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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Public Health and Wellbeing Bill 2008
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
3 Definitions 2
PART 2--OBJECTIVE, PRINCIPLES AND APPLICATION 19
4 Objective 19
5 Principle of evidence based decision-making 20
6 Precautionary principle 20
7 Principle of primacy of prevention 20
8 Principle of accountability 20
9 Principle of proportionality 21
10 Principle of collaboration 21
11 Principles applying to Part 8 21
12 Application of Part 6 to areas outside a municipal district 21
13 Act binds the Crown 23
14 Extra-territorial operation of Divisions 2 and 8 of Part 8 23
PART 3--ADMINISTRATION 25
Division 1--The Minister and the Secretary 25
15 Delegation by Minister 25
16 Secretary 25
17 Role and functions of the Secretary 26
18 Secretary subject to direction of Minister 28
19 Delegation by Secretary 28
Division 2--The Chief Health Officer 29
20 Chief Health Officer 29
21 Functions and powers of the Chief Health Officer 30
22 Power of delegation 31
23 Provision of staff and contractors 31
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Division 3--Councils 32
24 Function of Councils 32
25 Secretary may require report from Council 33
26 Municipal public health and wellbeing plans 33
27 Inclusion of public health and wellbeing matters in Council
Plan or Strategic Plan 35
28 Special powers of Secretary in a state of emergency 36
Division 4--Officers 37
29 Appointment of environmental health officers 37
30 Secretary may appoint authorised officers 38
31 Councils may appoint authorised officers 39
32 Analysts 40
PART 4--CONSULTATIVE COUNCILS 41
Division 1--General provisions 41
33 Consultative Councils 41
34 Assistance to Consultative Council 42
35 Proceedings of a Consultative Council 42
36 Sub-committees 43
37 Operation of Consultative Councils 43
Division 2--Provisions applying to prescribed Consultative
Councils 44
38 Functions of certain prescribed Consultative Councils 44
39 Request to provide information to prescribed Consultative
Council 45
40 Provision of prescribed information to prescribed Consultative
Council 46
41 Disclosure of information held by a prescribed Consultative
Council 46
42 Confidentiality obligations applying in respect of a prescribed
Consultative Council 48
43 Confidentiality of documents 50
Division 3--Provisions applying to the Consultative Council on
Obstetric and Paediatric Mortality and Morbidity 51
44 Consultative Council on Obstetric and Paediatric Mortality
and Morbidity 51
45 Constitution of CCOPMM 51
46 Functions of CCOPMM 52
47 Request to provide information in relation to the death of
children 54
48 Report of birth 54
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PART 5--GENERAL POWERS 56
Division 1--State Public Health and Wellbeing Plan 56
49 Minister to ensure preparation of State Public Health and
Wellbeing Plan 56
Division 2--Public inquiries 57
50 Public inquiry 57
51 Conduct of public inquiry 58
52 Report of public inquiry 59
Division 3--Health Impact Assessments 59
53 Health Impact Assessment 59
Division 4--Collection and disclosure of information 60
54 Application of Division 60
55 Disclosure of information to specified persons 60
56 Secretary may disclose information in certain circumstances
to a relevant body 60
57 Disclosure of information to other administrators 61
PART 6--REGULATORY PROVISIONS ADMINISTERED BY
COUNCILS 63
Division 1--Nuisances 63
58 Application of Division 63
59 Effect of Division 64
60 Duty of Council 64
61 Offence of causing a nuisance 64
62 Notification of nuisance 64
63 Failure of Council to investigate complaint 65
64 Who can institute proceedings? 66
65 Power of Council to investigate nuisance outside its municipal
districts 66
66 Nuisance on unoccupied land or occupied land--occupier and
owner unknown or cannot be found 67
Division 2--Registration of prescribed accommodation 68
67 Registration of prescribed accommodation 68
Division 3--Registration of certain businesses 68
68 Application of Division 68
69 Registration of premises 69
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Division 4--General provisions relating to registration 69
70 Application of Division 69
71 Application for registration 70
72 Registration fees 70
73 Powers of the Council 71
74 Provisions applying in respect of registration 72
75 Registration subject to conditions 72
76 Powers of a Council in respect of registration 73
77 Council's delegation of power to refuse applications 74
78 Issue of replacement certificate 74
PART 7--REGULATORY PROVISIONS ADMINISTERED BY
THE SECRETARY 75
Division 1--Cooling tower systems 75
79 When is a cooling tower system in operation? 75
80 Cooling tower system must be registered 75
81 Applications for registration or renewal of registration 76
82 Powers of the Secretary 76
83 Processing of applications 76
84 Multiple cooling tower systems 77
85 Period of registration 77
86 Registration to continue pending renewal 78
87 Secretary to be notified of certain changes 78
88 Secretary to be notified of other changes 79
89 Cooling tower system register 79
90 Issue of replacement certificate 80
91 Owner must ensure risk management plan prepared 80
92 Owner must ensure risk management plan reviewed 81
93 Owner must ensure risk management plan audit conducted 82
94 Certification of approved auditors 84
95 Only approved auditors may conduct audits 85
96 Offence to impersonate approved auditor 85
97 Conflict of interest to be avoided 85
98 Secretary may declare optional variations 86
Division 2--Pest control 87
99 Use of certain pesticides prohibited 87
100 Exemption 87
101 Issue or renewal of pest control licences 88
102 Duration of pest control licence 89
103 Conditions of pest control licence 90
104 Application to vary pest control licence 92
105 Powers of Secretary 92
106 Form of pest control licence 94
107 Issue of replacement pest control licence 94
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108 Records 95
109 Offences by holder of pest control licence or pest control
operator 95
110 Offence by person who is not the holder of a pest control
licence 95
PART 8--MANAGEMENT AND CONTROL OF INFECTIOUS
DISEASES, MICRO-ORGANISMS AND MEDICAL
CONDITIONS 97
Division 1--Principles applying to the management and control of
infectious diseases 97
111 Principles 97
Division 2--Examination and testing orders and public health
orders 98
112 Least restrictive measure to be chosen 98
113 Chief Health Officer may make examination and testing order
relating to infectious disease 98
114 Provisions applying to examination and testing orders 100
115 Registered medical practitioner must provide results 101
116 Person must comply with an examination and testing order 101
117 Chief Health Officer may make public health order 102
118 Provisions applying to public health orders 106
119 Registered medical practitioner must provide information
requested by the Chief Health Officer 108
120 Person must comply with a public health order 108
121 Application for review by Chief Health Officer 108
122 Application for review by VCAT 109
123 Enforcement of orders 109
124 No action lies against registered health practitioner 110
125 Chief Health Officer to facilitate reasonable request for
communication 111
Division 3--Notifiable conditions and micro-organisms 111
126 Governor in Council may declare infectious diseases and
micro-organism to be notifiable 111
127 Notification by registered medical practitioners of notifiable
conditions 113
128 Notification by a pathology service of a notifiable condition 113
129 Health service and pathology service must have processes to
ensure notification 114
130 Notification of a notifiable micro-organism in food 115
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Division 4--HIV and other prescribed diseases 117
131 Information to be given to a person requesting a test for HIV
or any other prescribed disease 117
132 Information to be provided if results of test are positive 118
133 Closure of court or tribunal 118
Division 5--Orders for tests if incident has occurred 119
134 Orders for tests if incident has occurred 119
135 Authorisation for tests 124
136 Chief Health Officer may disclose certain information 124
137 Orders and authorisations for tests by senior medical officer 126
138 Post test or authorisation counselling 127
139 Tests and test results 128
140 No identification to be given 130
141 Directions about orders or authorisations 130
142 No action lies against registered medical practitioner 131
Division 6--Reporting requirements 132
143 Annual report to include information about orders 132
Division 7--Immunisation 132
144 Application of sections 145 and 146 132
145 Immunisation status certificates to be produced before
attendance at primary school 132
146 Obligations of person in charge of primary school 132
147 Immunisation status certificate 133
148 Issuing of immunisation status certificate 134
149 Effect of immunisation status certificate 135
Division 8--Blood and tissue donations 135
150 Application 135
151 Blood donations 135
152 Tissue donations 136
153 Evidentiary 138
154 Liability of donors 138
155 False statements 139
Division 9--Autopsies 139
156 Autopsies 139
157 Notice of and objection to autopsy 140
Division 10--Brothels and escort agencies 141
158 Provision and storage of condoms 141
159 Use of condoms 141
160 Refusal of service 142
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161 Evidence of medical examination 143
162 Information to sex workers and clients 143
163 Clean linen and towels 144
164 Showers and baths 145
165 Inspections and interviews 145
PART 9--AUTHORISED OFFICERS 146
Division 1--General 146
166 Production of identity card 146
167 Power to request information 146
Division 2--Powers of entry 147
168 Power to enter--risk to public health 147
169 Power to enter--monitoring compliance or investigating 148
170 Issue of search warrants 150
Division 3--Procedure for entry 151
171 Announcement before exercising power of entry 151
172 Notice if power of entry exercised without owner or occupier
being present 152
173 Announcement before entry on warrant 152
174 Copy of warrant to be given to occupier 153
Division 4--Powers after entry 153
175 General powers of authorised officers 153
176 Power to direct persons to produce documents, operate
equipment or answer questions 155
177 Authorised officers to give receipts for seized things and
samples taken 156
178 Copies of seized documents 157
179 Retention and return of seized documents or things 157
180 Magistrates' Court may extend 3 month period 158
181 Forfeiture and destruction of seized things 159
182 Secretary or Council may cause forfeited things to be
destroyed or otherwise disposed of 159
Division 5--Offences and complaints 160
183 Offence to hinder or obstruct authorised officer 160
184 Offence to impersonate authorised officer 160
185 Complaints 160
186 Investigation by Ombudsman 161
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PART 10--PROTECTION AND ENFORCEMENT
PROVISIONS 162
Division 1--Powers to investigate, eliminate or reduce public
health risks 162
187 Restriction on entry to residential premises 162
188 Chief Health Officer may direct a person to provide
information 162
189 Powers in the case of a risk to public health 163
190 Public health risk powers 164
191 How may an authorisation be given? 166
192 Assistance 167
193 Compliance with direction or requirement 167
Division 2--Improvement notices and prohibition notices 168
194 Secretary or Council may issue improvement notice or
prohibition notice 168
195 Proceedings for offences not affected by notices 169
196 Injunction for non-compliance with improvement notice or
prohibition notice 170
197 Special provisions relating to nuisances 170
Division 3--Emergency powers 172
198 Declaration of a state of emergency 172
199 Chief Health Officer may authorise exercise of certain powers 174
200 Emergency powers 174
201 How may an authorisation be given? 176
202 Assistance 177
203 Compliance with direction or other requirement 177
204 Compensation 177
PART 11--GENERAL PROVISIONS 180
Division 1--Reviews and appeals 180
205 Review by a Council 180
206 Review by the Secretary 181
207 Review by VCAT 182
208 Appeal against improvement notice or prohibition notice 183
Division 2--Infringements 184
209 Infringements 184
Division 3--Offences 185
210 False or misleading information 185
211 Destroying or damaging records 186
212 Protection against self-incrimination 186
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213 Legal professional privilege not affected 186
214 Offences by corporations 187
215 Persons who are liable for offences 188
Division 4--Proceedings and legal matters 188
216 Responsible agency for the Crown 188
217 Infringement and other notices may be issued to the Crown 189
218 Proceedings against successors to public bodies 190
219 Power to bring proceedings 190
220 Time within which proceedings for offences may be brought 191
221 Service of notices, orders and other documents 191
222 Validity and effect of notices, orders and other documents 193
223 Evidence of signatures 194
224 Certificate of examination and analysis 194
225 Evidentiary certificate signed by the Secretary 195
226 Evidentiary certificate signed by Chief Executive Officer of a
Council 196
227 Protection of person giving certain information 198
Division 5--Costs 198
228 Recovery of costs 198
229 Actions to ensure compliance with direction, requirement or
notice 199
230 Cost recovery in respect of failure to comply with direction,
requirement or notice 200
231 Expenses recoverable by a Council in the abatement of any
nuisance 201
Division 6--Regulations 202
232 General 202
233 Consultative Councils 203
234 General requirements relating to public health and wellbeing 204
235 Nuisances, prescribed accommodation and registered
premises 204
236 Cooling tower systems 207
237 Pest control 208
238 Management and control of infectious disease, micro-
organisms and medical conditions 208
239 Fees 212
PART 12--MISCELLANEOUS 214
Division 1--General 214
240 Supreme Court--limitation of jurisdiction 214
241 Repeal of certain provisions 214
242 Repeal and saving 214
243 Transitional provisions--Health Act 1958 215
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244 Transitional provisions for blood and tissue donations 218
245 Saving and transitional--Cooling tower systems 221
246 Transitional regulations 222
Division 2--Amendments to other Acts 223
247 Births, Deaths and Marriages Registration Act 1996 223
248 Building Act 1993 224
249 Cemeteries and Crematoria Act 2003 225
250 Coroners Act 1985 225
22A Notification of certain deaths to CCOPMM 225
251 Food Act 1984--Amendment of section 4(1) 226
252 Food Act 1984--Section 6 substituted 226
6 Act binds the Crown 226
253 Food Act 1984--Section 20 227
254 Food Act 1984--Section 38 228
255 Food Act 1984--New section 39C inserted 228
39C Contravention of section 34(1) of the Meat Industry
Act 1993 228
256 Food Act 1984--Section 40 229
257 Food Act 1984--Sections 45AA to 45AC inserted 229
45AA Responsible agency for the Crown 229
45AB Proceedings against successors to public bodies 230
45AC Power to bring proceedings 230
258 Food Act 1984--Sections 50AA, 50AB and 50AC inserted 231
50AA Evidentiary certificate signed by the Secretary 231
50AB Evidentiary certificate signed by Chief Executive
Officer of a council 232
50AC Evidence of signatures 234
259 Food Act 1984--Amendment of section 51 234
260 Food Act 1984--Amendment of section 55 234
261 Food Act 1984--Section 59 substituted and sections 59A
to 59C inserted 235
59 False and misleading statements 235
59A Destroying or damaging records 236
59B Validity and effect of notices, orders and other
documents 236
59C Cost recovery in respect of failure to comply with
direction or notice 236
262 Health Act 1958--Section 5 substituted 238
5 Application of Parts III, XII and XIX to areas outside a
municipal district 238
263 Health Act 1958--Section 29B substituted 240
29B Municipal public health plans 240
29C Inclusion of public health matters in Council Plan or
strategic plan 242
29D Transitional 243
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264 Health Act 1958--New section 162FAA inserted 244
162FAA Request to provide information in relation to the
death of children 244
265 Health Act 1958--Other amendments 244
266 Radiation Act 2005 245
137A Service of notices, orders and other documents 245
Division 3--Amendment of Victorian Civil and Administrative
Tribunal Act 1998 247
267 Amendment of Schedule 1 247
PART 16B--PUBLIC HEALTH AND WELLBEING
ACT 2008 247
66B Application of provisions 247
66C Constitution of Tribunal 247
66D Compulsory conferences, mediation and settlement
not to apply 247
66E Costs of an expert 248
66F Restriction on access to information 248
66G Confidentiality of proceeding 248
Division 4--Consequential amendments to other Acts 249
268 Agricultural and Veterinary Chemicals (Control of Use)
Act 1992 249
269 Ambulance Services Act 1986 249
270 Australian Grands Prix Act 1994 249
271 Building Act 1993 249
272 Crimes Act 1958 250
273 Dairy Act 2000 250
274 Dangerous Goods Act 1985 250
275 Drugs, Poisons and Controlled Substances Act 1981 250
276 Health Professions Registration Act 2005 251
277 Health Services Act 1988 251
278 Infertility Treatment Act 1995 251
279 Land Tax Act 2005 251
280 Meat Industry Act 1993 252
281 Mental Health Act 1986 252
282 Prince Henry's Institute of Medical Research Act 1988 252
283 Prostitution Control Act 1994 252
284 Road Safety Act 1986 253
285 Safe Drinking Water Act 2003 253
286 Seafood Safety Act 2003 253
287 Sentencing Act 1991 253
288 Summary Offences Act 1966 254
289 Terrorism (Community Protection) Act 2003 254
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290 Therapeutic Goods (Victoria) Act 1994 254
291 Tobacco Act 1987 254
292 Water Act 1989 255
Division 5--Repeal 255
293 Repeal of Divisions 2, 3 and 4 and this Division 255
__________________
SCHEDULE 256
TABLE 1 256
TABLE 2 261
ENDNOTES 264
561015B.I-6/5/2008 xii BILL LA INTRODUCTION 6/5/2008
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Public Health and Wellbeing Bill 2008
A Bill for an Act to enact a new legislative scheme which promotes
and protects public health and wellbeing in Victoria, to amend the
Health Act 1958, the Food Act 1984 and certain other Acts, to repeal
the Health Act 1958 and consequentially amend certain other Acts
and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The purpose of this Act is to enact a new
legislative scheme which promotes and protects
5 public health and wellbeing in Victoria.
561015B.I-6/5/2008 1 BILL LA INTRODUCTION 6/5/2008
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Part 1--Preliminary
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2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision referred to in subsection (1) does
5 not come into operation before 1 January 2010, it
comes into operation on that day.
3 Definitions
(1) In this Act--
abatement when used in relation to nuisance,
10 includes removal and discontinuance;
analysis includes any bacteriological,
biochemical, biological, chemical, electrical,
microscopical, pathological, physical or
other test for ascertaining the nature,
15 composition or quality of any substance
analysed for the purposes of this Act;
analyst means a person appointed as an analyst
under section 32;
approved auditor means an auditor certified by
20 the Secretary under section 94;
approved form means a form approved by the
Secretary;
authorised officer means a person appointed--
(a) by a Council to be an environmental
25 health officer under section 29; or
(b) by the Secretary to be an authorised
officer under section 30, or
(c) subject to section 31, by a Council
under section 224(1) of the Local
30 Government Act 1989 to be an
authorised officer for the purposes of
this Act;
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Part 1--Preliminary
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beauty therapy means a procedure, not including
any surgical or medical procedure, intended
to maintain, alter or enhance a person's
appearance, including by--
5 (a) facial or body treatment;
(b) application of cosmetics;
(c) manicure or pedicure;
(d) application or mending of artificial
nails;
10 (e) epilation, including by electrolysis or
hot or cold wax--
but does not include hairdressing, tattooing
or skin penetration;
birth means a birth or stillbirth that is required to
15 be registered under the Births, Deaths and
Marriages Registration Act 1996;
brothel has the same meaning as in section 3(1) of
the Prostitution Control Act 1994;
brothel proprietor means the proprietor of the
20 brothel or the person in charge of the brothel;
business includes trade, manufacture, process or
occupation;
CCOPMM means the Consultative Council on
Obstetric and Paediatric Mortality and
25 Morbidity continued under section 44;
Chief Health Officer means the person appointed
as Chief Health Officer under section 20;
child means a person under 18 years of age;
Note
30 See also subsection (2).
561015B.I-6/5/2008 3 BILL LA INTRODUCTION 6/5/2008
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Part 1--Preliminary
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children's services centre means any premises or
place where a children's service within the
meaning of section 3(1) of the Children's
Services Act 1996 operates;
5 colonic irrigation means--
(a) a process involving the use of a fluid to
cleanse the colon of a person; or
(b) a process involving the insertion of a
tube into the colon of a person for the
10 purpose of cleansing the colon;
Consultative Council means--
(a) a Consultative Council established or
appointed under section 33; and
(b) CCOPMM;
15 cooling tower means a device for lowering--
(a) the temperature of recirculated water by
bringing the water into contact with fan
forced, or fan induced, atmospheric air;
or
20 (b) the temperature of water, a refrigerant
or other fluid in a pipe or other
container by bringing recirculated water
and fan forced, or fan induced,
atmospheric air into contact with the
25 pipe or container--
but does not include an evaporative air
cooler or evaporative air conditioner;
cooling tower system means--
(a) a cooling tower, or a number of
30 interconnected cooling towers that use
the same recirculating water; and
(b) any machinery that is used to operate
the tower or towers; and
561015B.I-6/5/2008 4 BILL LA INTRODUCTION 6/5/2008
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Part 1--Preliminary
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(c) any associated tanks, pipes, valves,
pumps or controls;
Council has the same meaning as in section 3(1)
of the Local Government Act 1989;
5 Council Chairperson means the Chairperson of a
Consultative Council;
day procedure centre has the same meaning as in
section 3(1) of the Health Services
Act 1988;
10 denominational hospital has the same meaning as
in section 3(1) of the Health Services Act
1988;
Department means the Department of Human
Services;
15 dependant of a deceased person means--
(a) a person who was the spouse or
domestic partner of the person at the
date of the person's death;
(b) a child of the person;
20 (c) any other person who--
(i) was, at the date of the person's
death, wholly or partially
dependant on the person for
financial support; or
25 (ii) would, at the date of the person's
death, have been wholly or
partially dependant on the person
for financial support, but for the
incapacity due to the injury which
30 led to the death;
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domestic partner of a person means--
