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,