Division 6Public health
orders—Categories 4 and 5
21Definitions
In this Division:
appropriate reviewer, in relation to
a public health order, means:
(a)
if the order relates to a Category 5 medical
condition and there has been no application to the Tribunal for its
continuation—the Tribunal (as constituted for the purposes of section
25), or
(b)
in any other case—the Tribunal (as
constituted for the purposes of section 26).
authorised medical practitioner
means:
(a)
the Chief Health Officer, Department of Health,
or
(b)
a medical practitioner authorised by the
Director-General to exercise the functions of an authorised medical
practitioner under this Division.
proceeding includes an inquiry and
an application to the Tribunal relating to a matter arising under this
Division.
s 21: Am 1997 No 77,
Sch 5.25 [2] [3].
22Power to require medical
examination
(1)
The Director-General may, by written notice,
require a named person to undergo a medical examination that:
(a)
is carried out by a medical practitioner chosen
by the person, and
(b)
is of a kind described in the
notice,
if the Director-General believes on reasonable grounds
that the person is suffering from a Category 4 or Category 5 medical
condition.
(2)
If:
(a)
a notice under this section is served personally
on the person to whom it relates, and
(b)
the person fails, without reasonable excuse, to
comply with the requirements of the notice,
the person is guilty of an offence.
Maximum penalty: 50 penalty
units.
23Making of public health
order
(1)
An authorised medical practitioner may make a
written public health order in respect of a person if satisfied on reasonable
grounds that the person:
(a)
is suffering from a Category 4 or Category 5
medical condition, and
(b)
is behaving in a way that is endangering, or is
likely to endanger, the health of the public because the person is suffering
from that medical condition.
(2)
A public health order must:
(a)
name the person to whom it applies,
and
(b)
state the circumstances purporting to justify the
making of the order, and
(c)
state that, unless the order is earlier varied as
to its duration or is earlier revoked, it expires a specified number of days
(not exceeding 28) after its service on the person, and
(d)
comply with subsection
(3).
(3)
A public health order must require the person to
whom it applies to do any one or more of the following:
(a)
refrain from specified
conduct,
(b)
undergo specified treatment,
(c)
undergo counselling by a specified person or by
one or more persons belonging to a specified class of
persons,
(d)
submit to the supervision of a specified person
or one or more persons belonging to a specified class of
persons,
(e)
undergo specified treatment and be detained at a
specified place while undergoing the treatment,
(f)
if the order is based on a Category 5 medical
condition—be detained at a specified place while the order is in
force.
(3A)
In making a public health order, the authorised
medical practitioner must take into account:
(a)
such guidelines relating to public health orders
as may be approved by the Director-General from time to time,
and
(b)
the principle that any requirement restricting
the liberty of the person to whom the order applies should be imposed only if
it is the only effective way to ensure that the health of the public is not
endangered or likely to be endangered.
(4)
A public health order may include provisions
ancillary to, or consequential upon, the matters required to be included in
the order.
(5)
A public health order does not take effect until
it is served personally on the person to whom it
applies.
s 23: Am 1994 No 19,
Sch 1 (2).
24Duration of public health
order
(1)
A public health order that relates to a Category
5 medical condition ceases to have any effect if:
(a)
the person subject to the order is not, within 3
business days after service on the person of the order, also served with a
copy of an application made to the Tribunal for confirmation of the order
under section 25, or
(b)
such an application is made and the Tribunal
revokes the order under section 25, or
(c)
the order expires before it is confirmed or
revoked by the Tribunal under section 25, or
(d)
the order expires before or after an application
to continue the order is made to the Tribunal under section
26.
(2)
In this section, business days means successive days
excluding any Saturday, Sunday and public holidays.
s 24: Am 1997 No 77,
Sch 5.25 [5].
25Tribunal to review certain
public health orders
(1)
An application may be made to the Tribunal for
confirmation of a public health order based on a Category 5 medical
condition.
(2)
The Tribunal is, as soon as practicable, to
inquire into the circumstances surrounding the making of the order and:
(a)
if satisfied that the making of the order was
justified—is to confirm the order or vary the order and confirm it as
varied, or
(b)
if not so satisfied—is to revoke the
order.
(3)
The Tribunal may vary the order only by:
(a)
adding a requirement that could have been
included in the order when made, or
(b)
substituting any such requirement for any one or
more of them already included in the order.
(4)
The Tribunal may, from time to time, adjourn an
inquiry under this section for not more than 7 days.
(5)
For the purposes of an inquiry under this
section, the Tribunal may:
(a)
obtain the assistance of any person having
medical or other qualifications relevant to the subject-matter of the inquiry,
and
(b)
take into account a certificate given by such a
person.