(a) a person who is in a registered
relationship with the person; or
Note
5 A registered relationship is defined in subsection (3).
(b) a person to whom the person is not
married but with whom the person is
living as a couple on a genuine
domestic basis (irrespective of gender);
10 donor means--
(a) in the case of blood, a person who gives
blood--
(i) at the premises of the Society or at
a health service; or
15 (ii) under the supervision of the
Society or a health service, at any
other premises; or
(b) in the case of tissue, a person, whether
living or dead, from whom the tissue is
20 taken;
emergency powers means the powers specified in
section 200;
environmental health officer means a person
appointed as an environmental health officer
25 by a Council under section 29;
escort agency has the same meaning as in section
3(1) of the Prostitution Control Act 1994;
escort agency proprietor means the proprietor of
the escort agency or the person in charge of
30 the escort agency;
examination and testing order means an order
made under section 113;
561015B.I-6/5/2008 6 BILL LA INTRODUCTION 6/5/2008
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firm means an unincorporated body of persons
associated together for the purposes of
carrying on business;
hairdressing means any procedure, not being a
5 surgical or medical procedure, intended to
maintain, alter or enhance a person's
appearance in relation to their facial or scalp
hair including by cutting, trimming, styling,
colouring, treating or shaving the hair;
10 health service means--
(a) a day procedure centre;
(b) a denominational hospital;
(c) a multi purpose service;
(d) a private hospital;
15 (e) a public hospital--
and has effect in the context in which the
term is used as if each of the services set out
above referred to the premises on which the
service is conducted or the proprietor of that
20 service as required;
health service provider has the same meaning as
in section 3(1) of the Health Records
Act 2001;
HIV means the human immuno-deficiency virus
25 which is a causative agent of the acquired
immune deficiency syndrome and other
related conditions;
immunisation status certificate means a
document specified in section 147;
30 immunised means immunised as defined by the
regulations in respect of each vaccine-
preventable disease;
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improvement notice means an improvement
notice issued under section 194;
infectious disease includes a human illness or
condition due to a specific infectious agent
5 or its toxic products that arises through
transmission of that agent or its products
from an infected person, animal or reservoir
to a susceptible person, either directly or
indirectly through an intermediate plant or
10 animal host, vector or the inanimate
environment;
information includes--
(a) personal information within the
meaning of the Information Privacy
15 Act 2000; and
(b) health information within the meaning
of the Health Records Act 2001;
infringement notice means an infringement notice
issued in accordance with section 209;
20 isolation means the segregation and separation of
persons who are infected or suspected of
being infected from other persons;
laboratory service has the meaning given by
section 130(9);
25 licence holder means a person who holds a pest
control licence;
midwife means a nurse registered under division 1
of the register kept under the Health
Professions Registration Act 2005;
30 multi purpose service has the same meaning as in
section 3(1) of the Health Services Act
1988;
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municipal district has the same meaning as in
section 3(1) of the Local Government Act
1989;
notifiable condition means--
5 (a) an infectious disease that is declared to
be a notifiable condition by an Order in
Council made under section 126; or
(b) an infectious disease that is prescribed
to be a notifiable condition; or
10 (c) a medical condition that is prescribed to
be a notifiable condition;
notifiable micro-organism means a micro-
organism that is--
(a) declared to be a notifiable micro-
15 organism by an Order in Council made
under section 126; or
(b) prescribed to be a notifiable micro-
organism;
notification details means--
20 (a) in relation to a medical condition,
infectious disease or a micro-organism
that is prescribed by the regulations to
be a notifiable condition or notifiable
micro-organism, the prescribed details
25 to be included with a notification of
that notifiable condition or micro-
organism; and
(b) in relation to an infectious disease or a
micro-organism that is declared by
30 an Order in Council made under
section 126 to be a notifiable condition
or notifiable micro-organism, the
details required by the Order in Council
to be included with a notification of
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that infectious disease or micro-
organism;
occupier, in relation to premises, means a person
who appears to be of or over 16 years of age
5 and who is, or appears to be, in control of the
premises;
Order in Council means an Order made by the
Governor in Council and published in the
Government Gazette;
10 owner, in relation to a cooling tower system,
means--
(a) the person who owns, manages or
controls the cooling tower system; or
(b) the person in charge of the cooling
15 tower system;
owner, in relation to land--
(a) which has been alienated in fee by the
Crown and is under the operation of the
Transfer of Land Act 1958 (other than
20 land in an identified folio under that
Act), means the person who is
registered or entitled to be registered as
proprietor, or the persons who are
registered or entitled to be registered as
25 proprietors, of an estate in fee simple in
the land;
(b) which has been alienated in fee by the
Crown and is land in an identified folio
under the Transfer of Land Act 1958
30 or land not under the operation of the
Transfer of Land Act 1958, means the
person who is the owner, or the persons
who are the owners, of the fee or equity
of redemption;
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(c) which is Crown land reserved under the
Crown Land (Reserves) Act 1978 and
managed or controlled by a committee
of management, means the Minister
5 administering that Act;
(d) which is any other Crown land, means
the Minister or public authority that
manages or controls the land;
parent includes--
10 (a) a step-parent;
(b) an adoptive parent;
(c) a foster parent;
(d) a guardian;
(e) a person who has custody or daily care
15 and control;
(f) a person who has all the duties, powers
and responsibilities and authority
(whether conferred by a court or
otherwise) which by law parents have
20 in relation to children;
pathology service means a service in which
human tissue, human fluids or human body
products are subjected to analysis for the
purposes of the prevention, diagnosis or
25 treatment of disease in human beings;
person includes a body or association (corporate
or unincorporate) and a partnership and, in
Division 2 of Part 7, also includes a firm;
pest includes any animal or other biological entity
30 (not being a human being or a plant) which
injuriously affects, or is likely to injuriously
affect, a person, a person's property or a
person's use or enjoyment of a place;
561015B.I-6/5/2008 11 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 1--Preliminary
s. 3
pest control licence means a licence issued or
renewed by the Secretary under section 101;
pest control operator means a person who carries
on or holds themselves out in any way as
5 carrying on the business of controlling,
destroying or repelling pests;
pesticide means--
(a) any agricultural chemical product
within the meaning of the Agricultural
10 and Veterinary Chemicals (Control
of Use) Act 1992; and
(b) any substance prescribed as a pesticide
for the purposes of this definition;
premises includes--
15 (a) land (whether or not vacant);
(b) the whole or any part of a building,
tent, stall or other structure (whether of
a permanent or temporary nature);
(c) a pontoon;
20 (d) a vehicle;
(e) a caravan or camper-trailer;
prescribed means prescribed by the regulations;
prescribed accommodation means any of the
following which is prescribed, or is of a class
25 which is prescribed, to be prescribed
accommodation--
(a) any area of land which a person or
persons are frequently, intermittently or
seasonally permitted to use for camping
30 on payment of consideration and any
facilities provided on the land for the
use of that person or those persons;
561015B.I-6/5/2008 12 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 1--Preliminary
s. 3
(b) any premises used as a place of abode,
whether temporary or permanent, fixed
or mobile, where a person or persons
can be accommodated on payment of
5 consideration;
(c) any accommodation provided to an
employee in accordance with a term of
an award governing the employment of
the employee, or a term of the
10 employee's contract of service, for use
by the employee during that
employment or service;
prescribed Consultative Council means--
(a) a Consultative Council which is
15 prescribed to be a prescribed
Consultative Council for the purposes
of Division 2 of Part 4; and
(b) CCOPMM;
prescribed disease means a disease prescribed for
20 the purposes of Division 8 of Part 8;
prescribed senior officer means a person who is
of a prescribed class of persons, being a
person who is employed under Part 3 of the
Public Administration Act 2004 other than
25 as an executive within the meaning of
section 4(1) of that Act;
primary school means a registered school wholly
or partly attended by children between 5 and
11 years of age;
30 private hospital has the same meaning as in
section 3(1) of the Health Services Act
1988;
prohibition notice means a prohibition notice
issued under section 194;
561015B.I-6/5/2008 13 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 1--Preliminary
s. 3
proprietor, in respect of--
(a) prescribed accommodation, means the
person providing the prescribed
accommodation;
5 (b) a day procedure centre or a private
hospital, means--
(i) if the day procedure centre or
private hospital is run on a not-
for-profit basis, the authority or
10 body of persons conducting the
day procedure centre or private
hospital;
(ii) in any other case, the owner
(whether a natural person or a
15 body corporate) of the day
procedure centre or private
hospital;
(c) a denominational hospital, multi
purpose service or public hospital,
20 means the body corporate that conducts
the denominational hospital, multi
purpose service or public hospital;
public health order means an order made under
section 117;
25 public health risk powers means the powers
specified in section 190;
public hospital means--
(a) a public health service within the
meaning of the Health Services
30 Act 1988;
(b) a public hospital within the meaning of
the Health Services Act 1988;
561015B.I-6/5/2008 14 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 1--Preliminary
s. 3
public inquiry means a public inquiry conducted
under section 50;
registered health practitioner has the same
meaning as in section 3(1) of the Health
5 Professions Registration Act 2005;
registered medical practitioner means a medical
practitioner registered under the Health
Professions Registration Act 2005;
registered nurse means a nurse registered under
10 the Health Professions Registration Act
2005;
registered pharmacist means a pharmacist
registered under the Health Professions
Registration Act 2005;
15 registered premises means premises registered
under section 69;
registration holder means the holder of a
registration issued, transferred or renewed
under Division 4 of Part 6;
20 regulations means regulations made under this
Act;
risk management plan means a risk management
plan prepared in accordance with section 91;
risk management plan audit means an audit,
25 carried out in accordance with section 93, of
a risk management plan that was prepared
under section 91;
risk management requirements includes
requirements made under this Act or the
30 regulations that relate to--
(a) the preparation, content, review and
audit of a risk management plan;
561015B.I-6/5/2008 15 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 1--Preliminary
s. 3
(b) the construction, installation, operation,
maintenance, repair, service and testing
of a cooling tower system;
(c) control measures used in respect of a
5 cooling tower system;
sample includes part of a sample;
Secretary means--
(a) in relation to any act to which
section 16(4) applies, the body
10 corporate established under section 16;
and
(b) in any other case, the Department
Head;
serious risk to public health means a material risk
15 that substantial injury or prejudice to the
health of human beings has or may occur
having regard to--
(a) the number of persons likely to be
affected;
20 (b) the location, immediacy and
seriousness of the threat to the health of
persons;
(c) the nature, scale and effects of the
harm, illness or injury that may
25 develop;
(d) the availability and effectiveness of any
precaution, safeguard, treatment or
other measure to eliminate or reduce
the risk to the health of human beings;
30 sex worker means a person who personally
provides sexual services to or for another
person (whether or not of a different sex) in
return for payment or reward;
561015B.I-6/5/2008 16 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 1--Preliminary
s. 3
sexual services has the same meaning as in
section 3(1) of the Prostitution Control
Act 1994;
skin penetration means any procedure performed
5 on a living human being, not being a surgical
or medical procedure, involving piercing,
cutting, scarring, branding, scraping,
puncturing or tearing of their skin or mucous
membrane using an instrument but does not
10 include tattooing;
Society means the Society incorporated by Royal
Charter under the name of Australian Red
Cross Society;
specified infectious disease means--
15 (a) HIV;
(b) any form of hepatitis which may be
transmitted by blood or body fluid;
(c) an infectious disease prescribed to be a
specified infectious disease;
20 spouse of a person means a person to whom the
person is married;
state of emergency means a state of emergency
declared under section 198;
stillbirth means the birth of a stillborn child;
25 substance includes any article or compound;
surgical or medical procedure means a surgical
or medical procedure performed--
(a) by a registered medical practitioner or a
registered nurse; or
30 (b) by a person under the supervision of a
registered medical practitioner or a
registered nurse;
561015B.I-6/5/2008 17 BILL LA INTRODUCTION 6/5/2008
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Part 1--Preliminary
s. 3
tattooing means any process involving penetrating
a person's skin for the purpose of inserting
colour pigments--
(a) to make a permanent mark, pattern or
5 design on the skin; or
(b) to make a semi-permanent mark,
pattern or design on the skin including
the process of applying semi-permanent
make-up or cosmetic tattooing;
10 test, in Part 8, means diagnostic procedure;
tissue has the same meaning as in section 3(1) of
the Human Tissue Act 1982;
vaccine-preventable disease means a vaccine-
preventable disease prescribed for the
15 purposes of Division 7 of Part 8;
vehicle means any means of transport, whether
self-propelled or not, and whether used on
land or sea or in the air.
(2) In this Act, a reference to a child of a deceased
20 person is a reference to a child of the deceased
person or of the deceased person's surviving
spouse or domestic partner.
(3) For the purposes of the definition of domestic
partner in subsection (1)--
25 (a) registered relationship has the same meaning
as in the Relationships Act 2008; and
(b) in determining whether persons who are not
in a registered relationship are domestic
partners of each other, all the circumstances
30 of their relationship are to be taken into
account, including any one or more of the
matters referred to in section 35(2) of the
Relationships Act 2008 as may be relevant
in a particular case.
__________________
561015B.I-6/5/2008 18 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 2--Objective, Principles and Application
s. 4
PART 2--OBJECTIVE, PRINCIPLES AND APPLICATION
4 Objective
(1) The Parliament recognises that--
(a) the State has a significant role in promoting
5 and protecting the public health and
wellbeing of persons in Victoria;
(b) public health and wellbeing includes the
absence of disease, illness, injury, disability
or premature death and the collective state of
10 public health and wellbeing;
(c) public health interventions are one of the
ways in which the public health and
wellbeing can be improved and inequalities
reduced;
15 (d) where appropriate, the State has a role in
assisting in responses to public health
concerns of national and international
significance.
(2) In the context of subsection (1), the objective of
20 this Act is to achieve the highest attainable
standard of public health and wellbeing by--
(a) protecting public health and preventing
disease, illness, injury, disability or
premature death;
25 (b) promoting conditions in which persons can
be healthy;
(c) reducing inequalities in the state of public
health and wellbeing.
(3) It is the intention of Parliament that in the
30 administration of this Act and in seeking to
achieve the objective of this Act, regard should be
given to the guiding principles set out in
sections 5 to 11.
561015B.I-6/5/2008 19 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 2--Objective, Principles and Application
s. 5
5 Principle of evidence based decision-making
Decisions as to--
(a) the most effective use of resources to
promote and protect public health and
5 wellbeing; and
(b) the most effective and efficient public health
and wellbeing interventions--
should be based on evidence available in the
circumstances that is relevant and reliable.
10 6 Precautionary principle
If a public health risk poses a serious threat, lack
of full scientific certainty should not be used as a
reason for postponing measures to prevent or
control the public health risk.
15 7 Principle of primacy of prevention
(1) The prevention of disease, illness, injury,
disability or premature death is preferable to
remedial measures.
(2) For that purpose, capacity building and other
20 health-promotion activities are central to reducing
differences in health status and promoting the
health and wellbeing of the people of Victoria.
8 Principle of accountability
(1) Persons who are engaged in the administration of
25 this Act should as far as is practicable ensure that
decisions are transparent, systematic and
appropriate.
(2) Members of the public should therefore be
given--
30 (a) access to reliable information in appropriate
forms to facilitate a good understanding of
public health issues; and
561015B.I-6/5/2008 20 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 2--Objective, Principles and Application
s. 9
(b) opportunities to participate in policy and
program development.
9 Principle of proportionality
Decisions made and actions taken in the
5 administration of this Act--
(a) should be proportionate to the public health
risk sought to be prevented, minimised or
controlled; and
(b) should not be made or taken in an arbitrary
10 manner.
10 Principle of collaboration
Public health and wellbeing, in Victoria and at a
national and international level, can be enhanced
through collaboration between all levels of
15 Government and industry, business, communities
and individuals.
11 Principles applying to Part 8
Section 111 specifies the principles that are to
apply for the purposes of the application,
20 operation and interpretation of Part 8.
12 Application of Part 6 to areas outside a municipal
district
(1) Part 6 applies to an area outside a municipal
district in accordance with this section.
25 (2) The Governor in Council on the recommendation
of the Minister may by Order in Council
specify--
(a) an area outside a municipal district for the
purposes of this section;
30 (b) which Division or Divisions of Part 6 are to
apply in that area;
561015B.I-6/5/2008 21 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 2--Objective, Principles and Application
s. 12
(c) unless paragraph (d) applies, the Council
which is to have the specified functions,
duties and powers under this Act and the
regulations for the purposes of the
5 application of the specified Division or
Divisions of Part 6 in respect of that area;
(d) that the Secretary is to have the specified
functions, duties and powers under this Act
and the regulations for the purposes of the
10 application of the specified Division or
Divisions of Part 6 in respect of that area.
(3) For the purposes of subsections (2)(c) and (2)(d),
functions, duties and powers may be specified--
(a) specifically; or
15 (b) by reference to a provision of this Act in
which the functions, duties and powers are
specified.
(4) If the Minister proposes to recommend to the
Governor in Council that an Order in Council
20 under this section specifies a Council for the
purposes of subsection (2)(c), the Minister must
consult with the Minister administering the Local
Government Act 1989 before making the
recommendation.
25 (5) If an Order in Council under this section specifies
a Council for the purposes of subsection (2)(c),
then, for the purposes of the application of the
specified Division or Divisions of Part 6 in the
specified area to which the Order relates, that area
30 is taken to be part of the municipal district of the
Council specified in the Order.
561015B.I-6/5/2008 22 BILL LA INTRODUCTION 6/5/2008
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Part 2--Objective, Principles and Application
s. 13
(6) If an Order in Council is made in relation to the
Secretary under subsection (2)(d), then, for the
purposes of the application of the specified
Division or Divisions of Part 6 in the specified
5 area to which the Order relates, a reference in a
provision of that Division or those Divisions to a
Council is taken to be a reference to the Secretary.
(7) Any provisions of this Act that are necessary to
give effect to the application of the specified
10 Division or Divisions of Part 6 in the specified
area to which the Order relates, extend and apply
by virtue of this section with any modifications as
are necessary.
13 Act binds the Crown
15 (1) This Act binds the Crown--
(a) in right of the State of Victoria; and
(b) to the extent that the legislative power of the
Parliament permits, in all its other capacities.
(2) To avoid doubt, the Crown is a body corporate for
20 the purposes of this Act and the regulations.
14 Extra-territorial operation of Divisions 2 and 8 of
Part 8
(1) It is the intention of the Parliament that the
operation of Divisions 2 and 8 of Part 8 should, so
25 far as possible, include operation in relation to the
following--
(a) land situated outside Victoria, whether in or
outside Australia;
(b) things situated outside Victoria, whether in
30 or outside Australia;
(c) acts, omissions and transactions done,
entered into or occurring outside Victoria,
whether in or outside Australia;
561015B.I-6/5/2008 23 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 2--Objective, Principles and Application
(d) things, acts, omissions and transactions
(wherever situated, done, entered into or
occurring) that would, apart from this Act, be
governed or otherwise affected by the law of
5 the Commonwealth, another State, a
Territory or a foreign country.
(2) Nothing in this section limits the operation of any
other provision in this Act.
__________________
561015B.I-6/5/2008 24 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 3--Administration
s. 15
PART 3--ADMINISTRATION
Division 1--The Minister and the Secretary
15 Delegation by Minister
(1) The Minister by instrument may delegate to any
5 person or class of persons employed under Part 3
of the Public Administration Act 2004 any
power, duty or function of the Minister under this
or any other Act or under the regulations under
this or any other Act, other than this power of
10 delegation.
(2) A delegation under subsection (1) may be made--
(a) in relation to a person or class of persons
specified in the instrument of delegation; or
(b) in relation to the holder, or the holder from
15 time to time, of an office specified, or of
each office in a class of offices specified, in
the instrument of delegation.
16 Secretary
(1) The person who is for the time being the
20 Department Head (within the meaning of the
Public Administration Act 2004) of the
Department and the successors in office of that
person are a body corporate under the name
"Secretary to the Department of Human Services".
25 (2) The body corporate under subsection (1) by the
name given to it under that subsection--
(a) has perpetual succession and a corporate
seal; and
561015B.I-6/5/2008 25 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 3--Administration
s. 17
(b) is capable in law--
(i) of suing and being sued; and
(ii) of acquiring, holding and disposing of
real and personal property; and
5 (iii) of doing and suffering all such acts and
things as bodies corporate may by law
do and suffer and that are necessary for
or incidental to the purposes of this or
any other Act.
10 (3) The body corporate under subsection (1) is the
same body corporate as the body corporate
established under section 6 of the Health Act
1958 as in force immediately before the
commencement of this section.
15 (4) Any act required to be done by the Secretary
under this Act or any other Act that requires
dealing with an interest in land or that is intended
to bind any person holding the office of
Department Head (within the meaning of the
20 Public Administration Act 2004) of the
Department and that person's successors in office
must be done by the body corporate referred to in
subsection (1).
(5) A reference in any Act other than this Act or in
25 any document to the Secretary to the Department
of Human Services (however expressed) must be
taken to be a reference to the Secretary within the
meaning of section 3(1).
17 Role and functions of the Secretary
30 (1) For the purposes of this Act, the role of the
Secretary is to--
(a) initiate, support and manage public health
planning processes at the state level;
561015B.I-6/5/2008 26 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 3--Administration
s. 17
(b) develop and implement policies and
programs to achieve the objective of this
Act;
(c) perform the functions and exercise the
5 powers conferred on the Secretary under this
Act or any other Act, or the regulations made
under this or any other Act;
(d) administer this Act in accordance with the
objectives and guiding principles specified in
10 this Act.
(2) Without limiting the generality of subsection (1),
the Secretary has the following functions--
(a) to promote awareness and understanding of
public health and wellbeing issues within the
15 community;
(b) to develop public health and wellbeing
policies;
(c) to assist persons who have an impact on
public health to enhance opportunities for
20 protecting public health;
(d) to support, equip and empower communities
to address local public health issues and
needs;
(e) to establish and maintain a comprehensive
25 information system which includes
information in respect of--
(i) the health status of persons and classes
of persons in Victoria, including
information about the extent and effects
30 of disease, illness, injury, disability or
premature death;
(ii) the determinants of individual health
and public health and wellbeing;
561015B.I-6/5/2008 27 BILL LA INTRODUCTION 6/5/2008
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Part 3--Administration
s. 18
(iii) the effectiveness of health interventions
to improve public health in Victoria;
(f) to make recommendations and reports to the
Minister with respect to matters relating to
5 public health and wellbeing and to advise the
Minister on the operation of this Act and the
regulations.
18 Secretary subject to direction of Minister
In the exercise of the powers, discretions,
10 functions and authorities and in the exercise of the
duties conferred or imposed upon the Secretary by
or under this or any other Act, the Secretary is
subject to the direction and control of the
Minister.
15 19 Delegation by Secretary
(1) The Secretary by instrument may delegate to--
(a) any employee or class of employees
employed under Part 3 of the Public
Administration Act 2004; or
20 (b) any public authority or the chief executive
officer (however described) of any public
authority; or
(c) any Council or officer of a Council--
any power, duty or function of the Secretary under
25 this or any other Act or under the regulations
under this or any other Act, other than this power
of delegation or the power conferred by
section 50.
(2) Despite subsection (1), any power, duty or
30 function delegated to a person under paragraph (b)
of that subsection may be sub-delegated by that
person to an officer or employee of that person.
561015B.I-6/5/2008 28 BILL LA INTRODUCTION 6/5/2008
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Part 3--Administration
s. 20
(3) A delegation under subsection (1) may be made--
(a) in relation to a person or class of persons
specified in the instrument of delegation; or
(b) in relation to the holder, or the holder from
5 time to time, of an office specified, or of
each office in a class of offices specified, in
the instrument of delegation.
(4) Sections 42 and 42A of the Interpretation of
Legislation Act 1984 apply to a sub-delegation
10 authorised by subsection (2) in the same way as
they apply to a delegation.
