconist premises means – (a) premises that are operated independently and apart from any other retail business and where only tobacco, tobacco products, matches and cigarette or pipe lighters are sold; or (b) premises that, under section 72B , are determined to be specialist tobacconist premises; takeaway food shop means premises where the primary function is the sale of solid food that is ready for immediate consumption with the intention that the food will be consumed elsewhere than in those premises; threat to public health means any event or circumstance which is likely to – (a) damage, injure or compromise public health; or (b) prevent or restrict the improvement of public health; tobacco product means any of the following: (a) tobacco in any form; (b) any product of which tobacco is an ingredient; (c) any device or article designed or intended only for use in connection with tobacco; (d) any prescribed product; (e) any package, or cigarette shipper, containing a thing referred to in paragraph (a) , (b) , (c) or (d) of this definition; vehicle includes any vessel or aircraft; vending machine – see section 71 ; warm-water system means a system that heats and delivers water at a temperature below 60oC; warrant means a warrant issued under section 43 ; water includes – (a) any potable water; and (b) any reticulated water; and (c) any ground water; and (d) any water supplied from tanks, dams or springs; and (e) any recreational water; and (f) any man-made, modified or natural body of water; and (g) any water used in food processing or manufacturing processes; and (h) any water in which shellfish or fish are grown or from which shellfish or fish are taken; and (i) any water used in a regulated system; wharf includes any structure that extends beyond the low-water mark; workplace means any premises or place where an employee, contractor or self-employed person is employed or engaged in any industry. 3A. Meaning of "outdoor smoking area" (1) In this Act, an area is an outdoor smoking area if – (a) it is provided for the use of customers who smoke by the occupier of – (i) premises to which a licence or permit under the Liquor Licensing Act 1990 applies; or (ii) premises in which an outdoor dining area is provided; and (b) it is not serviced; and (c) it is an area that – (i) does not have a roof; or (ii) has a roof and a perimeter where not more than 50% of the perimeter consists of walls and windows (whether open or closed); or (iii) is of a class determined by the Director by notice in the Gazette to be an open area; or (iv) on the application of an occupier of premises to which a licence or permit under the Liquor Licensing Act 1990 applies, has been determined by the Director by notice provided to that occupier to be an open area. (2) For the purposes of subsection (1)(b) – service, in relation to an area, includes the delivery of beverages and snacks or other food to customers in that area. 4. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. 5. Act prevails Any provision of this Act which is inconsistent with a provision of any other Act prevails over the latter provision to the extent of that inconsistency. PART 2 - Administration Division 1 - Authorised officers, &c. 6. Director of Public Health (1) A person is to be appointed as Director of Public Health subject to and in accordance with the State Service Act 2000 . (2) A person appointed under subsection (1) must – (a) be a medical practitioner; and (b) have qualifications in the area of public health. 7. General functions and powers of Director (1) The functions of the Director are – (a) to develop and implement strategies to promote and improve public health; and (b) to ensure that the provisions of this Act are complied with; and (c) to advise the Minister on any changes to this Act that may be necessary or appropriate; and (d) to carry out any other function for the purpose of this Act the Minister determines. (2) The Director may do anything necessary or convenient to perform any functions under this Act. (3) The Minister may give the Director directions in respect of any power or function of the Director under this Act and the Director must comply with the directions. 8. Report on public health (1) The Director is to submit to the Minister a report on the status of public health in the State – (a) as soon as practicable after the commencement of this Act; and (b) at 5-yearly intervals. (2) The Minister is to cause a report to be tabled in both Houses of Parliament. 9. Delegation by Director (1) The Director may delegate any of his or her functions or powers, other than this power of delegation, to any person, class of person, public authority or Agency. (2) The Director is not to delegate any function or power to a council without that council's consent. (3) The Director is not to revoke a delegation to a council without consulting that council. 10. Environmental health officers and medical officers of health – appointment by Director (1) The Director may appoint, for the purposes of this Act, persons employed by any Agency, who hold approved qualifications, as – (a) environmental health officers; or (b) medical officers of health. (2) A person appointed under subsection (1) as an environmental health officer or a medical officer of health holds office in conjunction with his or her employment by an Agency. (3) If a person was appointed or purportedly appointed under this section, on a day before Part 11 of the Health Legislation (Miscellaneous Amendments) Act 2022 commenced, as an environmental health officer or a medical officer of health (a relevant officer) – (a) the person is to be taken to have been, and to always have been, validly appointed as a relevant officer for the period – (i) beginning on and from the day on which the person was purportedly so appointed; and (ii) ending on the day on which, if the person had been validly appointed, the person ceased to be so appointed; and (b) the performance of a function or exercise of a power in good faith, or purported performance of a function or exercise of a power in good faith, by such a relevant officer is not invalid solely on the basis that his or her appointment as a relevant officer has been validated under this subsection. (4) Despite subsection (3) , all appointments under this section that were in force immediately before Part 11 of the Health Legislation (Miscellaneous Amendments) Act 2022 commenced are revoked on the day on which that Part commenced. 11. Appointment of officers (1) The general manager of a council may appoint – (a) persons who are medical practitioners as medical officers of health; or (b) persons with approved qualifications as environmental health officers. (2) The general manager of a council, if required by the Director, must appoint – (a) persons who are medical practitioners as medical officers of health; or (b) persons with approved qualifications as environmental health officers. (3) If the general manager of a council fails to appoint a person within 3 months after being required to do so under subsection (2) , the Director may make the appointment on behalf of the general manager on any terms the Director considers appropriate. (4) If the Director is satisfied that the general manager of a council has reasonable grounds for not appointing a person with approved qualifications as an environmental health officer, the Director may – (a) allow the general manager to appoint a person who does not have those approved qualifications; or (b) allow the general manager to appoint a person on any terms and conditions the Director determines; or (c) exempt the general manager from being required to appoint a person. 12. Approved qualifications The Director may approve the qualifications required for appointment under section 10 or 11 generally or for a particular appointment. 13. Functions of officers (1) The general manager of a council is to ensure that a medical officer of health and an environmental health officer carry out any functions the Director directs the council to carry out. (2) Medical officers of health and environmental health officers are to – (a) ensure that the provisions of this Act are complied with within the municipal area in respect of which they are appointed; and (b) assist in the preparation of any reports required to be made by a council under this Act. 13A. Nominated officers (1) For the purposes of this Act, each of the following is a nominated officer: (a) the Director; (b) a health officer; (c) a police officer; (d) a person approved by the Director; (e) a member of a class of persons approved by the Director. (2) An approval under paragraph (d)