(6)
A decision of the Tribunal made in proceedings
determining an application under this section is an appealable decision for
the purposes of Part 1 of Chapter 7 of the Administrative
Decisions Tribunal Act 1997.
s 25: Subst 1997 No
77, Sch 5.25 [6].
26Tribunal may continue public
health order
(1)
An authorised medical practitioner may, before
the expiration of a public health order, apply to the Tribunal for
continuation of an order if:
(a)
the order is based on a Category 4 medical
condition, or
(b)
the order is based on a Category 5 medical
condition and has been confirmed by the Tribunal under section
25.
(2)
An application for continuation of a public
health order may be made under this section only if the applicant is
satisfied, on reasonable grounds, that the person to whom the order relates
would, if not subject to such an order, continue to endanger the health of the
public as a consequence of suffering from a Category 4 or Category 5 medical
condition.
(3)
If continuation of a public health order is
applied for under this section and the person subject to the order notifies
the Tribunal that continuation of the order is not opposed, the Tribunal may,
without inquiry, continue the order for a period not exceeding 6
months.
(4)
Unless the order is continued under subsection
(3), the Tribunal is to make such inquiries as it thinks fit in relation to
the application and may:
(a)
continue the order, with or without variation,
for a period not exceeding 6 months, or
(b)
refuse to continue the order,
or
(c)
revoke the order.
(5)
The Tribunal may vary the order only by:
(a)
omitting a requirement included in the order,
or
(b)
adding a requirement that could have been
included in the order when made, or
(c)
substituting any such requirement for any one or
more of them already included in the order.
(6)
For the purposes of an inquiry under this
section, the Tribunal may:
(a)
obtain the assistance of any person having
medical or other qualifications relevant to the subject-matter of the inquiry,
and
(b)
take into account a certificate given by such a
person.
s 26: Subst 1997 No
77, Sch 5.25 [6].
27Conditions applicable if
person detained
(1)
A person detained under the authority of a public
health order may be so detained subject to such conditions with respect to the
person’s security as the medical practitioner making the order considers
necessary in the interests of the health of the public and specifies in the
order.
(2)
A person detained under the authority of a public
health order may, for any special reason accepted by an authorised medical
practitioner, be permitted to leave the place of detention, but only under the
constant personal supervision of a person, or any one of a number of persons,
nominated by the medical practitioner.
(3)
A person who is detained under a public health
order and:
(a)
is in breach of a condition specified in the
order, or
(b)
evades supervision to which he or she is subject
under this section,
is to be taken to have contravened the public health
order.
28Offence to contravene public
health order
(1)
If the person to whom a public health order
applies contravenes the order, the person is guilty of an
offence.
Maximum penalty: 50 penalty units or imprisonment
for 6 months, or both.
(2)
Proceedings for an offence under this section may
be brought only by the Director-General or a police
officer.
(3)
Prosecution for an offence under this section
does not preclude action under section 30 in respect of the contravention on
which the prosecution is based.
29Apprehension of person who
contravenes public health order
(1)
A certificate by an authorised medical
practitioner to the effect that a named person is contravening a public health
order is a sufficient ground for the issue to a police officer of a warrant to
apprehend the person and detain the person in custody pending an inquiry under
section 30.
(2)
A police officer who is provided with such a
certificate is, as soon as practicable, to:
(a)
obtain a warrant for which the certificate is a
ground, and
(b)
apprehend the person named in the certificate,
and
(c)
detain the person in custody pending an inquiry
under section 30.
(3)
Section 27 applies in relation to detention
following apprehension under this section in the same way as it would apply if
the certificate that led to the apprehension had been a public health
order.
30Action following apprehension
or surrender
(1)
If a person alleged to have contravened a public
health order:
(a)
is apprehended and brought before the appropriate
reviewer, or
(b)
appears voluntarily before the appropriate
reviewer,
the reviewer is to inquire into the
allegation.
(2)
If, after inquiry, the appropriate reviewer is
not satisfied that the person has contravened a public health order, it is to
order that the person be discharged.
(3)
If, after inquiry, the appropriate reviewer is
satisfied that a person has contravened a public health order, it may confirm
the public health order or:
(a)
vary the public health order by adding a
requirement, direction or other provision that could have been included in the
order when made, or
(b)
vary the public health order by substituting any
such requirement, direction or other provision for any one or more of them
already included in the order, or
(c)
caution the person and take no further action in
the matter.
(4)
A person may be dealt with under this section in
respect of an alleged contravention of a public health order whether or not
the person has been charged under section 28 for an offence in relation to the
same contravention.
s 30: Am 1997 No 77,
Sch 5.25 [4] [7].