(5) The Secretary by instrument may delegate the
power conferred on the Secretary by section 50 to
a person who is--
15 (a) an executive within the meaning of section
4(1) of the Public Administration Act
2004; or
(b) a prescribed senior officer.
Division 2--The Chief Health Officer
20 20 Chief Health Officer
(1) Subject to the Public Administration Act 2004,
there is to be appointed by the Secretary as the
Chief Health Officer a person who is a registered
medical practitioner.
25 (2) Subject to the general direction and control of the
Secretary, the Chief Health Officer has the
powers, duties, functions and immunities that are
conferred or imposed on the Chief Health Officer
by or under this or any other Act.
30 (3) For the purposes of this Act, the Chief Health
Officer has and may exercise all the powers
conferred on an authorised officer by this Act.
561015B.I-6/5/2008 29 BILL LA INTRODUCTION 6/5/2008
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Part 3--Administration
s. 21
(4) The Secretary must issue an identity card to the
Chief Health Officer.
(5) The identity card issued to the Chief Health
Officer under this section must--
5 (a) contain a photograph of the Chief Health
Officer; and
(b) contain the signature of the Chief Health
Officer; and
(c) be signed by the Secretary.
10 (6) Part 9 applies to the Chief Health Officer when
exercising the powers of an authorised officer
under this Act.
21 Functions and powers of the Chief Health Officer
The functions and powers of the Chief Health
15 Officer are--
(a) to develop and implement strategies to
promote and protect public health and
wellbeing;
(b) to provide advice to the Minister or the
20 Secretary on matters relating to public health
and wellbeing;
(c) to publish on a biennial basis and make
available in an accessible manner to
members of the public a comprehensive
25 report on public health and wellbeing in
Victoria;
(d) to perform any other functions or exercise
any powers specified under this Act or any
other Act or under any regulations made
30 under this or any other Act.
561015B.I-6/5/2008 30 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 3--Administration
s. 22
22 Power of delegation
(1) The Chief Health Officer by instrument may
delegate to a registered medical practitioner--
(a) who is an executive within the meaning of
5 section 4(1) of the Public Administration
Act 2004; or
(b) who is a prescribed senior officer--
any power, duty or function of the Chief Health
Officer other than this power of delegation.
10 (2) A delegation under subsection (1) may be made--
(a) in relation to a person or class of persons
specified in the instrument of delegation; or
(b) in relation to the holder, or the holder from
time to time, of an office specified, or of
15 each office in a class of offices specified, in
the instrument of delegation.
23 Provision of staff and contractors
(1) There may be employed under Part 3 of the
Public Administration Act 2004 any employees
20 that are necessary to assist the Chief Health
Officer in the performance of his or her powers,
duties and functions under this Act or any other
Act or under any regulations made under this or
any other Act.
25 (2) The Chief Health Officer may enter into
agreements or arrangements with a person for the
purpose of obtaining appropriate expertise to
assist the Chief Health Officer in the performance
of powers, duties and functions under this Act or
30 any other Act or under any regulations made
under this or any other Act.
561015B.I-6/5/2008 31 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 3--Administration
s. 24
Division 3--Councils
24 Function of Councils
The function of a Council under this Act is to seek
to protect, improve and promote public health and
5 wellbeing within the municipal district by--
(a) creating an environment which supports the
health of members of the local community
and strengthens the capacity of the
community and individuals to achieve better
10 health;
(b) initiating, supporting and managing public
health planning processes at the local
government level;
(c) developing and implementing public health
15 policies and programs within the municipal
district;
(d) developing and enforcing up-to-date public
health standards and intervening if the health
of people within the municipal district is
20 affected;
(e) facilitating and supporting local agencies
whose work has an impact on public health
and wellbeing to improve public health and
wellbeing in the local community;
25 (f) co-ordinating and providing immunisation
services to children living or being educated
within the municipal district;
(g) ensuring that the municipal district is
maintained in a clean and sanitary condition.
561015B.I-6/5/2008 32 BILL LA INTRODUCTION 6/5/2008
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Part 3--Administration
s. 25
25 Secretary may require report from Council
(1) The Secretary by notice in writing may require a
Council to report to the Secretary on a matter
relating to--
5 (a) public health and wellbeing specified in the
notice;
(b) the performance of specified functions or
duties, or the exercise of specified powers,
by a Council under an Act administered by
10 the Minister.
(2) A Council must provide the report in the form and
within the period specified by the Secretary in the
notice.
26 Municipal public health and wellbeing plans
15 (1) Unless section 27 applies, a Council must, in
consultation with the Secretary, prepare a
municipal public health and wellbeing plan within
the period of 12 months after each general
election of the Council.
20 (2) A municipal public health and wellbeing plan
must--
(a) include an examination of data about health
status and health determinants in the
municipal district;
25 (b) identify goals and strategies based on
available evidence for creating a local
community in which people can achieve
maximum health and wellbeing;
(c) provide for the involvement of people in the
30 local community in the development,
implementation and evaluation of the public
health and wellbeing plan;
561015B.I-6/5/2008 33 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 3--Administration
s. 26
(d) specify how the Council will work in
partnership with the Department and other
agencies undertaking public health
initiatives, projects and programs to
5 accomplish the goals and strategies identified
in the public health and wellbeing plan;
(e) be consistent with--
(i) the Council Plan prepared under section
125 of the Local Government Act
10 1989; and
(ii) the municipal strategic statement
prepared under section 12A of the
Planning and Environment Act 1987.
(3) In preparing a municipal public health and
15 wellbeing plan, a Council must have regard to the
State Public Health and Wellbeing Plan prepared
under section 49.
(4) A Council must review its municipal public health
and wellbeing plan annually and, if appropriate,
20 amend the municipal public health and wellbeing
plan.
(5) Despite subsection (2)(c), a Council is not
required to provide for the involvement of people
in the local community when reviewing or
25 amending a municipal public health and wellbeing
plan under subsection (4).
(6) A Council must give a copy of the current
municipal public health and wellbeing plan to the
Secretary.
30 (7) A copy of the current municipal public health and
wellbeing plan must be available for inspection by
members of the public at the places at which the
current Council Plan must be available under
section 125(11) of the Local Government Act
35 1989.
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Part 3--Administration
s. 27
27 Inclusion of public health and wellbeing matters in
Council Plan or Strategic Plan
(1) A Council is not required to comply with
section 26 if--
5 (a) the Council complies with this section; and
(b) the Secretary grants the Council an
exemption from complying with section 26.
(2) If a Council intends to comply with this section,
the Council must--
10 (a) address the matters specified in section 26(2)
in the Council Plan to be prepared under
section 125 of the Local Government Act
1989 or in a Strategic Plan prepared and
approved by the Council;
15 (b) if the matters specified in section 26(2) are
included in the Council Plan, review the
Council Plan in accordance with section
125(7) of the Local Government Act 1989;
(c) if the matters specified in section 26(2) are
20 included in a Strategic Plan, review the
Strategic Plan annually.
(3) A Council may apply to the Secretary for an
exemption from complying with section 26 by
submitting a draft of the Council Plan or Strategic
25 Plan which addresses the matters specified in
section 26(2).
(4) If the Secretary is satisfied that the draft Council
Plan or Strategic Plan adequately addresses the
matters specified in section 26(2), the Secretary
30 must grant the Council an exemption from
complying with section 26.
561015B.I-6/5/2008 35 BILL LA INTRODUCTION 6/5/2008
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Part 3--Administration
s. 28
(5) If the Secretary is not satisfied that the draft
Council Plan or Strategic Plan adequately
addresses the matters specified in section 26(2),
the Secretary must--
5 (a) refuse to grant an exemption from complying
with section 26(2); and
(b) advise the Council in writing--
(i) of the reasons for refusing to do so; and
(ii) as to the changes that should be made
10 to the draft Council Plan or Strategic
Plan.
(6) If a Council has been granted an exemption from
complying with section 26, the Council must give
a copy of the current Council Plan or Strategic
15 Plan to the Secretary if a change is made to the
Council Plan or Strategic Plan which relates to the
matters specified in section 26(2).
28 Special powers of Secretary in a state of emergency
If there is a state of emergency, the Secretary may
20 do all or any of the following--
(a) order a Council to perform any functions or
duties, or exercise any powers, that the
Secretary directs;
(b) perform all or any of the functions or duties,
25 or exercise all or any of the powers, of a
Council;
(c) order any officer of a Council to perform a
particular function or duty or to exercise a
particular power;
30 (d) order any authorised officer of a Council to
perform any functions or duties, or exercise
any powers, in another municipal district that
the Secretary directs.
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Public Health and Wellbeing Bill 2008
Part 3--Administration
s. 29
Division 4--Officers
29 Appointment of environmental health officers
(1) A Council must appoint one or more
environmental health officers.
5 (2) A Council may only appoint as an environmental
health officer a person who has the qualifications,
or qualifications and experience--
(a) that are declared by the Secretary as
necessary for appointment as an
10 environmental health officer; or
(b) that the Secretary or a person approved by
the Secretary for the purposes of this section
is satisfied are substantially equivalent to the
qualifications or experience, or qualifications
15 and experience, declared for the purpose of
paragraph (a).
(3) The Secretary may declare the qualifications, or
qualifications and experience, which are necessary
for appointment as an environmental health
20 officer by a notice published in the Government
Gazette.
(4) Despite anything in this or any other Act, 2 or
more Councils may appoint the same person to be
their environmental health officer.
25 (5) A person appointed as an environmental health
officer is by virtue of that appointment an
authorised officer for the purposes of this Act.
(6) Sections 31(4) and 31(5) of this Act and sections
224(2) and 224(3) of the Local Government
30 Act 1989 apply in respect of a person appointed as
an environmental health officer as if the person
was an authorised officer.
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Part 3--Administration
s. 30
30 Secretary may appoint authorised officers
(1) The Secretary by instrument may appoint a person
employed under Part 3 of the Public
Administration Act 2004 to be an authorised
5 officer for the purposes of this Act.
(2) The Secretary must not appoint a person to be an
authorised officer under this section unless the
Secretary is satisfied that the person is suitably
qualified or trained to be an authorised officer for
10 the purposes of this Act.
(3) An appointment of a person to be an authorised
officer may--
(a) specify the functions, duties or powers under
this Act or the regulations to which it relates;
15 and
(b) be made subject to any conditions that the
Secretary considers to be appropriate.
(4) The Secretary must issue an identity card to each
authorised officer appointed by the Secretary.
20 (5) An identity card issued to an authorised officer
under this section must--
(a) contain a photograph of the authorised
officer; and
(b) contain the signature of the authorised
25 officer; and
(c) be signed by the Secretary.
(6) The Secretary may give a direction to an
authorised officer appointed by the Secretary in
relation to the performance of the authorised
30 officer's functions or duties or the exercise of the
authorised officer's powers under this Act or the
regulations.
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Part 3--Administration
s. 31
(7) A direction given under subsection (6) may--
(a) be of a general nature; or
(b) specify that the direction relates to a specific
matter or specified class of matter.
5 31 Councils may appoint authorised officers
(1) Subject to this section, a Council may, under
section 224(1) of the Local Government Act
1989, appoint a person to be an authorised officer
for the purposes of this Act.
10 (2) A Council must not appoint a person to be an
authorised officer for the purposes of this Act
unless the Council is satisfied that the person is
suitably qualified or trained to be an authorised
officer for the purposes of this Act.
15 (3) An appointment of a person to be an authorised
officer may--
(a) specify the functions, duties or powers under
this Act or the regulations to which it relates;
and
20 (b) be made subject to any conditions that the
Council considers to be appropriate.
(4) A Council may give a direction to an authorised
officer appointed by the Council in relation to the
performance of the authorised officer's functions
25 or duties or the exercise of the authorised officer's
powers under this Act or the regulations.
(5) A direction given under subsection (4) may--
(a) be of a general nature; or
(b) specify that the direction relates to a specific
30 matter or specified class of matter.
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Part 3--Administration
s. 32
32 Analysts
(1) The Secretary by instrument may appoint a natural
person to be an analyst.
(2) The Secretary may only appoint a person to be an
5 analyst if the Secretary considers that the person
has the necessary expertise or experience to carry
out analyses for the purposes of this Act and the
regulations.
(3) A person appointed to be an analyst need not be
10 an authorised officer.
(4) The function of an analyst is to carry out an
analysis--
(a) to determine whether this Act and the
regulations are being complied with; or
15 (b) to assist a person performing a function or
exercising a power under this Act or the
regulations.
(5) If an analyst carries out an analysis, the analyst
must prepare and sign a certificate of analysis
20 which includes--
(a) the results of the analysis; and
(b) information about the apparatus and
methodology used to conduct the analysis.
__________________
561015B.I-6/5/2008 40 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 4--Consultative Councils
s. 33
PART 4--CONSULTATIVE COUNCILS
Division 1--General provisions
33 Consultative Councils
(1) For the purposes of this Act and any other Act
5 conferring powers or imposing functions on the
Minister or the Secretary, the Minister by Order
may--
(a) establish a Consultative Council as the
Minister considers appropriate in respect of
10 the matters and functions that the Minister
determines and specifies in the Order;
(b) appoint a Board, Commission or other body
established by or under an Act or a
Committee of the Board, Commission or
15 other body to be a Consultative Council.
(2) A Consultative Council established by Order
under subsection (1)(a) is to consist of the number
of members specified in the Order.
(3) The Minister by Order may appoint the members
20 of a Consultative Council established under
subsection (1)(a).
(4) Of the members appointed by Order under
subsection (3)--
(a) one must be appointed as the Chairperson;
25 (b) one may be appointed as the Deputy
Chairperson;
(c) the majority must be persons with special
knowledge in the matters specified for that
Consultative Council in the Order
30 establishing the Consultative Council.
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Part 4--Consultative Councils
s. 34
(5) A member appointed under subsection (3)--
(a) holds office for the period, not exceeding
3 years, specified in the Order but is eligible
for re-appointment;
5 (b) may resign from the office of member by
writing signed and delivered to the Minister;
(c) may be removed from office by the Minister;
(d) is not in respect of the office of member
subject to the Public Administration Act
10 2004 (other than Part 5 of that Act).
(6) An Order under this section must be published in
the Government Gazette.
34 Assistance to Consultative Council
(1) Subject to the approval of the Minister, a
15 Consultative Council may co-opt any person with
special knowledge or skills to assist the
Consultative Council in a particular matter.
(2) A person who has been co-opted to assist a
Consultative Council is to be considered to be a
20 member of that Consultative Council until the
period of co-option ends.
35 Proceedings of a Consultative Council
(1) The Council Chairperson must preside at meetings
of the Consultative Council at which the Council
25 Chairperson is present.
(2) If the Council Chairperson is not present at a
meeting, the Deputy Chairperson is to be the
chairperson of the meeting.
(3) If the Council Chairperson is not present at a
30 meeting and the Deputy Chairperson is not present
at the meeting or there is no Deputy Chairperson,
the members present must elect one of their
number to be chairperson of the meeting.
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Part 4--Consultative Councils
s. 36
(4) The Deputy Chairperson may perform the
functions of the Council Chairperson under
section 38 or 39 if authorised to do so in writing
by the Council Chairperson.
5 (5) Subject to any regulations made for the purposes
of this section, a Consultative Council may
regulate its own proceedings.
36 Sub-committees
(1) Subject to the approval of the Minister, a
10 Consultative Council may appoint a sub-
committee for the purposes of carrying out any of
its functions.
(2) A sub-committee of a Consultative Council is to
consist of--
15 (a) the members of the Consultative Council
determined by the Consultative Council; and
(b) other persons as the Consultative Council
determines.
(3) A sub-committee appointed under this section
20 must report to the Consultative Council.
37 Operation of Consultative Councils
(1) The Council Chairperson may provide
information obtained in the course of the
Consultative Council performing its functions to
25 any other Consultative Council if the Council
Chairperson considers that the information is
relevant to the functions of the other Consultative
Council.
(2) The Minister or the Secretary may give a direction
30 in writing to--
(a) a Consultative Council to consider and report
on a matter relevant to the functions of the
Consultative Council specified in the
direction;
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Part 4--Consultative Councils
s. 38
(b) 2 or more Consultative Councils to jointly
consider and report on a matter relevant to
their functions specified in the direction.
(3) Two or more Consultative Councils may resolve
5 to consider jointly and report on a matter relevant
to their functions specified in the resolution.
Division 2--Provisions applying to prescribed Consultative
Councils
38 Functions of certain prescribed Consultative
10 Councils
(1) This section applies to a prescribed Consultative
Council established by Order under
section 33(1)(a).
(2) The functions of a prescribed Consultative
15 Council to which this section applies are to--
(a) monitor, analyse and report on matters
specified for that prescribed Consultative
Council in the Order which established that
prescribed Consultative Council;
20 (b) consider, investigate and report on any
matter specified by the Minister or the
Secretary in a direction to the prescribed
Consultative Council under section 37(2);
(c) liaise with any other Consultative Council on
25 any matter relevant to the functions of the
prescribed Consultative Council;
(d) improve public health and wellbeing by
publishing and disseminating relevant
information and practical strategies
30 identified by the prescribed Consultative
Council in the course of performing its
functions;
(e) publish an annual report on the activities of
the prescribed Consultative Council;
561015B.I-6/5/2008 44 BILL LA INTRODUCTION 6/5/2008
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Part 4--Consultative Councils
s. 39
(f) perform any function specified in the Order
which established that prescribed
Consultative Council;
(g) perform any other prescribed function;
5 (h) collect information for the purpose of
performing the functions specified in this
subsection.
39 Request to provide information to prescribed
Consultative Council
10 (1) The Chairperson of a prescribed Consultative
Council by written notice may request--
(a) a health service provider or a health service
provider which is a member of a class of
health service provider; or
15 (b) a pathology service or a pathology service
which is a member of a class of pathology
service--
to provide to the prescribed Consultative Council
general or specific information as specified in the
20 notice within the period or from time to time as
specified in the notice which the Chairperson of
the prescribed Consultative Council considers is
necessary to enable the prescribed Consultative
Council to perform its functions.
25 (2) A health service provider or pathology service to
which subsection (1) applies is authorised to
provide the information requested under
subsection (1) to the Consultative Council.
Note
30 See section 227.
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Part 4--Consultative Councils
s. 40
40 Provision of prescribed information to prescribed
Consultative Council
(1) This section applies to--
(a) a prescribed health service provider or a
5 health service provider which is a member of
a prescribed class of health service provider;
and
(b) a prescribed pathology service or a
pathology service which is a member of a
10 prescribed class of pathology service.
(2) A health service provider or pathology service to
which this section applies must provide the
prescribed information to the relevant prescribed
Consultative Council--
15 (a) in the prescribed manner and form; and
(b) within the prescribed period or at the
prescribed intervals.
Note
See section 227.
20 (3) A health service provider or pathology service to
which this section applies must comply with
subsection (2).
Penalty: 10 penalty units.
41 Disclosure of information held by a prescribed
25 Consultative Council
(1) If a prescribed Consultative Council considers that
it is in the public interest to do so, the prescribed
Consultative Council may provide information
obtained in the course of performing its functions
30 under this or any other Act to--
(a) a responsible board within the meaning of
the Health Professions Registration Act
2005;
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Part 4--Consultative Councils
s. 41
(b) the Health Services Commissioner (or
Acting Health Services Commissioner)
under the Health Services (Conciliation
and Review) Act 1987, but only for the
5 purposes of an inquiry being carried out by
the Health Services Commissioner (or
Acting Health Services Commissioner)
under section 9(1)(m) of that Act;
(c) the State Coroner under the Coroners Act
10 1985;
(d) a Ministerial Committee;
(e) the Minister;
(f) the Secretary;
(g) a protective intervener under section 181 of
15 the Children, Youth and Families Act
2005 if the prescribed Consultative Council
believes that a child is in need of protection;
(h) a health service;
(i) any person in another State, a Territory, the
20 Commonwealth or New Zealand that the
prescribed Consultative Council determines
has functions corresponding to a person
referred to in paragraphs (a) to (h);
(j) any person in another State, a Territory, the
25 Commonwealth or New Zealand that the
prescribed Consultative Council determines
has functions corresponding to a
Consultative Council;
(k) any other person or class of persons
30 prescribed for the purposes of this section.
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Part 4--Consultative Councils
s. 42
(2) In subsection (1), Ministerial Committee means a
committee established by the Minister
administering Part 6 of the Child Wellbeing and
Safety Act 2005 the functions of which include
5 providing advice to the Minister regarding the
death of children and youth who have been the
subject of reports under section 183 of the
Children, Youth and Families Act 2005.
42 Confidentiality obligations applying in respect of a
10 prescribed Consultative Council
(1) This section applies to the following persons--
(a) a prescribed Consultative Council;
(b) a person who is or has been--
(i) a member of a prescribed Consultative
15 Council; or
(ii) a member of a sub-committee of a
prescribed Consultative Council; or
(iii) employed or engaged by a prescribed
Consultative Council; or
20 (iv) made available to a prescribed
Consultative Council.
(2) A person to whom this section applies must not--
(a) directly or indirectly make a record of, or
divulge or communicate to any person any
25 information gained by or conveyed to the
person by reason of the person's office,
employment or engagement; or
(b) make use of the information for any
purpose--
30 other than in the performance of the functions of
the prescribed Consultative Council or to provide
information in accordance with section 37 or 41.
Penalty: 10 penalty units.
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Part 4--Consultative Councils
s. 42
(3) Subsection (2) has effect despite anything to the
contrary in section 12 of the Audit Act 1994.
(4) A person to whom this section applies must not be
required--
5 (a) to produce before any court or tribunal or
any board, agency or other person any
document that has come into the person's
possession or under the person's control in
the performance of the functions of the
10 prescribed Consultative Council; or
(b) to divulge or communicate to any court or
tribunal or any board, agency or other person
any matter or thing that has come under the
person's notice in the performance of the
15 functions of the prescribed Consultative
Council.
(5) The Freedom of Information Act 1982 does not
apply to a document or any information referred
to in subsection (4).
20 (6) Part 5 and HPP 6 of the Health Records Act
2001 do not apply to a document or any
information referred to in subsection (4).
(7) Nothing in this section prevents a prescribed
Consultative Council from including information
25 in any document that does not contain any
particulars which would be likely to lead to the
identification of a person from whom or in
relation to whom the information was obtained.
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Part 4--Consultative Councils
s. 43
43 Confidentiality of documents
(1) A person must not, and cannot, be required to
produce before any court or tribunal or any board,
agency or other person any document in the
5 person's possession or under the person's control
that is the original or a copy of a document that
was--
(a) created for the sole purpose of providing
information to a prescribed Consultative
10 Council; and
(b) provided to the prescribed Consultative
Council by or on behalf of that person.
(2) Except in the case of information or reports
published by a prescribed Consultative Council,
15 the following is not admissible in any action or
proceedings before any court or tribunal or any
board, agency or other person--
(a) evidence of any other information or reports
obtained by or in the possession of a
20 prescribed Consultative Council;
(b) evidence of or about a document to which
subsection (1) applies.
(3) The Freedom of Information Act 1982 does not
apply to a document or any information referred
25 to in subsection (1) or (2).
(4) Part 5 and HPP 6 of the Health Records Act
2001 do not apply to a document or any
information referred to in subsection (1) or (2).
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Part 4--Consultative Councils
s. 44
Division 3--Provisions applying to the Consultative Council
on Obstetric and Paediatric Mortality and Morbidity
44 Consultative Council on Obstetric and Paediatric
Mortality and Morbidity
5 (1) The Consultative Council on Obstetric and
Paediatric Mortality and Morbidity established by
section 162C of the Health Act 1958 as in force
immediately before the commencement of
section 242 is continued under this Act.
10 (2) The Consultative Council on Obstetric and
Paediatric Mortality and Morbidity is referred to
in this Act as CCOPMM.
45 Constitution of CCOPMM
(1) CCOPMM is to consist of not more than
15 12 members appointed by the Minister by Order.
(2) Of the members appointed by Order under
subsection (1)--
(a) one must be appointed as the Chairperson;
(b) one may be appointed as the Deputy
20 Chairperson;
(c) the majority must be persons with special
knowledge which the Minister considers is
relevant to the functions of CCOPMM.
(3) A member appointed under this section--
25 (a) holds office for the period not exceeding
3 years, as is specified in the Order but is
eligible for re-appointment;
(b) may resign from the office of member by
writing signed and delivered to the Minister;
30 (c) may be removed from office by the Minister;
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Part 4--Consultative Councils
s. 46
(d) is not in respect of the office of member
subject to the Public Administration Act
2004 (other than Part 5 of that Act).
(4) An Order under this section must be published in
5 the Government Gazette.
46 Functions of CCOPMM
(1) The functions of CCOPMM are to--
(a) conduct study, research and analysis into the
incidence and causes in Victoria of maternal
10 deaths, stillbirths and the deaths of children;
(b) conduct study, research and analysis into the
incidence and causes of obstetric and
paediatric morbidity;
(c) conduct a perinatal data collection unit for
15 the purpose of--
(i) collecting, studying, researching and
interpreting information on and in
relation to births in Victoria;
(ii) identifying and monitoring trends in
20 respect of perinatal health including
birth defects and disabilities;
(iii) providing information to the Secretary
on the requirements for and the
planning of neonatal care units;
25 (iv) providing information for research into
the epidemiology of perinatal health
including birth defects and disabilities;
(v) establishing and maintaining a register
of birth defects and disabilities;
30 Note
Birth defects and disabilities means any birth defect or
disability of prenatal origin identified in a foetus or a
child.
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Part 4--Consultative Councils
s. 46
(d) provide to health service providers--
(i) information on obstetrics and
paediatrics;
(ii) strategies to improve obstetric and
5 paediatric care;
(e) consider, investigate and report on any other
matters in respect of obstetric and paediatric
mortality and morbidity referred to
CCOPMM by the Minister or the Secretary;
10 (f) liaise with any other Consultative Council
(whether or not prescribed) on any matter
relevant to the functions of CCOPMM;
(g) publish an annual report on the research and
activities of CCOPMM;
15 (h) perform any other prescribed function;
(i) collect information for the purpose of
performing its functions under this
subsection.
(2) The Secretary must make available to CCOPMM
20 any resources from the Department that are
necessary to enable CCOPMM to carry out its
functions.
(3) In this section, maternal death means the death of
a woman who was pregnant at the time of her
25 death or who was pregnant within the period of
12 months immediately before her death.
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Part 4--Consultative Councils
s. 47
47 Request to provide information in relation to the
death of children
(1) The Chairperson of CCOPMM by written notice
may request a person who provided care or
5 services to a child before the child's death to
provide to the CCOPMM general or specific
information as specified in the notice within the
period or from time to time as specified in the
notice which the Chairperson of CCOPMM
10 considers is necessary to enable CCOPMM to
perform the function specified in section 46(1)(a).
(2) A person to whom subsection (1) applies is
authorised to provide the information requested
under subsection (1) to the CCOPMM.
15 Note
See section 227.
(3) This section does not limit the application of
section 39.
48 Report of birth
20 A report of a birth in the form approved by
CCOPMM must be submitted to CCOPMM
within the prescribed period by--
(a) if the birth occurs in a health service, the
proprietor of the health service; or
25 (b) if the birth does not occur in a health
service--
(i) the midwife who is in attendance upon
the mother at the time of the birth; or
(ii) if subparagraph (i) does not apply, the
30 registered medical practitioner who is
in attendance upon the mother at the
time of the birth; or
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Part 4--Consultative Councils
s. 48
(c) if paragraphs (a) and (b) do not apply--
(i) if the mother or the child is admitted to
a health service because of the birth of
the child, the proprietor of the health
5 service; or
(ii) in any other case, the registered
medical practitioner who undertakes the
care and treatment of the mother or the
child because of the birth of the child.
10 Penalty: 10 penalty units.
__________________
561015B.I-6/5/2008 55 BILL LA INTRODUCTION 6/5/2008
Public Health and Wellbeing Bill 2008
Part 5--General Powers
s. 49
PART 5--GENERAL POWERS
Division 1--State Public Health and Wellbeing Plan
49 Minister to ensure preparation of State Public
Health and Wellbeing Plan
5 (1) The Minister must ensure that a State Public
Health and Wellbeing Plan is prepared--
(a) no later than 1 September 2011; and
(b) thereafter no later than 1 September in every
fourth year.
10 (2) A State Public Health and Wellbeing Plan must--
(a) identify the public health and wellbeing
needs of the people of the State;
(b) include an examination of data relating to
health status and health determinants within
15 the State;
(c) establish objectives and policy priorities
for--
(i) the promotion and protection of public
health and wellbeing in the State;
20 (ii) the development and delivery of public
health interventions in the State;
(d) identify how to achieve the objectives and
policy priorities referred to in paragraph (c)
based on available evidence;
25 (e) specify how the State is to work with other
bodies undertaking public health initiatives,
projects and programs to achieve the
objectives and policy priorities referred to in
paragraph (c).
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Part 5--General Powers
s. 50
Division 2--Public inquiries
50 Public inquiry
(1) The Secretary may conduct a public inquiry in
respect of any matter which the Secretary
5 considers is a serious public health matter.
(2) The Minister may direct in writing the Secretary
to conduct a public inquiry in respect of any
matter which the Minister considers is a serious
public health matter and is specified in the
10 direction.
(3) The Secretary may appoint in writing a person or
panel of persons to conduct a public inquiry and
report to the Secretary.
(4) A person appointed under subsection (3) or who is
15 a member of a panel of persons appointed under
subsection (3) must be a person who in the
opinion of the Secretary has the special
knowledge or skills required to conduct the public
inquiry.
20 (5) The Secretary must publish a notice in the
Government Gazette specifying--
(a) the terms of reference of the public inquiry;
(b) information relating to the conduct of the
public inquiry;
25 (c) timelines relating to the public inquiry.
(6) If there is a change to any of the matters referred
to in subsection (5) in relation to a public inquiry
and as specified in a notice published by the
Secretary in the Government Gazette under that
30 subsection, the Secretary must, within one month
after the day the change is made, publish a
subsequent notice in the Government Gazette
specifying the change.
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Part 5--General Powers
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51 Conduct of public inquiry
(1) In conducting a public inquiry--
(a) subject to any regulations, the procedure is in
the discretion of the Convenor;
5 (b) the Convenor may proceed with as little
formality and technicality and with as much
expedition as the requirements of this Act
and a proper investigation of the matter
permit;
10 (c) the Convenor may determine whether or not
to hold any hearings and whether or not any
hearings are to be open to the public;
(d) the Convenor is not bound by the rules of
evidence and may be informed of any matter
15 in any manner the Convenor considers
appropriate;
(e) the Convenor--
(i) must allow a person affected by a
public inquiry to be represented by an
20 Australian lawyer within the meaning
of the Legal Profession Act 2004;
(ii) may allow or refuse to allow any
person to be represented by another
person;
25 (f) the Convenor is bound by the rules of natural
justice.
(2) Sections 14, 15, 16 and 21A of the Evidence Act
1958 apply to a public inquiry and the report of
the public inquiry as if the Convenor were a board
30 appointed by the Governor in Council.
(3) A person who is required to appear as a witness at
a public inquiry is entitled to reasonable witness
expenses as determined by the Convenor.
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Part 5--General Powers
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(4) A person must not give information which he or
she knows is false or misleading to the Convenor.
Penalty: 60 penalty units.
(5) A person must not intentionally hinder or obstruct
5 the conduct of a public inquiry.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
10 (6) In this section, Convenor means the Secretary or
the person or panel of persons appointed by the
Secretary to conduct the public inquiry.
52 Report of public inquiry
(1) If the Convenor under section 51 is not the
15 Secretary, the Convenor must provide the report
of the public inquiry to the Secretary.
(2) The Secretary must publish the report of a public
inquiry within the period of 3 months after the
public inquiry is concluded.
20 Division 3--Health Impact Assessments
53 Health Impact Assessment
(1) The Minister may, by a direction in writing,
require the Secretary or the Chief Health Officer
to conduct a Health Impact Assessment of the
25 public health and wellbeing impact of a matter
specified in the direction.
(2) A direction under subsection (1) may specify the
period within which the Health Impact
Assessment is to be completed.
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Part 5--General Powers
s. 54
Division 4--Collection and disclosure of information
54 Application of Division
This Division--
(a) applies in addition to any specific provisions
5 relating to the provision, collection, use or
disclosure of information in this Act or the
regulations; and
(b) prevails to the extent of any inconsistency
with a provision of a kind referred to in
10 paragraph (a).
55 Disclosure of information to specified persons
A person is authorised to disclose information to
the Secretary, the Chief Health Officer or an
authorised officer of the Department if the person
15 reasonably believes that the disclosure is
necessary to assist the Secretary, the Chief Health
Officer or the authorised officer to exercise a
power, or perform a duty or function, under this
Act or the regulations.
20 Note
See section 227.
56 Secretary may disclose information in certain
circumstances to a relevant body
(1) If this section applies, the Secretary may disclose
25 any information held by the Secretary under, or
for the purposes of, this Act or the regulations to a
relevant body.
(2) This section applies if the disclosure of the
information to the relevant body--
30 (a) is required or allowed under an agreement
between the Secretary and the relevant body,
notice of which agreement is published in the
Government Gazette; and
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Part 5--General Powers
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(b) is for the purpose of promoting or protecting
public health.
(3) In this section, relevant body means--
(a) the Commonwealth;
5 (b) another State;
(c) a Territory;
(d) a Government Department of the
Commonwealth, another State or a Territory;
(e) an entity established for a public purpose
10 under an Act of the Commonwealth, another
State or a Territory;
(f) a body (including an international body)
which is prescribed for the purposes of this
section;
15 (g) the holder of a statutory office under an Act
of the Commonwealth, another State or a
Territory.
57 Disclosure of information to other administrators
(1) The Secretary or the Chief Health Officer may
20 disclose any information held by the Secretary or
the Chief Health Officer under, or for the purposes
of, this Act or the regulations to a Council if the
Secretary or the Chief Health Officer considers
that the disclosure would assist the Council to
25 perform its duties or functions or exercise its
powers under this Act or the regulations.
(2) A Council may disclose any information that it
holds under, or for the purposes of, this Act or the
regulations to the Secretary, the Chief Health
30 Officer or another Council if the Council
considers that the disclosure would assist the
Secretary, the Chief Health Officer or the Council
to perform their duties or functions or exercise
their powers under this Act or the regulations.
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Part 5--General Powers
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(3) The Secretary or the Chief Health Officer may
disclose any information held by the Secretary or
the Chief Health Officer under, or for the purposes
of, Part 6 or 7 or the regulations made for the
5 purposes of those Parts to a Government
Department, statutory body or other person
responsible for administering another Act or
regulations made under that Act if the Secretary or
the Chief Health Officer considers that the
10 disclosure would assist that Government
Department, statutory body or other person to
perform their duties or functions or exercise their
powers under that Act or the regulations made
under that Act.
15 (4) A Council may disclose any information that it
holds under, or for the purposes of, Part 6 or the
regulations made for the purposes of that Part to a
Government Department, statutory body or other
person responsible for administering another Act
20 or regulations made under that Act if the Council
considers that the disclosure would assist that
Government Department, statutory body or other
person to perform their duties or functions or
exercise their powers under that Act or the
25 regulations made under that Act.
__________________
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Part 6--Regulatory Provisions Administered by Councils
s. 58
PART 6--REGULATORY PROVISIONS ADMINISTERED BY
COUNCILS
Division 1--Nuisances
58 Application of Division
5 (1) This Division applies to nuisances which are, or
are liable to be, dangerous to health or offensive.
(2) Without limiting the generality of subsection (1),
this Division applies in particular to nuisances
arising from or constituted by any--
10 (a) premises; or
(b) water; or
(c) animal, including a bird or insect, capable of
carrying a disease transmissible to human
beings; or
15 (d) refuse; or
(e) noise or emission; or
(f) state, condition or activity; or
(g) other matter or thing--
which is, or is liable to be, dangerous to health or
20 offensive.
(3) For the purpose of determining whether a
nuisance arising from or constituted by any matter
or thing referred to in subsection (2) is, or is liable
to be, dangerous to health or offensive--
25 (a) regard must not be had to the number of
persons affected or that may be affected; and
(b) regard may be had to the degree of
offensiveness.
(4) In this section, offensive means noxious or
30 injurious to personal comfort.
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59 Effect of Division
(1) This Division does not render lawful any act,
matter or thing which but for this Act would be a
nuisance.
5 (2) This Division is in addition to, and does not
prejudice, abridge or otherwise affect any right,
remedy or proceeding under any other provision
of this Act, or under any other Act, or at common
law.
10 60 Duty of Council
A Council has a duty to remedy as far as is
reasonably possible all nuisances existing in its
municipal district.
61 Offence of causing a nuisance
15 (1) A person must not--
(a) cause a nuisance; or
(b) knowingly allow or suffer a nuisance to exist
on, or emanate from, any land owned or
occupied by that person.
20 Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
(2) A person is not guilty of an offence under
25 subsection (1)(b) if the person had a lawful excuse
for knowingly allowing or suffering a nuisance to
exist on, or emanate from, any land owned or
occupied by that person.
62 Notification of nuisance
30 (1) If a person believes that a nuisance exists, that
person may notify the Council in whose municipal
district the alleged nuisance exists.
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(2) The Council must investigate any notice of a
nuisance.
(3) If, upon investigation, a nuisance is found to exist,
the Council must--
5 (a) take any action specified in subsection (4)
that the Council considers appropriate; or
(b) if the Council is of the opinion that the
matter is better settled privately, advise the
person notifying the Council of the nuisance
10 of any available methods for settling the
matter privately.
(4) For the purposes of subsection (3)(a), the Council
may--
(a) if section 66 applies, exercise the powers
15 conferred by that section;
(b) issue an improvement notice or a prohibition
notice;
(c) bring proceedings under section 219(2) for
an offence against this Act.
20 Note
See section 197 in relation to the power of a Council to
bring proceedings after it has issued an improvement notice
or a prohibition notice in respect of a nuisance.
63 Failure of Council to investigate complaint
25 (1) If the Council does not, within a reasonable time
of being notified of an alleged nuisance,
investigate the subject matter of the notification,
the person who notified the Council may make a
complaint to the Magistrates' Court of the
30 existence of the alleged nuisance.
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(2) If the Magistrates' Court receives a complaint
under subsection (1), the Magistrates' Court
may--
(a) summon the person alleged to be
5 contravening section 61 to appear before the
Magistrates' Court; and
(b) proceed as if the complaint had been made
by a Council under section 197(2).
(3) If the Magistrates' Court is satisfied that the
10 person making a complaint under this section had
reasonable grounds for doing so, the Magistrates'
Court may order the Council to pay any costs and
expenses incurred by that person.
(4) The Magistrates' Court must not order a Council
15 to pay any costs or expenses under subsection (3)
unless the Magistrates' Court first gives the
Council or its representative an opportunity to be
heard.
(5) If the Magistrates' Court is satisfied that a
20 complaint under this section is vexatious or
frivolous, the Magistrates' Court may order the
person making the complaint to pay the costs and
expenses incurred by the person who has
answered the complaint.
25 64 Who can institute proceedings?
Proceedings for an offence against section 61 can
only be instituted by the Council of a municipal
district in which the nuisance in respect of which
the proceedings are to be brought exists wholly or
30 partly.
65 Power of Council to investigate nuisance outside its
municipal districts
A Council may investigate a nuisance which
exists outside its municipal district if that nuisance
35 affects the Council's municipal district.
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66 Nuisance on unoccupied land or occupied land--
occupier and owner unknown or cannot be found
(1) This section applies if a nuisance exists on, or
emanates from--
5 (a) unoccupied land, the owner of which is
unknown or cannot be found; or
(b) occupied land, the occupier and owner of
which are unknown or cannot be found.
(2) If this section applies, the Council, in whose
10 municipal district the land is wholly or partly
located, may--
(a) enter and take steps to abate the nuisance;
and
(b) do all things necessary for that abatement.
15 (3) If a Council is abating a nuisance under
subsection (2), another Council is not competent
under this Division to abate that nuisance.
(4) Any reasonable costs incurred under subsection
(2) are a debt payable to the Council by the owner
20 of the land and--
(a) are until recovered a charge on the relevant
land; and
(b) may at any time be recovered by the Council
in a court of competent jurisdiction--
25 (i) from the owner of the relevant land for
the time being; or
(ii) after demand from the occupier of the
relevant land for the time being, from
the rent, to the extent of the amount of
30 rent due, at the time of demand, from
the occupier to the owner.
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(5) For the purposes of subsection (4), reasonable
costs means--
(a) the costs and expenses of taking the actions
necessary to abate the nuisance; and
5 (b) all other costs and expenses lawfully
incurred by the Council in respect of any
land or any premises on the land whether or
not any judgment or order has been obtained;
and
10 (c) interest at the percentage rate per annum
fixed in accordance with section 2 of the
Penalty Interest Rates Act 1983.
Division 2--Registration of prescribed accommodation
67 Registration of prescribed accommodation
15 The proprietor of prescribed accommodation
must, in accordance with Division 4, register that
accommodation with the Council in whose
municipal district the prescribed accommodation
is located.
20 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
Division 3--Registration of certain businesses
25 68 Application of Division
This Division applies in respect of a person
conducting a--
(a) business of beauty therapy;
(b) business involving colonic irrigation;
30 (c) business of hairdressing;
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(d) business involving skin penetration;
(e) business involving tattooing;
(f) business that poses a risk to public health
and is a business of a class of business
5 prescribed for the purposes of this section.
69 Registration of premises
(1) Unless subsection (2) applies, a person conducting
a business referred to in section 68 must, in
accordance with Division 4, register any premises
10 upon which that person conducts that business
with the Council in whose municipal district the
premises are located.
Penalty: In the case of a natural person,
60 penalty units;
15 In the case of a body corporate,
300 penalty units.
(2) Subsection (1) does not apply if the person is
conducting a business specified in section 68 in
the course of a business which is prescribed as an
20 exempt business or which is a business of a class
of business prescribed to be exempt for the
purposes of this section.
Division 4--General provisions relating to registration
70 Application of Division
25 This Division applies in respect of the registration
of--
(a) prescribed accommodation required to be
registered under Division 2;
(b) premises required to be registered under
30 Division 3.
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s. 71
71 Application for registration
An application for the issue, renewal or transfer of
a registration must be made to the Council--
(a) in the form approved by the Council;
5 (b) containing any information in respect of the
prescribed accommodation or the premises
required by the Council;
(c) containing the prescribed particulars;
(d) together with the relevant fee for the issue,
10 renewal or transfer of the registration.
72 Registration fees
(1) The fees payable in respect of the issue, transfer
or renewal of a registration are--
(a) if this Division applies in a municipal
15 district, the fees as determined by a
resolution of the Council of that municipal
district; or
(b) if the application for the issue, transfer or
renewal of a registration is being dealt with
20 by the Secretary under an Order in Council
made under section 12, the prescribed fees;
(c) if the application for the issue, transfer or
renewal of a registration is being dealt with
by a Council under a delegation from the
25 Secretary under an Order in Council made
under section 12, the fees as determined by a
resolution of the Council;
(d) if the application for the issue, transfer or
renewal of a registration is being dealt with a
30 person (other than a Council) under a
delegation from the Secretary under an Order
in Council made under section 12, the
prescribed fees.
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(2) The fees determined by a Council under
subsection (1)(a) or (1)(c)--
(a) may vary according, among other things, to
the following--
5 (i) the size or nature of the prescribed
accommodation or the premises;
(ii) when an application for the issue,
transfer or renewal of a registration is
received; and
10 (b) if a maximum amount is fixed in respect of a
specified fee or class of fees by Order in
Council, must not exceed the relevant
amount.
73 Powers of the Council
15 (1) Before considering an application under
section 71, the Council may--
(a) give the applicant a notice requiring the
applicant to provide the information
specified in the notice;
20 (b) inspect the prescribed accommodation or the
premises;
(c) require that alterations or improvements be
made to the prescribed accommodation or
the premises so the prescribed
25 accommodation or the premises comply with
this Act or the regulations.
(2) The Council may issue, transfer or renew a
registration subject to the condition that a
requirement under subsection (1)(c) is complied
30 with within the period specified by the Council.
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Part 6--Regulatory Provisions Administered by Councils
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74 Provisions applying in respect of registration
A registration must be issued, transferred or
renewed by the Council--
(a) in accordance with this Act and the
5 regulations;
(b) in the form of a certificate of registration
approved by the Council;
(c) only in respect of the prescribed
accommodation or the premises specified in
10 the registration;
(d) for such period as is determined by the
Council being a period not greater than
3 years and which period must be specified
in the registration;
15 (e) unless sooner cancelled or suspended, to
remain in force until the day specified in the
registration for the expiration of that
registration.