31Revocation of public health
order by authorised medical practitioner
If an authorised medical practitioner considers
that the person to whom a public health order applies is no longer
endangering, or likely to endanger, the health of the public, the medical
practitioner is to revoke the order and immediately give written notice of the
revocation to:
(a)
the person to whom the order applied,
and
(b)
the appropriate
reviewer.
s 31: Am 1997 No 77,
Sch 5.25 [4].
32Restriction on making of
further public health order
(1)
This section applies to a person who was the
subject of a public health order if:
(a)
the order was revoked by the Tribunal under
section 25 or 26, by an authorised medical practitioner under section 31 or on
an appeal against the order, or
(b)
the Tribunal has refused under section 26 to
continue the order.
(2)
A further public health order may be made in
respect of a person to whom this section applies only if the authorised
medical practitioner proposing to make the further order is satisfied on
reasonable grounds that, since the earlier order ceased to have effect, there
has been a change in the person’s health or behaviour which increases
the risk of endangering the health of the public.
s 32: Am 1997 No 77,
Sch 5.25 [8].
33Apprehension of
escapee
(1)
If a person detained under a public health order
or following apprehension under section 29 escapes from the place of
detention, he or she may be apprehended at any time by:
(a)
the person for the time being in charge of the
place from which the person escaped, or
(b)
an authorised medical practitioner,
or
(c)
a police officer, or
(d)
any person assisting a person referred to in
paragraphs (a)–(c).
(2)
On being apprehended, the escapee must be
returned to the place from which he or she escaped.
34Unlawful release from
detention
(1)
A person who, without lawful authority, releases,
or attempts to release:
(a)
a person detained under a public health order or
following apprehension under section 29 or 33, or
(b)
a person being conveyed to a place at which he or
she is to be so detained,
is guilty of an offence.
Maximum penalty: 50 penalty units or imprisonment
for 6 months, or both.
(2)
It is a defence to a prosecution for:
(a)
an offence under this section,
or
(b)
aiding, abetting, counselling or procuring the
escape of a person detained under a public health order or following
apprehension under section 29 or 33,
if it is proved that the action of the defendant did not
endanger the health of the public and that the defendant knew this to be
so.
35Restrictions on
publication
(1)
The court in which proceedings under this
Division have been instituted or are being heard may make orders having the
effect of prohibiting or restricting the publication of matters relating to
the proceedings or to a person in respect of whom the proceedings have been
instituted.
(2)
The orders that a court may make under this
section include orders prohibiting or restricting publication of any one or
more of the following:
(a)
any report that relates to the
proceedings,
(b)
the identity of the person in respect of whom the
proceedings have been instituted,
(c)
any information from which the identity of that
person could be deduced,
(d)
any information from which could be deduced the
identity of a person in respect of whom a public health order is, or at any
time was, sought or made, whether or not in the
proceedings.
(3)
An order under this section may be made by the
court of its own motion or on the application of a party to the
proceedings.
(4)
If an application under this section is made by a
party to the proceedings, the onus is on the other party to show cause why the
application should be refused.
(5)
An order made under this section does not operate
to prevent publication of a report of the proceedings if:
(a)
the report is published in a genuine volume of
law reports, a legal journal or any other publication intended to be read
mainly by Australian lawyers, Magistrates and Judges, and
(b)
the person in respect of whom the proceedings
were instituted, or in respect of whom a public health order is sought or
made, is not identified in the report.
(6)
A person who contravenes an order in force under
this section (whether aware of the order or not) is guilty of an
offence.
Maximum penalty:
(a)
in the case of a corporation—100 penalty
units, or
(b)
in any other case—50 penalty units or
imprisonment for 6 months, or both.
(7)
This section does not prevent punishment, as a
contempt, of a contravention of an order made in proceedings before a court
but, in respect of such a contravention, a person may not be dealt with both
for a contempt of the court and by prosecution for an
offence.
(8)
In this section:
publish means:
(a)
publish in a newspaper, magazine or other
periodical publication, or
(b)
publish by radio or television transmission,
or
(c)
include in a cinematographic film or videotape
that is, or is to be, available to the public, or
(d)
include in a book or sound recording that is, or
is to be, available to the public, or
(e)
make known to the public in any other manner or
by any other means.
s 35: Am 2008 No 62,
Sch 3.8 [1].
36Inspection of medical
records
(1)
A person to whom a public health order applies,
or the authorised agent of such a person, is, unless the appropriate reviewer
otherwise directs, entitled to inspect, and make copies of, medical records
relating to the person that are kept by another person.
(2)
If the medical records are not kept in a readable
form, the person in charge of the records is to provide a readable copy of
them.
s 36: Am 1997 No 77,
Sch 5.25 [4].