75 Registration subject to conditions
20 (1) The following are the conditions to which a
registration is subject--
(a) any condition imposed on the registration by
the Council under section 73(2);
(b) any condition imposed on the registration
25 holder by this Act or the regulations;
(c) any prescribed conditions which apply to a
registration or a registration of that class.
(2) A registration holder must comply with the
conditions to which the registration is subject.
30 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
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76 Powers of a Council in respect of registration
(1) A Council may--
(a) refuse to issue;
(b) issue subject to a condition imposed on the
5 registration by the Council under
section 73(2);
(c) vary;
(d) cancel;
(e) suspend;
10 (f) refuse to transfer;
(g) transfer subject to a condition imposed on
the registration by the Council under
section 73(2);
(h) refuse to renew;
15 (i) renew subject to a condition imposed on the
registration by the Council under
section 73(2)--
a registration on any of the grounds specified in
subsection (2).
20 (2) The grounds are--
(a) the applicant, registration holder, prescribed
accommodation or the premises do not meet
or comply with any requirement of this Act
or the regulations that is applicable;
25 (b) the registration holder has failed to comply
with any condition to which the registration
is subject;
(c) the applicant has ceased to provide
prescribed accommodation or conduct the
30 business in respect of which registration is
required;
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(d) there is a risk to the health of persons if the
registration is not cancelled or suspended or
is issued, transferred or renewed;
(e) any other ground which is prescribed for the
5 purposes of this section.
(3) If a Council makes a decision under this section, it
must notify the applicant or registration holder in
writing of the decision and ground or grounds on
which the decision is based.
10 77 Council's delegation of power to refuse applications
Despite section 98 of the Local Government Act
1989, the exercise by a delegate of a Council's
power to refuse an application under this Division
is valid only if the Council later ratifies that
15 refusal.
78 Issue of replacement certificate
The Council may issue a replacement certificate
of registration or renewal of registration to a
holder who satisfies the Council that the original
20 certificate of registration or renewal of registration
has been lost, stolen or destroyed.
__________________
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Part 7--Regulatory Provisions Administered by the Secretary
s. 79
PART 7--REGULATORY PROVISIONS ADMINISTERED BY
THE SECRETARY
Division 1--Cooling tower systems
79 When is a cooling tower system in operation?
5 (1) Once a cooling tower system starts operation
(whether initially, or after being recommissioned),
then, for the purposes of this Division, the cooling
tower system remains in operation until--
(a) it is decommissioned or removed; and
10 (b) the Secretary has been notified in accordance
with section 88 that it has been
decommissioned or removed.
(2) For the purposes of this Division, a cooling tower
system is in operation even if the only purpose for
15 which it is in operation is to enable the conducting
of tests associated with the installation or
commissioning or re-commissioning of the
cooling tower system.
80 Cooling tower system must be registered
20 The owner of any land on which there is a cooling
tower system must ensure that the cooling tower
system is registered with the Secretary at all times
that the cooling tower system is in operation.
Penalty: In the case of a natural person,
25 120 penalty units;
In the case of a body corporate,
600 penalty units.
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81 Applications for registration or renewal of
registration
(1) An application to register, or to renew the
registration of, a cooling tower system may be
5 made to the Secretary by--
(a) the owner of the land on which the cooling
tower system is located;
(b) the owner of the cooling tower system;
(c) an agent, employee or other person acting
10 on behalf of the person referred to in
paragraph (a) or (b).
(2) The application must--
(a) be submitted in the approved form; and
(b) include--
15 (i) any information required by the
Secretary that relates to the registration;
and
(ii) the relevant prescribed fee.
82 Powers of the Secretary
20 Before considering an application under
section 81, the Secretary may give the applicant a
notice requiring the applicant to provide the
information specified in the notice.
83 Processing of applications
25 The Secretary must give the owner of the land on
which the cooling tower system is located a
certificate of registration, or renewal of
registration, for the cooling tower system that
states the date--
30 (a) on which the registration or renewal
occurred; and
(b) when the registration will expire.
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84 Multiple cooling tower systems
(1) The owner of land on which there are 2 or more
cooling tower systems or an agent, employee or
other person acting on behalf of that owner may
5 submit one application for registration or renewal
of registration in respect of the cooling tower
systems which gives details of each cooling tower
system.
(2) An agent, employee or other person acting on
10 behalf of the owner of 2 or more cooling tower
systems on any land may submit one application
for registration or renewal of registration in
respect of the cooling tower systems which gives
details of each cooling tower system.
15 (3) An agent or other person acting on behalf of all of
the owners of the cooling tower systems on any
land may submit one application for registration
or renewal of registration in respect of the cooling
tower systems which gives details of each cooling
20 tower system.
85 Period of registration
(1) The initial registration of a cooling tower system
expires on the date specified in the certificate of
registration, being a date not more than 3 years
25 after the date on which the registration was first
made.
(2) The renewal of registration of a cooling tower
system expires on the date specified in the
certificate of renewal of registration, being a date
30 not more than 3 years after the date on which the
registration was last renewed.
(3) Despite subsection (2), if an application for the
renewal of a registration is received by the
Secretary within 60 days after the registration
35 expired, the renewal of registration expires on the
date specified in the certificate of renewal of
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registration, being a date not more than 3 years
after the date on which the registration expired.
(4) In the circumstances specified in subsection (3)--
(a) the granting of the certificate of renewal of
5 registration does not affect the unregistered
status of the cooling tower system between
the expiry of the previous registration and
the granting of the certificate; and
(b) the full prescribed fee for the renewal of
10 registration must still be paid calculated from
the day after the day on which the
registration expired.
86 Registration to continue pending renewal
(1) This section applies if the Secretary receives an
15 application under section 81 for the renewal of the
registration of a cooling tower system before the
registration is due to expire.
(2) Despite anything to the contrary in this Division,
the registration is deemed to continue until a
20 certificate of the renewal of the registration is
issued.
(3) If a certificate of the renewal of registration is
issued, the registration is deemed to have been
renewed on the day after the day on which it
25 would have expired had it not been renewed.
87 Secretary to be notified of certain changes
(1) This section applies if there is a change in--
(a) the ownership of any land on which there is a
cooling tower system; or
30 (b) the address or other contact details of the
owner.
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(2) Within 30 days after the date of the change in the
ownership or in the address or other contact
details, the owner of the land must notify the
Secretary in writing of the change.
5 Penalty: In the case of a natural person,
10 penalty units;
In the case of a body corporate,
50 penalty units.
88 Secretary to be notified of other changes
10 (1) A person who holds a certificate of registration in
respect of a cooling tower system must notify the
Secretary within 30 days after--
(a) the addition or removal of a cooling tower to,
or from, the cooling tower system;
15 (b) the removal, or decommissioning, of the
cooling tower system;
(c) the relocation of the cooling tower system on
the lot of land on which it stands.
Penalty: In the case of a natural person,
20 10 penalty units;
In the case of a body corporate,
50 penalty units.
(2) A notification under subsection (1) must--
(a) be made in the form and manner approved
25 by the Secretary; and
(b) contain the prescribed details.
89 Cooling tower system register
(1) The Secretary must keep a register containing
details of the location of each registered cooling
30 tower system.
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(2) The Secretary must ensure that the register is
available for inspection by any person wishing to
inspect the register during the Department's
normal office hours.
5 90 Issue of replacement certificate
The Secretary may issue a replacement certificate
of registration or renewal of registration to a
holder who satisfies the Secretary that the original
certificate of registration or renewal of registration
10 has been lost, stolen or destroyed.
91 Owner must ensure risk management plan prepared
(1) The owner of any land on which there is a cooling
tower system must take all reasonable steps to
ensure that a risk management plan exists in
15 respect of the cooling tower system at all times
that the cooling tower system is in operation.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
20 300 penalty units.
(2) The risk management plan must--
(a) address the risks prescribed in respect of
cooling tower systems and set out the steps
to be taken to manage the risks;
25 (b) set out the steps to be taken to ensure
compliance with any risk management
requirements relating to the cooling tower
system;
(c) include any other matters prescribed for the
30 purposes of this section;
(d) be in the approved form.
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92 Owner must ensure risk management plan reviewed
(1) The owner of any land on which there is a cooling
tower system must take all reasonable steps to
ensure that the risk management plan is reviewed,
5 and, if necessary, updated, at least once in each
12 month period.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
10 300 penalty units.
(2) The owner of the land must also take all
reasonable steps to ensure that the risk
management plan is reviewed, and if necessary
updated, if--
15 (a) legionella is detected in the cooling tower
system on 2 or more occasions in any period
of 12 months; or
(b) the owner of the land is given written advice
by the Secretary that a case of legionnaires'
20 disease is associated with the cooling tower
system; or
(c) the owner of the land receives a report from
the Secretary or from any person engaged by
the owner of the land or the owner of the
25 cooling tower system that control measures
used in respect of the cooling tower system
are inadequate or require improvement; or
(d) there is a significant change in--
(i) any of the environmental conditions
30 under which the cooling tower system
operates; or
(ii) the operation of the cooling tower
system; or
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(e) the owner of the land receives an audit
certificate that states that the risk
management plan does not address the
prescribed risks.
5 (3) The owner of the land must comply with
subsection (2) as soon as is practicable after the
occurrence of the relevant triggering event.
Penalty: In the case of a natural person,
60 penalty units;
10 In the case of a body corporate,
300 penalty units.
93 Owner must ensure risk management plan audit
conducted
(1) The owner of any land on which there is a cooling
15 tower system must take all reasonable steps to
ensure that an audit is conducted annually in
relation to the risk management plan prepared in
respect of a cooling tower system.
Penalty: In the case of a natural person,
20 60 penalty units;
In the case of a body corporate,
300 penalty units.
(2) An owner of land is not excused from complying
with this section merely because the carrying out
25 of the audit can only be done at the owner's
expense.
(3) The risk management plan audit must be
conducted by an approved auditor for the purpose
of determining whether the risk management
30 plan--
(a) complied with section 91(2) throughout the
period in respect of which the audit is
undertaken; and
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(b) has been implemented during that period;
and
(c) has been reviewed within the 12 months
immediately before the audit.
5 (4) In conducting the audit, the approved auditor must
inspect all the documents relating to the cooling
tower system that are prescribed for the purposes
of this section.
(5) The approved auditor is not required to--
10 (a) determine whether the risk management plan
has, in fact, adequately controlled the risks
associated with the use of a cooling tower
system; or
(b) inspect the cooling tower system.
15 (6) After conducting the audit, the approved auditor
must give the person who commissioned the audit
a certificate stating the auditor's opinion on
whether the risk management plan--
(a) complied with section 91(2) throughout the
20 period in respect of which the audit is
undertaken; and
(b) has been implemented during that period;
and
(c) has been reviewed within the 12 months
25 immediately before the audit.
(7) The certificate must--
(a) be in the approved form; and
(b) contain any information required by the
Secretary.
30 (8) The approved auditor must give the Secretary a
copy of the information in the audit certificate
within 7 days after completing the certificate.
Penalty: 10 penalty units.
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94 Certification of approved auditors
(1) The Secretary may certify in writing that a natural
person is--
(a) competent to conduct a risk management
5 plan audit; and
(b) an approved auditor for the purposes of this
Act.
(2) In certifying a person as an approved auditor, the
Secretary may--
10 (a) impose any conditions on the certification
that the Secretary considers to be
appropriate; and
(b) specify for how long the certificate remains
current.
15 (3) If any fee is prescribed in relation to a
certification, the Secretary must not certify a
person until the person has paid the fee.
(4) An approved auditor must comply with any
condition imposed on the certification by the
20 Secretary under subsection (2)(a).
Penalty: 60 penalty units.
(5) The Secretary may, after giving a person an
opportunity to be heard, revoke that person's
certification as an approved auditor if the
25 Secretary is satisfied that--
(a) the certification was granted on the basis of
fraud, misrepresentation or the concealment
of facts; or
(b) the person is not a suitable person to be an
30 approved auditor; or
(c) the person has failed to comply with any
requirement imposed by this Act or the
regulations on approved auditors; or
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(d) the person has unsatisfactorily carried out
2 or more risk management plan audits; or
(e) any other ground which is prescribed for the
purposes of this section applies.
5 95 Only approved auditors may conduct audits
A person must not conduct a risk management
plan audit unless he or she is an approved auditor.
Penalty: 60 penalty units.
96 Offence to impersonate approved auditor
10 A person who is not an approved auditor must
not--
(a) use or take the title "approved auditor" in
relation to the conduct of a risk management
plan audit; or
15 (b) directly or indirectly represent that he or she
is approved or authorised to conduct a risk
management plan audit.
Penalty: 60 penalty units.
97 Conflict of interest to be avoided
20 (1) A person must not conduct a risk management
plan audit of the risk management plan of a
cooling tower system if the person is an interested
person or is an employee or officer of an
interested person.
25 Penalty: 60 penalty units.
(2) A person must not conduct a risk management
plan audit of a risk management plan as an
employee of another person if any other employee
of that other person has written, or assisted in
30 preparing, that risk management plan.
Penalty: 60 penalty units.
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(3) In this section, interested person, in relation to a
cooling tower system, means--
(a) the owner of the land on which the cooling
tower system stands;
5 (b) the owner of the cooling tower system;
(c) a person who was involved in the
construction or installation of the cooling
tower system;
(d) a person who was involved in the
10 maintenance or testing of the cooling tower
system during the period covered by an
audit;
(e) a person who has written, or has assisted in
the writing of, a risk management plan for
15 the cooling tower system;
(f) a person who has reviewed, or has assisted in
the reviewing of, the risk management plan
for the cooling tower system.
98 Secretary may declare optional variations
20 (1) The Secretary may by notice in writing declare
optional variations to risk management
requirements in respect of a particular cooling
tower system or a class of cooling tower systems
if the Secretary is satisfied that the variation
25 would not result in a higher health risk.
(2) If a notice under subsection (1) applies to a class
of cooling tower systems, the Secretary must
publish a copy of the notice in the Government
Gazette.
30 (3) If the owner of a cooling tower system in respect
of which a declaration under subsection (1)
applies--
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(a) elects in writing to the Secretary to
implement the variations to the risk
management requirements which would
otherwise apply in respect of the cooling
5 tower system; and
(b) complies with the risk management
requirements as varied--
the owner is to be taken to have complied with the
risk management requirements under this Act or
10 the regulations that would otherwise have applied.
Division 2--Pest control
99 Use of certain pesticides prohibited
Subject to section 100, a natural person must not,
in the course of the business of a pest control
15 operator, use any pesticide or class of pesticides
unless the person holds a pest control licence as an
authorised user of that pesticide or class of
pesticides.
Penalty: 120 penalty units.
20 100 Exemption
Section 99 does not apply if the use of the
pesticide is for the purposes of--
(a) horticulture; or
(b) agriculture; or
25 (c) water treatment; or
(d) weed control; or
(e) controlling a pest animal within the meaning
of the Catchment and Land Protection Act
1994 to protect an area or place which is
30 not--
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(i) a building used for commercial
purposes; or
(ii) domestic premises or privately owned
land adjacent to domestic premises.
5 101 Issue or renewal of pest control licences
(1) A person may apply to the Secretary in the
approved form for the issue or renewal of a pest
control licence to use a pesticide or class of
pesticide in the course of a business of a pest
10 control operator.
(2) The Secretary must not grant an application for
the issue or renewal of a pest control licence
unless the person applying for the issue or
renewal--
15 (a) is a natural person of at least 18 years of age;
and
(b) satisfies the Secretary that the person has the
prescribed qualifications; and
(c) has paid the relevant prescribed licence fee.
20 (3) Despite subsection (2), the Secretary may grant an
application for the issue or renewal of a pest
control licence to a natural person who--
(a) is at least 16 years of age; and
(b) satisfies the Secretary that the person is--
25 (i) enrolled in a prescribed course of
training; or
(ii) undertaking training in the prescribed
units of competency; and
(c) has paid the relevant prescribed licence fee.
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(4) Unless satisfied that there are special
circumstances for doing so, the Secretary must not
grant an application under subsection (3) to a
person more than 3 times.
5 (5) Subject to sections 102(3) and 102(4), an
application for the renewal of a pest control
licence may be made--
(a) before the expiry of the pest control licence;
or
10 (b) within the period of 60 days after the pest
control licence has expired.
102 Duration of pest control licence
(1) A pest control licence expires--
(a) in the case of a pest control licence issued
15 under section 101(3), on the date specified in
the pest control licence being a date not more
than 12 months after the date on which the
pest control licence is issued; and
(b) in any other case, on the date specified in the
20 pest control licence being a date not more
than 3 years after the date on which the pest
control licence is issued.
(2) The renewal of a pest control licence expires--
(a) in the case of a pest control licence issued
25 under section 101(3), on the date specified in
the pest control licence being a date not more
than 12 months after the date on which the
pest control licence was last renewed; and
(b) in any other case, on the date specified in the
30 pest control licence being a date not more
than 3 years after the date on which the pest
control licence was last renewed.
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(3) Despite subsection (2)(a), if an application for the
renewal of a pest control licence issued under
section 101(3) is received by the Secretary within
the period of 60 days after the pest control licence
5 expired, the renewal of the pest control licence
expires on the date specified in the pest control
licence being a date not more than 12 months after
the date on which the pest control licence expired.
(4) Despite subsection (2)(b), if an application for the
10 renewal of a pest control licence issued under
section 101(2) is received by the Secretary within
the period of 60 days after the pest control licence
expired, the renewal of the pest control licence
expires on the date specified in the pest control
15 licence being a date not more than 3 years after
the date on which the pest control licence expired.
(5) In the circumstances specified in subsections (3)
and (4)--
(a) the granting of the renewal of the pest
20 control licence does not affect the unlicensed
status of the person between the expiry of the
pest control licence and the granting of the
renewal; and
(b) the full prescribed fee for the renewal of the
25 pest control licence must still be paid
calculated from the day after which the pest
control licence expired.
103 Conditions of pest control licence
(1) Without limiting subsection (2), a pest control
30 licence is subject to the following conditions--
(a) the licence holder must comply with any
obligation or limitation imposed on the
licence holder by this Act or the regulations;
(b) the licence holder is only authorised to use
35 the pesticide or classes of pesticides
specified in the pest control licence;
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(c) the licence holder must comply with any
relevant obligations imposed by the
Agricultural and Veterinary Chemicals
(Control of Use) Act 1992 and the
5 Occupational Health and Safety Act 2004;
(d) if the pest control licence is granted under
section 101(3), the licence holder may only
use the pesticides or classes of pesticides
entered on the pest control licence under the
10 supervision of a person who holds a pest
control licence as an authorised user of those
pesticides or classes of pesticides under
section 101(2).
(2) A pest control licence may also be issued or
15 renewed subject to the following conditions--
(a) if the pest control licence so specifies, a
condition that the specified pesticide or
classes of pesticides may only be used for
the specified uses;
20 (b) a condition permitting the use of a prescribed
chemical product or a chemical product of a
class that is prescribed within the meaning of
section 30 of the Agricultural and
Veterinary Chemicals (Control of Use)
25 Act 1992 for a purpose referred to in
section 100;
(c) any other condition imposed by the
Secretary.
(3) The Secretary can only issue or renew a licence
30 subject to a condition referred to in subsection
(2)(b) if the Secretary--
(a) is satisfied that the licence holder is
competent to use the prescribed chemical
product or chemical product of a class that is
35 prescribed; and
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(b) has consulted the Secretary to the
Department of Primary Industries.
104 Application to vary pest control licence
A licence holder may apply to the Secretary in the
5 approved form to vary or delete any condition, or
other matter, relating to a pest control licence.
105 Powers of Secretary
(1) The Secretary, after giving the relevant person an
opportunity to be heard, may--
10 (a) refuse to issue;
(b) issue subject to any conditions;
(c) vary;
(d) cancel;
(e) suspend;
15 (f) refuse to renew;
(g) renew subject to conditions--
a pest control licence on any of the grounds
specified in subsection (2).
(2) The grounds are--
20 (a) the applicant or licence holder is not a
suitable person to hold a pest control licence;
(b) the applicant or licence holder does not meet
or comply with any requirement of this Act
or the regulations that is applicable;
25 (c) the licence holder has failed to comply with
any conditions to which the pest control
licence is subject;
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(d) there is a risk to the health of persons if the
issue or renewal of a pest control licence is
not refused, or the pest control licence is not
cancelled or suspended, or the issue or
5 renewal of the pest control licence is not
subject to conditions;
(e) any other ground which is prescribed for the
purposes of this section.
(3) The Secretary may on the application of a licence
10 holder under section 104, vary or delete any
condition, or other matter, relating to a pest
control licence if the Secretary is satisfied that the
variation or deletion would not make the pest
control licence inconsistent with any requirement
15 under this Act or the regulations.
(4) The Secretary must advise the applicant or holder
of the pest control licence in writing of--
(a) any decision under this section; and
(b) the ground for that decision.
20 (5) If the Secretary decides to vary or delete a
condition to which a pest control licence is
subject, being a condition of the kind referred to
in section 103(1)(b) or 103(2)(a), the Secretary--
(a) may require the holder of the licence to give
25 his or her pest control licence to the
Secretary; and
(b) must issue a revised pest control licence to
the holder.
(6) A holder of the licence must comply with a
30 requirement of the Secretary under
subsection (5)(a).
Penalty: 10 penalty units.
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106 Form of pest control licence
(1) If the Secretary grants an application for the issue
or renewal of a pest control licence, the Secretary
must provide the applicant with a licence--
5 (a) specifying--
(i) the name of the licence holder;
(ii) the date on which the licence was
issued or renewed;
(iii) the date on which the licence will
10 expire;
(iv) the pesticide or class of pesticide which
the licence holder is authorised to use;
(v) if applicable, the uses that the licence
holder is authorised to use the pesticide
15 or class of pesticide for;
(b) containing a photograph of the licence
holder.
(2) When providing an applicant with a licence under
subsection (1), the Secretary must also advise the
20 applicant in writing of the conditions to which the
licence is subject.
107 Issue of replacement pest control licence
The Secretary may issue a replacement pest
control licence to a holder who satisfies the
25 Secretary that the holder's original or renewed pest
control licence has been lost, stolen or destroyed.
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108 Records
A pest control operator must keep records
containing the prescribed details for the prescribed
period.
5 Penalty: In the case of a natural person,
10 penalty units;
In the case of a body corporate,
50 penalty units.
109 Offences by holder of pest control licence or pest
10 control operator
(1) The holder of a pest control licence must comply
with the conditions of the pest control licence.
Penalty: 120 penalty units.
(2) A pest control operator must take all reasonable
15 steps to ensure that persons employed in the
course of the business of pest control operator by
the pest control operator comply with the
provisions of this Division and the regulations
made for the purposes of this Division.
20 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
110 Offence by person who is not the holder of a pest
25 control licence
A natural person who is not the holder of a pest
control licence must not, whether explicitly,
implicitly, orally or in writing--
(a) claim to be the holder of a pest control
30 licence; or
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(b) hold themselves out as being qualified to use
any pesticide in circumstances which require
a person using the pesticide to be the holder
of a pest control licence; or
5 (c) represent that they have used any pesticide in
circumstances which would require a person
using the pesticide to be the holder of a pest
control licence.
Penalty: 60 penalty units.
__________________
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and Medical Conditions
PART 8--MANAGEMENT AND CONTROL OF INFECTIOUS
DISEASES, MICRO-ORGANISMS AND MEDICAL
CONDITIONS
Division 1--Principles applying to the management and
5 control of infectious diseases
111 Principles
The following principles apply to the management
and control of infectious diseases--
(a) the spread of an infectious disease should be
10 prevented or minimised with the minimum
restriction on the rights of any person;
(b) a person at risk of contracting an infectious
disease should take all reasonable
precautions to avoid contracting the
15 infectious disease;
(c) a person who has, or suspects that they may
have, an infectious disease should--
(i) ascertain whether he or she has an
infectious disease and what precautions
20 he or she should take to prevent any
other person from contracting the
infectious disease; and
(ii) take all reasonable steps to eliminate or
reduce the risk of any other person
25 contracting the infectious disease;
(d) a person who is at risk of contracting, has or
suspects he or she may have, an infectious
disease is entitled--
(i) to receive information about the
30 infectious disease and any appropriate
available treatment;
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and Medical Conditions
(ii) to have access to any appropriate
available treatment.
Division 2--Examination and testing orders and public
health orders
5 112 Least restrictive measure to be chosen
If in giving effect to this Division alternative
measures are available which are equally effective
in minimising the risk that a person poses to
public health, the measure which is the least
10 restrictive of the rights of the person should be
chosen.
113 Chief Health Officer may make examination and
testing order relating to infectious disease
(1) The Chief Health Officer may make an
15 examination and testing order if the Chief Health
Officer believes that--
(a) a person has an infectious disease or has
been exposed to an infectious disease in
circumstances where a person is likely to
20 contract the disease; and
(b) if infected with that infectious disease, the
person is likely to transmit that disease; and
(c) if infected with that infectious disease, a
serious risk to public health is constituted
25 by--
(i) the infectious disease; or
(ii) the combination of the infectious
disease and the likely behaviour of that
person; and
30 (d) the making of an order under this section is
necessary to ascertain whether the person has
the infectious disease; and
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and Medical Conditions
(e) a reasonable attempt has been made to
provide that person with information relating
to the effect of the infectious disease on the
person's health and the risk posed to public
5 health or it is not practicable to provide this
information before making the order.
(2) An examination and testing order must--
(a) be in writing;
(b) identify the person to whom the order
10 applies;
(c) specify the purpose of the order;
(d) specify the infectious disease which the
Chief Health Officer believes the person has
or has been exposed to;
15 (e) explain why the Chief Health Officer
believes that the person is infected with the
infectious disease or has been exposed to the
infectious disease in circumstances where a
person is likely to contract the infectious
20 disease;
(f) explain that if the person does not comply
with the order, the person commits an
offence and is liable to a penalty not
exceeding 60 penalty units.
25 (3) An examination and testing order may require the
person to whom the order applies to comply with
any of the following as specified in the order and
subject to any conditions that the Chief Health
Officer considers are appropriate--
30 (a) undergo one or more specified examinations
by a specified registered medical practitioner
within a specified period of time;
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and Medical Conditions
(b) undergo one or more specified tests by a
specified registered medical practitioner
within a specified period of time to ascertain
whether the person has the infectious
5 disease;
(c) if the person fails to undergo a specified
examination or test, the person is to be
detained, or detained in isolation, at a
specified place for the specified period not
10 exceeding 72 hours for the purpose of
undergoing the specified examination or test.
114 Provisions applying to examination and testing
orders
(1) An examination and testing order has effect from
15 the time that it is served on the person to whom it
applies.
(2) The Chief Health Officer must as soon as is
reasonably practicable provide a copy of an
examination and testing order to any registered
20 medical practitioner specified in the examination
and testing order.
(3) If a person is detained under an examination and
testing order, the period of the detention
commences when the person is in the physical
25 custody of the person who is taking that person to
the specified place of detention.
(4) If the Chief Health Officer ceases to believe that
any of the matters specified in section 113(1)
apply, the Chief Health Officer must--
30 (a) revoke the examination and testing order by
a written notice of revocation;
(b) serve a copy of the notice of revocation on
the person to whom the examination and
testing order applied;
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(c) provide a copy of the notice of revocation to
any registered medical practitioner specified
in the examination and testing order.
(5) The Chief Health Officer can only make a further
5 examination and testing order under section
113(1) providing for a person to be detained if the
Chief Health Officer is satisfied that since the
person was last detained there has been a change
in the person's health which constitutes a different
10 serious risk to public health.
115 Registered medical practitioner must provide
results
A registered medical practitioner who conducts an
examination or test on a person in accordance
15 with an examination and testing order must as
soon as is reasonably practicable provide written
results of the examination or test to--
(a) the Chief Health Officer; and
(b) the person on whom the examination or test
20 was conducted.
Note
See section 227.
116 Person must comply with an examination and
testing order
25 A person to whom an examination and testing
order applies must comply with the examination
and testing order.
Penalty: 60 penalty units.
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117 Chief Health Officer may make public health order
(1) The Chief Health Officer may, after having regard
to the factors specified in subsection (2), make a
public health order if the Chief Health Officer
5 believes that--
(a) a person has an infectious disease or has
been exposed to an infectious disease in
circumstances where a person is likely to
contract the disease; and
10 (b) if a person is infected with that infectious
disease, a serious risk to public health is
constituted by--
(i) the infectious disease; or
(ii) the combination of the infectious
15 disease and the likely behaviour of that
person; and
(c) if infected with that infectious disease, the
person needs to take particular action or
refrain from taking particular action to
20 prevent, as far as is reasonably possible, that
infectious disease constituting a serious risk
to public health; and
(d) a reasonable attempt has been made to
provide that person with information relating
25 to the effect of the infectious disease on the
person's health and the risk posed to public
health or it is not practicable to provide this
information before making the order; and
(e) it is necessary to make the public health
30 order to eliminate or reduce the risk of the
person causing a serious risk to public
health.
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(2) The factors are--
(a) the nature of the infectious disease, including
the ease with which it is transmitted;
(b) the availability and effectiveness of
5 treatment for the infectious disease;
(c) the possible side-effects and discomfort that
may be caused to the person who is or may
be infected with the infectious disease if he
or she is required to undergo specified
10 pharmacological treatment or prophylaxis for
the infectious disease;
(d) whether urgent action will significantly
affect the public health outcome;
(e) the capacity of the person who is or may be
15 infected with the infectious disease to
understand the risk to public health
constituted by the person having the
infectious disease;
(f) any prescribed factors;
20 (g) any other factors that the Chief Health
Officer considers are relevant in the
particular circumstances.
(3) A public health order must--
(a) be in writing;
25 (b) identify the person to whom the order
applies;
(c) specify the purpose of the order;
(d) specify the infectious disease which the
Chief Health Officer believes the person has
30 or has been exposed to;
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(e) explain why the Chief Health Officer
believes that the person is infected with the
infectious disease or has been exposed to the
infectious disease in circumstances where a
5 person is likely to contract the infectious
disease;
(f) subject to subsection (4), specify the period
for which the public health order continues
to have effect;
10 (g) explain the person's rights and entitlements
under this Act and the process for making an
application for review to VCAT;
(h) contain a statement that the person should
seek legal advice;
15 (i) explain that if the person does not comply
with the order, the person commits an
offence and is liable to a penalty not
exceeding 120 penalty units.
(4) The period for which a public health order
20 continues to have effect must--
(a) not exceed 6 months from the day on which
the order is made;
(b) be proportionate with the risk that the person
poses to public health.
25 (5) A public health order may require the person to
whom the public health order applies to comply
with any of the following as specified in the order
and subject to any specified conditions that the
Chief Health Officer considers are appropriate--
30 (a) participate in counselling, education or other
activities provided by a specified person or
specified class of person;
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(b) undergo an assessment by a specified
psychiatrist or specified neurologist;
(c) refrain from carrying out certain activities
either absolutely or unless specified
5 conditions are complied with;
(d) refrain from specified forms of behaviour
either absolutely or unless specified
conditions are complied with;
(e) refrain from visiting a specified place or
10 specified class of place;
(f) reside at a specified place of residence at all
times or during specified times;
(g) notify the Chief Health Officer or a person
nominated by the Chief Health Officer in
15 writing or in another specified form if the
person changes his or her name or place of
residence within 3 days of doing so;
(h) submit to the supervision of a person
nominated by the Chief Health Officer,
20 including--
(i) attending meetings arranged by that
person;
(ii) receiving visits from that person;
(iii) providing that person with information
25 relating to any action, occurrence or
plan relevant to the health risk posed by
the person to whom the order applies;
(i) receive specified prophylaxis, including a
specified vaccination, within the specified
30 period;
(j) undergo specified pharmacological treatment
for the infectious disease from a registered
medical practitioner;
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(k) submit to being detained or isolated or
detained and isolated as specified.
118 Provisions applying to public health orders
(1) A public health order has effect from the time that
5 it is served on the person to whom it applies.
(2) The Chief Health Officer must as soon as is
reasonably practicable provide a copy of a public
health order to any registered medical practitioner
or other registered health practitioner required to
10 perform any activity under the public health order.
(3) If the Chief Health Officer ceases to believe that
any of the matters specified in section 117(1)
apply, the Chief Health Officer must--
(a) revoke the public health order by a written
15 notice of revocation;
(b) serve a copy of the notice of revocation on
the person to whom the public health order
applied;
(c) provide as soon as is reasonably practicable a
20 copy of the notice of revocation to any
registered medical practitioner or other
registered health practitioner required to
perform any activity under the public health
order.
25 (4) If after having regard to the factors specified in
section 117(2) the Chief Health Officer believes
that it is necessary to vary a public health order,
the Chief Health Officer must--
(a) vary the public health order by a written
30 notice of variation;
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(b) serve a copy of the notice of variation on the
person to whom the public health order
applies;
(c) provide as soon as is reasonably practicable a
5 copy of the notice of variation to any
registered medical practitioner or other
registered health practitioner required to
perform any activity under the public health
order.
10 (5) If the Chief Health Officer believes that the
matters specified in section 117(1) continue to
apply, the Chief Health Officer must--
(a) extend the public health order by a written
notice of extension for a further period not
15 exceeding 6 months;
(b) serve a copy of the notice of extension on the
person to whom the public health order
applies;
(c) provide as soon as is reasonably practicable a
20 copy of the notice of extension to any
registered medical practitioner or other
registered health practitioner required to
perform any activity under the public health
order.
25 (6) A public health order may be extended as many
times as the Chief Health Officer considers to be
necessary.
(7) A notice of revocation, notice of variation or
notice of extension has effect from the time that it
30 is served on the person to whom it applies.
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119 Registered medical practitioner must provide
information requested by the Chief Health Officer
A registered medical practitioner who receives a
request in writing from the Chief Health Officer
5 for information in relation to a person for the
purpose of deciding whether to make, revoke,
vary or extend a public health order must as soon
as is reasonably practicable provide the requested
information in writing to the Chief Health Officer.
10 Note
See section 227.
120 Person must comply with a public health order
A person to whom a public health order applies
must comply with the public health order.
15 Penalty: 120 penalty units.
121 Application for review by Chief Health Officer
(1) A person subject to a public health order may at
any time while the order is in force apply to the
Chief Health Officer for a review of the order.
20 (2) An application for a review of a public health
order must be in writing or in any other form
approved by the Chief Health Officer.
(3) Within the period of 7 days after receiving the
application for review, the Chief Health Officer
25 must review the public health order and may--
(a) revoke the order; or
(b) vary the order; or
(c) confirm the order.
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122 Application for review by VCAT
A person subject to a public health order may at
any time while the order is in force apply to
VCAT for a review of the decision to make the
5 order.
Note
A person who is entitled to apply to VCAT for review of a
decision may, within 28 days after the day on which the decision is
made, request the decision-maker to give the person a written
10 statement of reasons for the decision.
123 Enforcement of orders
(1) Subject to this section, an authorised officer who
is a registered medical practitioner may enforce an
examination and testing order or a public health
15 order.
(2) A requirement in an examination and testing order
or a public health order that a person undergo any
examination, test, pharmacological treatment or
prophylaxis cannot be enforced by the use of
20 force.
(3) For the purposes of this section, an authorised
officer may request the assistance of a member of
the police force.
(4) A member of the police force may use reasonable
25 force to detain the person subject to an
examination and testing order or a public health
order and take that person to--
(a) a place where an examination and test is to
be carried out; or
30 (b) the place where the person is required to be
under the order.
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(5) For the purposes of this section if it appears to the
authorised officer that it is necessary to do so to
enforce an examination and testing order or a
public health order, the authorised officer may
5 apply to the Magistrates' Court for a warrant to
arrest the person who is subject to the order.
(6) If the Magistrates' Court is satisfied by evidence
on oath, whether orally or by affidavit, of the
matter specified in subsection (5), the Magistrates'
10 Court may order that a warrant to arrest be issued
against the person subject to the examination and
testing order or public health order.
(7) A warrant issued for the purpose of subsection (6)
may specify any conditions to which the warrant
15 is subject.
(8) A person who is arrested or detained under this
section must be informed at the time of the arrest
or detention of the reason why the person is being
arrested or detained.
20 Note
Section 183 provides that it is an offence to hinder or obstruct an
authorised officer.
124 No action lies against registered health practitioner
No action lies against a registered health
25 practitioner who in good faith and with reasonable
care--
(a) conducts a test, examination or assessment in
accordance with this Division; or
(b) provides counselling, pharmacological
30 treatment or prophylaxis authorised by this
Division.
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125 Chief Health Officer to facilitate reasonable request
for communication
The Chief Health Officer must facilitate any
reasonable request for communication made by a
5 person detained under an examination and testing
order or a public health order.
Division 3--Notifiable conditions and micro-organisms
126 Governor in Council may declare infectious diseases
and micro-organism to be notifiable
10 (1) The Governor in Council may by Order in
Council declare--
(a) an infectious disease to be a notifiable
condition;
(b) a micro-organism to be a notifiable micro-
15 organism.
(2) An Order in Council under this section--
(a) must specify--
(i) the details to be included with a
notification of a notifiable condition or
20 notifiable micro-organism;
(ii) the period within which a notification
of a notifiable condition or notifiable
micro-organism is to be made;
(iii) the manner in which a notification of a
25 notifiable condition or notifiable micro-
organism is to be made;
(b) has effect--
(i) throughout Victoria or in the areas of
Victoria specified in the Order in
30 Council;
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(ii) from the date that it is published in the
Government Gazette or any later date
specified in the Order in Council for the
period not exceeding 12 months
5 specified in the Order in Council;
(c) may vary in relation to notifications to be
made by registered medical practitioners and
notifications to be made by pathology
services.
10 (3) On or before the 6th sitting day after an Order in
Council made under this section is published in
the Government Gazette, the Minister must ensure
that a copy of the Order in Council is laid before
each House of the Parliament.
15 (4) A failure to comply with subsection (3) does not
affect the operation or effect of the Order in
Council but the Scrutiny of Acts and Regulations
Committee of the Parliament may report the
failure to each House of the Parliament.
20 (5) An Order in Council made under this section may
be disallowed in whole or in part by either House
of Parliament.
(6) Part 5 of the Subordinate Legislation Act 1994
applies to an Order in Council made under this
25 section as if--
(a) a reference in that Part to a "statutory rule"
were a reference to the Order in Council; and
(b) a reference in section 23(1)(c) of that Part to
"section 15(1)" were a reference to
30 subsection (3).
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127 Notification by registered medical practitioners of
notifiable conditions
(1) This section applies if a registered medical
practitioner has reasonable grounds to believe that
5 a patient--
(a) has, or may have, a notifiable condition; or
(b) has, or may have, died with a notifiable
condition.
(2) The registered medical practitioner must notify
10 the Secretary of the notification details in
accordance with--
(a) if the notifiable condition was prescribed to
be a notifiable condition by the regulations,
the regulations within the prescribed period;
15 or
(b) if the notifiable condition was declared to be
a notifiable condition by an Order in
Council, the Order in Council within the
specified period.
20 Penalty: 60 penalty units.
128 Notification by a pathology service of a notifiable
condition
(1) This section applies if--
(a) a pathology service situated in Victoria
25 performs a test in Victoria on a sample, or a
pathology service situated outside Victoria,
performs a test on a sample at the request of
a pathology service situated in Victoria; and
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(b) the sample was taken for any purpose from a
person--
(i) in Victoria; or
(ii) who the pathology service situated in
5 Victoria has reason to believe, on the
basis of the supplied address of the
person, has a permanent or temporary
postal address in Victoria; and
(c) the result of the test indicates that the person
10 has, or may have, a notifiable condition.
(2) The person in charge of the pathology service
situated in Victoria must notify the Secretary of
the notification details in accordance with--
(a) if the notifiable condition was prescribed to
15 be a notifiable condition by the regulations,
the regulations; or
(b) if the notifiable condition was declared to be
a notifiable condition by an Order in
Council, the Order in Council.
20 Penalty: 60 penalty units.
129 Health service and pathology service must have
processes to ensure notification
(1) A health service must implement processes to
ensure that any registered medical practitioner
25 employed or engaged by, or performing work at,
the health service complies with section 127.
(2) A pathology service must implement processes to
ensure that the person in charge of the pathology
service complies with section 128.
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130 Notification of a notifiable micro-organism in food
(1) Subject to subsection (3), subsection (2) applies to
a person in charge of a laboratory service situated
within Victoria where a notifiable micro-organism
5 is--
(a) isolated or detected by that laboratory
service from or within food or from or within
samples taken from food, regardless of
where the sample was taken; or
10 (b) isolated or detected on behalf of that person
by another laboratory service situated outside
Victoria from or within food or from or
within samples taken from food, regardless
of where the sample was taken.
15 (2) The person in charge of the laboratory service
must notify the Secretary of the notification
details in accordance with--
(a) if the notifiable micro-organism was
prescribed to be a notifiable micro-organism
20 by the regulations, the regulations; or
(b) if the notifiable micro-organism was
declared to be a notifiable micro-organism in
an Order in Council, the Order in Council.
Penalty: 60 penalty units.
25 (3) Subsection (2) does not apply if the notifiable
micro-organism is isolated or detected in the
course of a test carried out only for--
(a) educational purposes; or
(b) the purpose of academic research.
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(4) Subsection (5) applies if the proprietor of a food
premises or food vending machine in Victoria is
informed at any time by the person in charge of a
laboratory service whether situated inside or
5 outside Victoria that--
(a) a sample of food handled by that proprietor
has been tested by that laboratory; and
(b) the test conducted by the laboratory has
isolated or detected a notifiable micro-
10 organism in the food sample.
(5) The proprietor of the food premises or food
vending machine must notify the Secretary of the
notification details in accordance with--
(a) if the notifiable micro-organism was
15 prescribed to be a notifiable micro-organism
by the regulations, the regulations; or
(b) if the notifiable micro-organism was
declared to be a notifiable micro-organism in
an Order in Council, the Order in Council.
20 Penalty: 60 penalty units.
(6) In this section, food includes--
(a) any substance or thing of a kind used for, or
represented as being for the use of, human
consumption, whether it is raw, prepared or
25 partly prepared;
(b) any substance or thing of a kind used, or
represented as being for use, as an ingredient
or additive in a substance or thing referred to
in paragraph (a);
30 (c) any substance used in preparing a substance
or thing referred to in paragraph (a), other
than a substance used in preparing a living
thing, if it comes into direct contact with the
substance or thing referred to in that
35 paragraph, such as a processing aid;
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(d) chewing gum or an ingredient or additive in
chewing gum, or any substance used in
preparing chewing gum;
(e) any substance or thing declared to be a food
5 under a declaration in force under section 3B
of the Australia New Zealand Food
Authority Act 1991 of the Commonwealth.
(7) A substance, thing, chewing gum or ingredient or
additive in chewing gum described in subsection
10 (6) is food regardless of whether or not it is in a
condition fit for human consumption.
(8) However, food does not include therapeutic goods
or live animals.
(9) In this section--
15 food premises, food vending machine and
handled have the same meanings
respectively as in section 4(1) of the Food
Act 1984;
laboratory service means a service which
20 performs tests or analyses on food or
samples of food for the purpose of isolating
or detecting micro-organisms in the food or a
sample of food.
Division 4--HIV and other prescribed diseases
25 131 Information to be given to a person requesting a test
for HIV or any other prescribed disease
(1) A registered medical practitioner must not carry
out or authorise the carrying out of a test for HIV
or any other prescribed disease on a person who
30 has requested the test unless the registered
medical practitioner is satisfied that the person has
been given the prescribed information in
accordance with the regulations.
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(2) Subsection (1) does not apply to the authorising or
carrying out of a test for HIV or any other
prescribed disease by a pathologist if the
pathologist authorises or carries out the test on the
5 authority of another registered medical
practitioner.
132 Information to be provided if results of test are
positive
A registered medical practitioner or person of a
10 prescribed class must not advise a person who
requested a test for HIV or any other prescribed
disease of the results of the test if the results of the
test are positive unless the registered medical
practitioner or person of a prescribed class is
15 satisfied that the prescribed information has been
given in accordance with the regulations.
Note
The Health Records Act 2001 applies to and in respect of the
privacy of information acquired about a person requesting a test.
20 133 Closure of court or tribunal
(1) This section applies if--
(a) evidence is proposed to be given in a matter
before a court or tribunal of any matter
relating to HIV or any other prescribed
25 disease; and
(b) the court or tribunal considers that, because
of the social or economic consequences to a
person if the information is disclosed, the
court or tribunal should make an order under
30 this section.
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(2) If this section applies, the court or tribunal may--
(a) order that the whole or any part of the
proceedings be heard in closed session; or
(b) order that only persons specified by it may
5 be present during the whole or any part of
the proceedings; or
(c) make an order prohibiting the publication of
a report of the whole or any part of the
proceedings or of any information derived
10 from the proceedings.
(3) The powers specified in subsection (2) are in
addition to any other powers the court or tribunal
may have.
(4) If an order has been made under this section, the
15 court or tribunal must cause a copy of it to be
posted on a door of, or in another conspicuous
place at, the place at which the court or tribunal is
being held.
(5) A person must not contravene an order made and
20 posted under this section.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
25 Division 5--Orders for tests if incident has occurred
134 Orders for tests if incident has occurred
(1) Subject to subsection (11), the Chief Health
Officer may make an order under this section if
the Chief Health Officer believes that--
30 (a) an incident has occurred, while a caregiver
or custodian is acting in their capacity as a
caregiver or custodian, in which, if any of
those involved in the incident were infected
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with a specified infectious disease, the
disease could have been transmitted to any of
the other persons involved; and
(b) any of those persons to whom the disease
5 could have been transmitted--
(i) has been counselled by a person of a
prescribed class about the risk of
transmission of the disease in the
particular circumstances and about the
10 medical and social consequences of
being infected with the disease; and
(ii) has consented to be tested for that
disease; and
(c) any of those persons who, if he or she were
15 infected with the disease, could have
transmitted it--
(i) has been offered counselling,
irrespective of whether the offer was
accepted, and has refused to be tested
20 for the disease; or
(ii) is unconscious or otherwise does not
have the capacity to consent to be
tested for the disease; and
(d) the making of the order is necessary in the
25 interest of rapid diagnosis and clinical
management and, where appropriate,
treatment for any of those involved.
(2) An order made under this section--
(a) must be in writing;
30 (b) must give details of the incident which led to
its making;
(c) must name the person to whom it applies;
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(d) must name the disease for which the person
must be tested, which must be a disease for
which another person has agreed to be tested
under subsection (1)(b);
5 (e) must require that the person named in the
order give a sample of blood or urine or
submit to a sample of blood or urine being
taken;
(f) must specify the place where the person
10 named in the order is required to give a
sample of blood or urine or submit to a
sample of blood or urine being taken;
(g) has effect from the time that it is served on
the person named in the order or, if the order
15 is made in respect of a person who is dead,
from the time that the order is made.
(3) If the Chief Health Officer believes that it is
necessary to do so to enforce an order made under
this section, the Chief Health Officer may apply to
20 the Magistrates' Court for an order to authorise a
member of the police force to use reasonable force
to--
(a) take the person named in the order to the
place specified in the order; or
25 (b) restrain the person named in the order so as
to enable a registered medical practitioner to
take a sample of blood or urine; or
(c) take the person named in the order to the
place specified in the order and restrain the
30 person named in the order so as to enable a
registered medical practitioner to take a
sample of blood or urine.
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(4) If the Magistrates' Court is satisfied by evidence
on oath, whether orally or by affidavit, that the
circumstances are so exceptional that the making
of the order is justified, the Magistrates' Court
5 may make the order applied for by the Chief
Health Officer subject to any conditions that the
Magistrates' Court considers are appropriate.
(5) The Chief Health Officer may also make an order
under this section in respect of a person who is
10 dead if the Chief Health Officer believes
subsections (1)(a), (1)(b) and (1)(d) apply.
(6) For the purposes of this section, a person is to be
treated as not having the capacity to consent to be
tested even if--
15 (a) the lack of capacity is due to a temporary
cause; or
(b) there is another person who has the capacity
to consent to testing on that person's behalf.
(7) An order must not be made under this section if
20 more than 1 month has passed since the happening
of the incident which would enable the order to be
made.
(8) The Chief Health Officer may make an order
under this section subject to any conditions the
25 Chief Health Officer considers appropriate.
(9) The Chief Health Officer may vary or revoke an
order made under this section.
(10) In this section, caregiver or custodian means--
(a) a person who is employed or engaged by, or
30 performs work at, a health service;
(b) a registered medical practitioner;
(c) a dental practitioner or a nurse practitioner
registered under the Health Professions
Registration Act 2005;
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(d) a student who is registered under the Health
Professions Registration Act 2005 by the
Medical Practitioners Board of Victoria, the
Dental Practice Board of Victoria or the
5 Nurses Board of Victoria;
(e) an ambulance officer or paramedic;
(f) a person who is employed or engaged by, or
performs work at, a pathology service;
(g) a person who--
10 (i) removes human tissue from a person,
whether alive or dead; or
(ii) handles human tissue--
in accordance with the Human Tissue
Act 1982;
15 (h) a person who carries out an activity of a kind
referred to in section 42(1) of the Human
Tissue Act 1982;
(i) a legal custodian of a person who is in legal
or protective custody and any person who is
20 employed or engaged by the legal custodian
in the course of keeping that person in legal
or protective custody;
(j) a member of the police force;
(k) a person who is prescribed to be a caregiver
25 or custodian for the purposes of this section.
(11) If in giving effect to this Division alternative
measures are available which are equally effective
in ensuring the rapid diagnosis and clinical
management for any person affected, the measure
30 which is the least restrictive of the rights of the
person should be chosen.
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135 Authorisation for tests
(1) This section applies if--
(a) the Chief Health Officer could make an order
in respect of a person under section 134; and
5 (b) a sample of blood or urine from that person
has been stored at any place for any purpose;
and
(c) the Chief Health Officer is satisfied that, if
the sample of blood or urine was authorised
10 to be tested and was tested under this section,
it could still be used for the purpose for
which it was originally stored.
(2) If this section applies, the Chief Health Officer
may authorise the testing of the sample of blood
15 or urine for any disease for which the Chief
Health Officer could order the person to be tested
under section 134.
(3) Sections 134(2), 134(7), 134(8) and 134(9) apply
to an authorisation as if it were an order made
20 under section 134.
136 Chief Health Officer may disclose certain
information
(1) If the Chief Health Officer believes that the
circumstances exist for the making of an order
25 under section 134 in respect of a person, the Chief
Health Officer may--
(a) examine any relevant health information held
by the Department relating to that person; or
(b) require a health service provider to provide
30 to the Chief Health Officer any relevant
health information held by the health service
provider relating to that person.
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(2) A health service provider must comply with a
requirement under subsection (1)(b).
Note
See section 227.
5 (3) The Chief Health Officer can only use relevant
health information obtained under subsection (1)
for the purposes of this Division.
(4) Without limiting subsection (3), the Chief Health
Officer may, subject to the following conditions,
10 disclose relevant health information obtained
under subsection (1) to a person to whom section
134(1)(b) applies--
(a) the information must only be disclosed to the
extent necessary in the interest of rapid
15 diagnosis and clinical management and,
where appropriate, treatment for that person;
and
(b) the information disclosed must not include
information that would identify the person to
20 whom the relevant health information
relates; and
(c) the person to whom the information is
disclosed must not disclose, communicate, or
make a record of, anything that would
25 identify the person to whom the relevant
health information relates; and
(d) the information is not admissible in any
action or proceedings before any court or
tribunal or any board, agency or other
30 person.
(5) A person who contravenes subsection (4)(c) is
guilty of an offence.
Penalty: 60 penalty units.
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137 Orders and authorisations for tests by senior
medical officer
(1) Subject to subsection (2), this section only applies
to a senior medical officer who is--
5 (a) employed or engaged by, or performs work
for, a denominational hospital, multi purpose
service or public hospital and is authorised
by that hospital or service or the chief
executive officer of that hospital or service to
10 make orders or authorise testing for the
purposes of this section; or
(b) employed or engaged by, or performs work
for, a private hospital that is--
(i) registered under Part 4 of the Health
15 Services Act 1988; and
(ii) approved by the Secretary for the
purposes of this section--
and is authorised by the proprietor or chief
executive officer of that private hospital to
20 make orders or authorise testing for the
purposes of this section.
(2) For the purposes of this section--
(a) the Director of the Victorian Institute of
Forensic Medicine appointed under
25 section 68 of the Coroners Act 1985 is a
senior medical officer; and
(b) the Director of the Victorian Institute of
Forensic Medicine may authorise a senior
medical officer employed or engaged by the
30 Victorian Institute of Forensic Medicine to
make orders or authorise testing for the
purposes of this section.
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(3) A senior medical officer has all the powers that
the Chief Health Officer has to--
(a) make an order under section 134 in the
circumstances specified in section
5 134(1)(c)(ii) or 134(5); or
(b) authorise testing under section 135 in the
circumstances specified in section
134(1)(c)(ii) or 134(5)--
in relation to the health service where the senior
10 medical officer is employed or engaged or
performs work.
(4) This Division applies to--
(a) an order made by a senior medical officer
and a test made under such an order as if the
15 order were an order made by the Chief
Health Officer under section 134; and
(b) an authorisation made by a senior medical
officer and a test made under such an
authorisation as if the authorisation were an
20 authorisation made by the Chief Health
Officer under section 135.
(5) Despite subsection (4), sections 134(3) and 134(4)
do not apply to an order made by a senior medical
officer.
25 138 Post test or authorisation counselling
(1) A person who--
(a) made an order in the circumstances specified
in section 134(1)(c)(ii) or 134(5); or
(b) authorised the testing of a sample of blood or
30 urine under section 135 in the circumstances
specified in section 134(1)(c)(ii) or 134(5)--
must ensure that the relevant person is counselled
by a registered medical practitioner in accordance
with this section.
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(2) The person tested or whose sample of blood or
urine was tested must be counselled as soon as is
practicable if the person has regained capacity to
consent to testing after the testing.
5 (3) If the person tested under the order or whose
sample of blood or urine was tested under an
authorisation is dead or does not have or regain
capacity to consent to testing, the person who
made the order or gave the authorisation must
10 ensure that the following are counselled by a
registered medical practitioner--
(a) in the case of a child, a parent; and
(b) in any other case, any person responsible
under the Guardianship and
15 Administration Act 1986 for the person
tested.
(4) The person counselled must be provided with--
(a) details of the test conducted;
(b) the reasons why the test was conducted;
20 (c) the results of the test;
(d) if the test indicated the presence of an
infectious disease--
(i) the effects of the infectious disease on
an infected person; and
25 (ii) the risk to public health of the
infectious disease.
139 Tests and test results
(1) A pathologist or registered medical practitioner
who conducts a test under an order or
30 authorisation--
(a) of the Chief Health Officer under this
Division must without delay report the test
results to the Chief Health Officer;
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(b) of an authorised senior medical officer under
this Division must without delay report the
test results to the authorised senior medical
officer.
5 (2) On receiving the test results, the Chief Health
Officer or authorised senior medical officer must
without delay give notice of the test results to--
(a) the appropriate person mentioned in section
134(1)(b); and
10 (b) the person tested.
(3) A pathologist or registered medical practitioner
who conducts a test on a person mentioned in
section 134(1)(b) in relation to an order or
authorisation--
15 (a) of the Chief Health Officer under this
Division must without delay report the test
results to the Chief Health Officer;
(b) of an authorised senior medical officer under
this Division must without delay report the
20 test results to the authorised senior medical
officer.
(4) If the test results are positive, the Chief Health
Officer or authorised senior medical officer must
without delay give notice of the test results to--
25 (a) any other person involved in the incident to
whom the infectious disease could have been
transmitted; and
(b) the person tested.
(5) Test results referred to in this section are not
30 admissible in any action or proceedings before
any court or tribunal or any board, agency or other
person.
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140 No identification to be given
(1) A person mentioned in section 134(1)(a) who
receives notice under this Division of the results
of a test on another person must not disclose,
5 communicate, or make a record of, anything in
those results that would identify that other person.
Penalty: 60 penalty units.
(2) When advising a person mentioned in section
134(1)(a) of the results of a test under this
10 Division, the Chief Health Officer or authorised
senior medical officer must not include
information that would identify the person tested.
141 Directions about orders or authorisations
(1) The Chief Health Officer may give directions to a
15 hospital, multi purpose service, proprietor,
Director of the Victorian Institute of Forensic
Medicine or an authorised senior medical officer
referred to in section 137(1) or 137(2) about the
following--
20 (a) the requirements for persons suitable to be
authorised as a senior medical officer for the
purposes of making orders or authorisations
under this Division;
(b) the process for authorising a person to be a
25 senior medical officer for the purposes of
making orders or authorisations under this
Division;
(c) the information to be provided by the
hospital, multi purpose service, proprietor or
30 the Director of the Victorian Institute of
Forensic Medicine to the authorised senior
medical officer;
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(d) the matters that an authorised senior medical
officer must take into account in deciding
whether to make an order or authorisation
under this Division;
5 (e) the procedures to be followed by an
authorised senior medical officer before or
after making an order or authorisation under
this Division;
(f) the requirements to be complied with by an
10 authorised senior medical officer about the
keeping of records and reporting to the
hospital, multi purpose service, proprietor,
Director of the Victorian Institute of
Forensic Medicine or Chief Health Officer;
15 (g) the provision of counselling or information
required by section 138.
(2) The hospital, multi purpose service, proprietor,
Director of the Victorian Institute of Forensic
Medicine or authorised senior medical officer
20 must comply with any direction given by the
Chief Health Officer under this section.
142 No action lies against registered medical
practitioner
No action lies against a registered medical
25 practitioner who in good faith and with reasonable
care--
(a) takes a sample of blood or urine from a
person in accordance with this Division; or
(b) conducts a test in accordance with this
30 Division; or
(c) provides information about test results or
counselling authorised by this Division.
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Division 6--Reporting requirements
143 Annual report to include information about orders
(1) The Chief Health Officer must include
information about--
5 (a) the number of orders made by the Chief
Health Officer under each of section 113,
117 and 134;
(b) the reasons for the making of those orders--
during the financial year in the relevant annual
10 report of operations under Part 7 of the Financial
Management Act 1994.
(2) The information included in the annual report
under subsection (1) must not include any
information that identifies, or is likely to lead to
15 the identification of, any person.
Division 7--Immunisation
144 Application of sections 145 and 146
Sections 145 and 146 apply in relation to any
child that is to attend a primary school.
20 145 Immunisation status certificates to be produced
before attendance at primary school
The parent of a child must give an immunisation
status certificate in respect of each vaccine-
preventable disease to the person in charge of
25 each primary school that the child is to attend.
146 Obligations of person in charge of primary school
(1) A person in charge of a primary school must take
reasonable steps to obtain an immunisation status
certificate in respect of each child attending the
30 primary school.
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(2) A person in charge of a primary school must take
reasonable steps to ensure that the student
immunisation record in respect of each child
attending the primary school is kept up to date.
5 147 Immunisation status certificate
(1) An immunisation status certificate is a
document--
(a) which is provided to a parent of a child under
section 46E(1)(c) of the Health Insurance
10 Act 1973 of the Commonwealth; or
(b) which is issued by--
(i) a person authorised to do so by a
Council; or
(ii) a person who is a recognised
15 immunisation provider within the
meaning of section 46A of the Health
Insurance Act 1973 of the
Commonwealth; or
(iii) a person who is prescribed to be a
20 prescribed person for the purposes of
this section--
which certifies that the person issuing the
document has been given the evidence
required by subsection (2) in respect of each
25 vaccine-preventable disease; or
(c) which is a document which is prescribed to
be a prescribed document for the purposes of
this section.
(2) The evidence required is one of the following--
30 (a) evidence as to whether or not the child has
been immunised against the vaccine-
preventable disease;
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(b) laboratory evidence that the child has
developed a natural immunity against the
vaccine-preventable disease and does not
require immunisation;
5 (c) a statutory declaration made by a parent
declaring that the parent believes that the
child has been immunised against the
vaccine-preventable disease;
(d) evidence of a kind which is prescribed for
10 the purposes of this section.
148 Issuing of immunisation status certificate
(1) A person authorised to do so by a Council may
issue an immunisation status certificate to a parent
of a child if--
15 (a) the parent produces for each vaccine-
preventable disease evidence of the kind
required by section 147(2); and
(b) the child--
(i) resides in the municipal district of the
20 Council; or
(ii) attends or proposes to attend a primary
school located in the municipal district
of the Council.
(2) A person who is--
25 (a) a recognised immunisation provider within
the meaning of section 46A of the Health
Insurance Act 1973 of the Commonwealth;
or
(b) prescribed to be a prescribed person for the
30 purposes of section 147--
may issue an immunisation status certificate to a
parent of a child if the parent produces for each
vaccine-preventable disease evidence of the kind
required by section 147(2).
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149 Effect of immunisation status certificate
A person in charge of a primary school may rely
on statements in an immunisation status
certificate.
5 Division 8--Blood and tissue donations
150 Application
(1) This Division applies in respect of any
proceedings in an action referred to in section 151
or 152 commenced on or after the day on which
10 this section comes into operation.
Note
See section 244 for transitional provisions that relate to
proceedings.
(2) Sections 154 and 155 apply in respect of any
15 donation of blood or tissue in relation to which the
donor signs a statement on or after the day on
which this section comes into operation.
151 Blood donations
(1) This section applies to an action brought in tort, in
20 contract, under statute or otherwise by or on
behalf of--
(a) a person who claims--
(i) to have been infected with HIV,
Hepatitis C or a prescribed disease
25 because he or she was given, or in any
way dealt with, blood supplied by the
Society or a health service or a blood
product derived from blood so
supplied; or
30 (ii) to have been infected with HIV,
Hepatitis C or a prescribed disease by
another person who was given, or in
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any way dealt with, any such blood or
blood product; or
(b) a dependant or the estate of a person who
died as a result of having been infected with
5 HIV, Hepatitis C or a prescribed disease as
specified in paragraph (a).
(2) If a person is found liable in an action brought by
a person, or on behalf of the estate, referred to in
subsection (1) for damage, this section also
10 applies to an action brought by the person found
liable to recover contribution from any other
person liable in respect of that same damage.
(3) Subject to subsection (4), in an action to which
this section applies brought against a person
15 specified in column 1 of an item in Table 1 in the
Schedule, it is a defence to prove the facts or
matters specified in column 2 of that Table unless
any of the facts or circumstances mentioned in
column 3 of that Table apply.
20 (4) If a person specified in column 1 of an item in
Table 1 in the Schedule cannot prove a fact or
matter specified in column 2 of that Table, the
person can still rely on the relevant defence in
column 2 of the Table if the person can prove that,
25 in respect of that fact or matter, the failure to
comply did not cause the relevant loss.
152 Tissue donations
(1) This section applies to an action brought in tort, in
contract, under statute or otherwise by or on
30 behalf of--
(a) a person who claims--
(i) to have been infected with HIV,
Hepatitis C or a prescribed disease
because he or she received tissue (other
35 than semen) taken from a person or the
body of a dead person; or
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(ii) to have been infected with HIV,
Hepatitis C or a prescribed disease by
another person who received such
tissue; or
5 (b) a person who claims--
(i) to have been infected with HIV,
Hepatitis C or a prescribed disease as a
result of the carrying out in relation to
the person of artificial insemination or a
10 fertilisation procedure within the
meaning of the Infertility Treatment
Act 1995; or
(ii) to have been infected with HIV,
Hepatitis C or a prescribed disease by
15 another person in relation to whom
such a procedure was carried out; or
(c) a dependant or the estate of a person who
died as a result of having been infected with
HIV, Hepatitis C or a prescribed disease as
20 specified in paragraph (a) or (b).
(2) If a person is found liable in an action brought by
a person, or on behalf of the estate, referred to in
subsection (1) for damage, this section also
applies to an action brought by the person found
25 liable to recover contribution from any other
person liable in respect of that same damage.
(3) Subject to subsection (4), in an action to which
this section applies brought against a person
specified in column 1 of Table 2 in the Schedule,
30 it is a defence to prove the facts or matters
specified in column 2 of that Table unless any of
the facts or circumstances mentioned in column 3
of that Table apply.
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(4) If a person specified in column 1 in Table 2 in the
Schedule cannot prove a fact or matter specified
in column 2 of that Table, the person can still rely
on the relevant defence in column 2 of the Table if
5 the person can prove that, in respect of that fact or
matter, failure to comply did not cause the
relevant loss.
153 Evidentiary
In an action to which section 151 or 152 applies, a
10 certificate purporting to have been issued at the
laboratory at which a sample of blood was tested
stating--
(a) that the sample was tested in a manner
approved by the Secretary and published in
15 the Government Gazette; and
(b) that the results of the test were as stated in
the certificate--
is proof of the matters so stated and of the facts on
which they are based.
20 154 Liability of donors
(1) No civil or criminal proceedings, other than
proceedings under section 155(1), lie against a
donor of blood or tissue by reason only of a
person having been infected with HIV,
25 Hepatitis C or a prescribed disease by the
administration to, or the use by, the person of
blood given by, or of a blood product derived
wholly or partly from blood given by, the donor or
by the transplanting of tissue or the use of semen
30 or ova given by the donor.
(2) Subsection (1) does not apply in relation to a
donor who has been found guilty of an offence
against section 155(1).
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155 False statements
(1) A donor must not, in a statement referred to in the
Schedule, knowingly make a statement that is
false in a material particular.
5 Penalty: 120 penalty units or imprisonment for
1 year.
(2) A person must not, in response to an inquiry of the
kind referred to in paragraph (b)(iii) in column 2
of Table 2 in the Schedule, knowingly make a
10 statement that is false in a material particular.
Penalty: 120 penalty units.
Division 9--Autopsies
156 Autopsies
(1) The Chief Health Officer may require a registered
15 medical practitioner who has qualifications or
experience that the Chief Health Officer considers
appropriate to carry out an autopsy on a body if--
(a) the Chief Health Officer believes that--
(i) an infectious disease caused, may have
20 caused, or contributed to, the person's
death; and
(ii) an autopsy is necessary to determine
whether there is a serious risk to public
health; and
25 (b) the State Coroner does not have jurisdiction
over the body.
(2) Before an autopsy is carried out, the Chief Health
Officer must comply with section 157.
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(3) For the purposes of carrying out an autopsy under
this section, the Chief Health Officer may order
the person who has possession of the body to give
possession of that body to the registered medical
5 practitioner.
(4) A person who has possession of a body must
comply with an order of the Chief Health Officer
under this section.
Penalty: 10 penalty units.
10 157 Notice of and objection to autopsy
(1) The Chief Health Officer must immediately give
notice in writing of the decision to perform an
autopsy to the senior next of kin of the deceased.
(2) Unless the Chief Health Officer believes that an
15 autopsy must be performed immediately, the
autopsy must not be performed until 48 hours
after the senior next of kin has been given notice
of the decision.
(3) Within 48 hours after the senior next of kin has
20 been given notice of the decision, the senior next
of kin may apply to the Supreme Court for an
order that no autopsy be performed.
(4) The Supreme Court may make an order that no
autopsy be performed if the Supreme Court is
25 satisfied that an autopsy should not be performed
in the circumstances.
(5) In this section, senior next of kin in relation to a
deceased person, has the same meaning as in
section 29 of the Coroners Act 1985.
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Division 10--Brothels and escort agencies
158 Provision and storage of condoms
(1) A brothel proprietor must provide, in the brothel,
a free supply of condoms and water based
5 lubricant that is--
(a) readily accessible by sex workers and
clients; and
(b) of a sufficient quantity and amount for sex
workers and clients.
10 Penalty: 60 penalty units.
(2) A brothel proprietor must--
(a) store unused condoms in conditions which
will not lead to a deterioration of their
quality; and
15 (b) dispose of unused condoms at their expiry
date.
Penalty: 60 penalty units.
(3) A brothel proprietor must take reasonable steps to
ensure that used condoms are kept in sealed
20 containers prior to their removal from the brothel.
Penalty: 60 penalty units.
159 Use of condoms
(1) A brothel proprietor must take reasonable steps to
ensure that a client and a sex worker use condoms
25 in any encounter in a brothel between a client and
a sex worker which involves vaginal, oral or anal
penetration whether by means of a penis or other
part of the body or by a device or object.
Penalty: 60 penalty units.
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(2) A brothel proprietor must not expressly or
impliedly discourage the use of condoms in the
brothel.
Penalty: 60 penalty units.
5 (3) An escort agency proprietor must take reasonable
steps to ensure that a client and a sex worker use
condoms in any encounter arranged through the
escort agency between a client and a sex worker
which involves vaginal, oral or anal penetration
10 whether by means of a penis or other part of the
body or by a device or object.
Penalty: 60 penalty units.
(4) An escort agency proprietor must not expressly or
impliedly discourage the use of condoms in any
15 encounter arranged through the escort agency.
Penalty: 60 penalty units.
160 Refusal of service
(1) A brothel proprietor must not require a sex worker
to provide a service to a client if the sex worker
20 has refused to provide the service because--
(a) the sex worker suspects that the client is
infected with an infectious disease; or
(b) the client has refused to use a condom.
Penalty: In the case of a natural person,
25 120 penalty units;
In the case of a body corporate,
600 penalty units.
(2) An escort agency proprietor must not require a sex
worker to provide a service to a client if the sex
30 worker has refused to provide the service
because--
(a) the sex worker suspects that the client is
infected with an infectious disease; or
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and Medical Conditions
(b) the client has refused to use a condom.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
5 600 penalty units.
161 Evidence of medical examination
(1) A brothel proprietor must take reasonable steps to
ensure that written or oral evidence of the sex
worker's attendance at a medical examination or
10 the results of that examination is not displayed or
used to induce a client to believe that a sex worker
is free from infection with an infectious disease.
Penalty: 60 penalty units.
(2) An escort agency proprietor must take reasonable
15 steps to ensure that written or oral evidence of the
sex worker's attendance at a medical examination
or the results of that examination is not displayed
or used to induce a client to believe that a sex
worker is free from infection with an infectious
20 disease.
Penalty: 60 penalty units.
162 Information to sex workers and clients
(1) A brothel proprietor must provide easily
accessible written information about the
25 transmission of sexually transmitted infections in
a variety of relevant languages at the brothel for
the benefit of sex workers and clients.
Penalty: 10 penalty units.
(2) A brothel proprietor must take reasonable steps to
30 ensure that any information about sexually
transmitted infections provided at the brothel for
the benefit of sex workers or clients is medically
accurate.
Penalty: 10 penalty units.
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and Medical Conditions
(3) If a sex worker has difficulty in communicating in
the English language, the brothel proprietor must
provide the information in a language with which
the sex worker is familiar.
5 Penalty: 10 penalty units.
(4) An escort agency proprietor must, in accordance
with the regulations, provide easily accessible
written information about the transmission of
sexually transmitted infections in a variety of
10 relevant languages for the benefit of sex workers
and clients.
Penalty: 10 penalty units.
(5) An escort agency proprietor must take reasonable
steps to ensure that any information about
15 sexually transmitted infections provided by the
escort agency for the benefit of sex workers or
clients is medically accurate.
Penalty: 10 penalty units.
(6) If a sex worker has difficulty in communicating in
20 the English language, the escort agency proprietor
must provide the information in a language with
which the sex worker is familiar.
Penalty: 10 penalty units.
163 Clean linen and towels
25 A brothel proprietor must provide--
(a) clean linen; and
(b) clean towels--
for the use of each client.
Penalty: 10 penalty units.
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and Medical Conditions
164 Showers and baths
(1) A brothel proprietor must provide baths or
showers with a continuous and adequate supply of
hot and cold water for the use of clients and sex
5 workers.
Penalty: 10 penalty units.
(2) The brothel proprietor must ensure that baths and
showers are cleaned and disinfected after each
use.
10 Penalty: 10 penalty units.
165 Inspections and interviews
(1) The Secretary must ensure that each brothel in
respect of which a licence is in force under Part 3
of the Prostitution Control Act 1994 is inspected
15 at least once in every 12 months by an authorised
officer.
(2) At the request of an authorised officer, a brothel
proprietor must allow the authorised officer to
interview sex workers on the brothel premises
20 without the brothel proprietor being present.
Penalty: 60 penalty units.
(3) In this section, authorised officer means an
authorised officer appointed by the Secretary
under section 30 whose appointment includes the
25 power to conduct inspections and interviews
under this section.
__________________
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Part 9--Authorised Officers
s. 166
PART 9--AUTHORISED OFFICERS
Division 1--General
166 Production of identity card
(1) An authorised officer must produce their identity
5 card for inspection before exercising a power
under this Act or the regulations.
(2) However, if it is impracticable for an authorised
officer to produce their identity card for inspection
when exercising a power under this Act or the
10 regulations, the authorised officer need not do so.
(3) An authorised officer must produce their identity
card for inspection if asked to do so by the
occupier of any premises during the exercise of a
power under this Act or the regulations.
15 (4) If an authorised officer does not comply with a
request under subsection (3), the authorised
officer must immediately cease exercising the
power under this Act or the regulations.
167 Power to request information
20 (1) An authorised officer may request a person to
provide information to the authorised officer
which the authorised officer believes is necessary
to investigate whether there is a risk to public
health or to manage or control a risk to public
25 health.
(2) A person is authorised to provide the information
requested under subsection (1).
Note
See section 227.
30 (3) A person may refuse to provide the information
requested under subsection (1).
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(4) An authorised officer must at the time of making a
request under subsection (1) advise the person that
the person may refuse to provide the information
requested.
5 Division 2--Powers of entry
168 Power to enter--risk to public health
(1) An authorised officer may for the purpose of
investigating whether there is a risk to public
health or to manage or control a risk to public
10 health--
(a) enter a public place; or
(b) with the consent of the occupier, enter any
other premises including any residential
premises.
15 (2) For the purposes of subsection (1)(b), an
authorised officer may in seeking to obtain the
consent of the occupier--
(a) enter land around the premises to the extent
that it is reasonable to do so for the purpose
20 of contacting the occupier; or
(b) enter a part of the premises which the
authorised officer considers can be entered
by a member of the public for the purpose of
contacting the occupier.
25 (3) An authorised officer who enters a public place or
any other premises in accordance with subsection
(1) may exercise any of the powers specified in
section 175.
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(4) For the purposes of this section, public place
means a place, or part of a place, that--
(a) the public is entitled to use; or
(b) is open to members of the public; or
5 (c) is used by the public--
whether or not on the payment of any money.
169 Power to enter--monitoring compliance or
investigating
(1) For the purposes of monitoring compliance with
10 this Act or the regulations and investigating a
possible contravention of this Act or the
regulations, an authorised officer may enter
without a warrant, at any reasonable hour in the
daytime or any time that the premises are open to
15 the public, any premises that an authorised officer
believes is--
(a) used for the provision of prescribed
accommodation; or
(b) used for conducting a business specified in
20 section 68; or
(c) land on which there is a cooling tower
system; or
(d) used for the business of a pest control
operator; or
25 (e) used for conducting a brothel or escort
agency; or
(f) used for the provision of services by a health
service provider.
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(2) In relation to any possible contravention of the
Act or the regulations, an authorised officer may,
without a warrant, enter any premises at any time
if--
5 (a) the authorised officer believes on reasonable
grounds that there may be an immediate risk
to public health; and
(b) the entry is necessary to enable the
authorised officer to investigate, eliminate or
10 reduce the risk.
(3) An authorised officer may enter any premises at
any time--
(a) for the purposes of monitoring compliance
with this Act or the regulations, or
15 investigating a possible contravention of this
Act or the regulations, with the consent of
the occupier; or
(b) with a warrant issued under this Act.
(4) For the purposes of subsection (3)(a), an
20 authorised officer may in seeking to obtain the
consent of the occupier--
(a) enter land around the premises to the extent
that it is reasonable to do so for the purpose
of contacting the occupier; or
25 (b) enter a part of the premises which the
authorised officer considers can be entered
by a member of the public for the purpose of
contacting the occupier.
Note
30 See section 187.
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170 Issue of search warrants
(1) An authorised officer may apply to a magistrate
for the issue of a search warrant in relation to any
premises if the authorised officer believes on
5 reasonable grounds that there is, or may be within
the next 72 hours, a particular thing (including a
document) at the premises that may afford
evidence of the commission of an offence against
this Act or the regulations.
10 (2) A magistrate may issue the search warrant if the
magistrate is satisfied by evidence on oath,
whether oral or by affidavit, that there are
reasonable grounds for suspecting that there is, or
may be within 72 hours, a particular thing
15 (including a document) at the premises that may
afford evidence of the commission of an offence
against this Act or the regulations.
(3) The search warrant may authorise a named
authorised officer and any assistants the
20 authorised officer considers necessary--
(a) to enter the premises or part of the premises
named or described in the warrant; and
(b) to search for the thing named or described in
the warrant.
25 (4) In addition to any other requirement, the search
warrant must state--
(a) the offence suspected;
(b) the premises to be searched;
(c) a description of the thing for which the
30 search is to be made;
(d) any conditions to which the warrant is
subject;
(e) whether entry is authorised to be made at any
time or during specified hours;
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(f) that the warrant authorises entry on only one
occasion;
(g) a day, not later than 7 days after the warrant
is issued, on which it ceases to have effect.
5 (5) Subject to subsection (6), a search warrant must
be issued in accordance with the Magistrates'
Court Act 1989 and in the form prescribed under
that Act.
(6) Despite section 78 of the Magistrates' Court Act
10 1989, a search warrant must not authorise an
authorised officer to arrest a person.
(7) The rules that apply to search warrants mentioned
in the Magistrates' Court Act 1989 extend and
apply to search warrants under this section.
15 Division 3--Procedure for entry
171 Announcement before exercising power of entry
(1) Subject to subsection (2), before entering any
premises in the exercise of a power conferred
under this Act or the regulations, an authorised
20 officer must--
(a) announce that they are an authorised officer
who is authorised under this Act to enter the
premises; and
(b) give any person in the premises a reasonable
25 opportunity to allow entry to the premises.
(2) An authorised officer does not have to comply
with subsection (1) if the authorised officer--
(a) considers that it is not practicable to do so; or
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(b) believes on reasonable grounds that
immediate entry to the premises is required
to ensure--
(i) the health or safety of any person; or
5 (ii) the effective exercise of the powers of
the authorised officer.
172 Notice if power of entry exercised without owner or
occupier being present
If an authorised officer exercises a power of entry
10 under section 169(3), 190(1)(c) or 229 without the
owner or occupier being present, unless the
premises are abandoned or vacant or public land,
the authorised officer must, on leaving the
premises, leave a notice setting out--
15 (a) the time of entry;
(b) the purpose of entry;
(c) a description of all things done while on the
premises;
(d) the time of departure;
20 (e) the procedure for contacting--
(i) if the authorised officer was appointed
by the Secretary, the Department; or
(ii) if the authorised officer was appointed
by a Council, the relevant Council--
25 for further details of the entry.
173 Announcement before entry on warrant
(1) Before executing a search warrant, the authorised
officer named in the warrant, or a person assisting
the authorised officer, must--
30 (a) announce that they are authorised by the
warrant issued under this Act to enter the
premises; and
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(b) give any person at the premises an
opportunity to allow that entry.
(2) However, the authorised officer, or person
assisting the authorised officer, need not comply
5 with subsection (1) if they believe on reasonable
grounds that immediate entry to the premises is
needed to ensure--
(a) the health or safety of any person; or
(b) that the effective execution of the warrant is
10 not frustrated.
174 Copy of warrant to be given to occupier
If an occupier or apparent occupier is present at
the premises when a search warrant is being
executed, the authorised officer must--
15 (a) identify themselves to that person by
producing their identity card for inspection;
and
(b) give that person a copy of the execution copy
of the warrant.
20 Division 4--Powers after entry
175 General powers of authorised officers
(1) An authorised officer who enters any premises
under the powers conferred by this Act may do
any of the following--
25 (a) inspect, examine, or make enquiries, at the
premises;
(b) examine or inspect any thing (including a
document or part of a document) at the
premises;
30 (c) bring any equipment or materials to the
premises that may be required;
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(d) seize any thing (including a document) at the
premises if the authorised officer believes on
reasonable grounds that--
(i) the seizure is required to determine
5 whether there has been a contravention
of this Act or the regulations; or
(ii) the seized thing may be used as
evidence in a possible prosecution for a
contravention of this Act or the
10 regulations; or
(iii) the seizure is required to minimise a
risk to the health of any person;
(e) seal a premises or thing;
(f) take a sample of, or from, any thing, at the
15 premises for examination, analysis,
measurement or testing;
(g) analyse, measure or test any thing at the
premises with equipment brought to the
premises or already at the premises;
20 (h) take any photographs or make any audio or
visual recordings at the premises;
(i) make copies of, or take extracts from, any
document kept at the premises;
(j) use or test any equipment at the premises;
25 (k) do any other thing that is reasonably
necessary for the purpose of the authorised
officer performing or exercising his or her
functions or powers under this Act or the
regulations.
30 (2) In doing any thing referred to in subsection (1), an
authorised officer may be assisted by any person.
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176 Power to direct persons to produce documents,
operate equipment or answer questions
(1) An authorised officer who enters any premises
under section 169 may direct a person at the
5 premises to--
(a) produce a document or part of a document
located at the premises that is in the person's
possession or control;
(b) operate equipment to access information
10 from that equipment;
(c) answer any questions put by the authorised
officer.
(2) A person must not refuse or fail to comply with a
direction under subsection (1) unless the person
15 has a reasonable excuse.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
20 (3) Before directing a person to produce a document
or part of a document or to answer questions
under subsection (1), an authorised officer must--
(a) warn the person that a refusal or failure to
comply with the direction, without
25 reasonable excuse, is an offence; and
(b) inform the person that they may refuse or fail
to answer any question if answering the
question would tend to incriminate them.
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(4) A person is not liable to be prosecuted for an
offence against subsection (2) if the authorised
officer concerned failed to comply with section
166 and subsection (3).
5 Notes
1 Before directing a person to do a thing under subsection (1),
an authorised officer must also produce their identity card for
inspection if asked to do so by any person: See section 166.
2 This section does not affect the privilege against self-
10 incrimination. See section 212.
177 Authorised officers to give receipts for seized things
and samples taken
(1) If an authorised officer seizes a thing, or takes a
sample of, or from, a thing at any premises under
15 this Division, the authorised officer must give a
receipt in the approved form for the thing to the
person in charge of the thing or the premises from
which it was taken.
(2) A receipt in the approved form must--
20 (a) specify the name of the authorised officer;
and
(b) identify the thing seized or sample taken; and
(c) state the reason why the thing was seized or
the sample taken; and
25 (d) include any other matters specified in the
approved form.
(3) If for any reason it is not practicable for an
authorised officer to comply with subsection (1),
the authorised officer may--
30 (a) leave the receipt at the premises in a
conspicuous position and in a reasonably
secure way; or
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(b) send the receipt to the occupier of the
premises from where the thing was seized or
the sample was taken.
178 Copies of seized documents
5 (1) If an authorised officer retains possession of a
document seized from a person under this
Division, the authorised officer must give the
person, within 21 days of the seizure, a copy of
the document certified as correct by the authorised
10 officer.
(2) A copy of a document certified under subsection
(1) is to be received in all courts and tribunals as
evidence of equal validity to the original.
179 Retention and return of seized documents or things
15 (1) If an authorised officer seizes a document or other
thing under this Division, the authorised officer
must take reasonable steps to return the document
or thing to the person from whom it was seized if
the reason for its seizure no longer exists.
20 (2) If the document or thing seized has not been
returned within 3 months after it was seized, the
authorised officer must take reasonable steps to
return it unless--
(a) proceedings for the purpose for which the
25 document or thing was retained have
commenced within that 3 month period and
those proceedings (including any appeal)
have not been completed; or
(b) the Magistrates' Court makes an order under
30 section 180 extending the period during
which the document or thing may be
retained.
(3) This section does not apply to a document or other
thing seized under this Division that is forfeited to
35 the Secretary or a Council under section 181.
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180 Magistrates' Court may extend 3 month period
(1) An authorised officer may apply to the
Magistrates' Court--
(a) within 3 months after seizing a document or
5 other thing under this Division; or
(b) if an extension has been granted under this
section, before the end of the period of the
extension--
for an extension (not exceeding 3 months) of the
10 period for which the authorised officer may retain
the document or thing but so that the total period
of retention does not exceed 12 months.
(2) The Magistrates' Court may order such an
extension if it is satisfied that--
15 (a) it is in the interests of justice; and
(b) the total period of retention does not exceed
12 months; and
(c) retention of the document or other thing is
necessary--
20 (i) for the purposes of an investigation into
whether a contravention of this Act or
the regulations has occurred; or
(ii) to enable evidence of a contravention of
this Act or the regulations to be
25 obtained for the purposes of a
proceeding under this Act.
(3) At least 7 days prior to the hearing of an
application under this section, notice of the
application must be sent to the owner of the
30 document or thing described in the application.
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181 Forfeiture and destruction of seized things
(1) Any thing (including a document) that an
authorised officer has seized and retained under
this Division is forfeited to the Secretary (if the
5 authorised officer was appointed by the Secretary)
or a Council (if the authorised officer was
appointed by the Council) if the Secretary or the
Council--
(a) cannot find its owner despite making
10 reasonable enquiries; or
(b) cannot return it to the owner despite making
reasonable efforts; or
(c) decides it is necessary to retain the thing to
prevent a risk to public health; or
15 (d) decides it is necessary to retain the thing to
prevent the commission of an offence against
this Act or the regulations.
(2) If a thing is forfeited to the Secretary or a Council
under subsection (1)(c), the Secretary or Council
20 must notify (in writing) the owner accordingly,
setting out how the owner may seek review of the
decision referred to in that subsection, unless the
Secretary or the Council cannot find the owner
despite making reasonable enquiries.
25 182 Secretary or Council may cause forfeited things to
be destroyed or otherwise disposed of
The Secretary or a Council may cause any thing
that has been seized and retained under this
Division by an authorised officer, and forfeited to
30 the Secretary or the Council by operation of
section 181, to be destroyed or otherwise disposed
of.
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Part 9--Authorised Officers
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Division 5--Offences and complaints
183 Offence to hinder or obstruct authorised officer
A person must not, without reasonable excuse,
hinder or obstruct an authorised officer who is
5 exercising a power under this Act or the
regulations.
Penalty: 60 penalty units.
184 Offence to impersonate authorised officer
A person who is not an authorised officer must
10 not, in any way, hold himself or herself out to be
an authorised officer.
Penalty: 60 penalty units.
185 Complaints
(1) Any person may complain about the exercise of a
15 power by an authorised officer under this Act or
the regulations to--
(a) the Secretary, if the authorised officer was
appointed by the Secretary; or
(b) the relevant Council, if the authorised officer
20 was appointed by the Council.
(2) A complaint to the Secretary or the relevant
Council under subsection (1) may be made in
writing or in any other form approved by the
Secretary or the relevant Council.
25 (3) The Secretary must--
(a) investigate any complaint made to the
Secretary in accordance with subsection (2);
and
(b) provide a written report to the complainant
30 on the results of the investigation.
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(4) The Council must--
(a) investigate any complaint made to the
Council in accordance with subsection (2);
and
5 (b) provide a written report to the complainant
on the results of the investigation.
186 Investigation by Ombudsman
(1) The Ombudsman may enquire into or
investigate--
10 (a) any action taken, or not taken, by a person
who is an authorised officer in the person's
capacity as an authorised officer; and
(b) any matter relating to such an action or
inaction.
15 (2) For the purposes of subsection (1), the
Ombudsman Act 1973 applies as if--
(a) the employer of the person was a public
statutory body within the meaning of that
Act; and
20 (b) the senior executive officer of the employer
(by whatever title he or she is known) was
the principal officer of that public statutory
body.
__________________
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Part 10--Protection and Enforcement Provisions
s. 187
PART 10--PROTECTION AND ENFORCEMENT
PROVISIONS
Division 1--Powers to investigate, eliminate or reduce public
health risks
5 187 Restriction on entry to residential premises
(1) This section applies in respect of the exercise of a
power conferred on any person by a provision of
this Act to enter any residential premises without
a warrant.
10 (2) The power to enter can only be exercised to enter
that part of the residential premises to which entry
is necessary for the purposes for which the power
is conferred.
188 Chief Health Officer may direct a person to provide
15 information
(1) The Chief Health Officer may direct a person to
provide information specified in the direction to
the Chief Health Officer which the Chief Health
Officer believes is necessary to investigate
20 whether there is a risk to public health or to
manage or control a risk to public health.
Note
See section 227.
(2) A person must not refuse or fail to comply with a
25 direction given to the person under subsection (1).
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
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(3) A person is not guilty of an offence against
subsection (1) if the person had a reasonable
excuse for refusing or failing to comply with the
direction.
5 (4) Before directing a person to provide information,
the Chief Health Officer must--
(a) warn the person that a refusal or failure to
comply with the direction, without
reasonable excuse, is an offence; and
10 (b) inform the person that they may refuse or fail
to provide any information if providing the
information would tend to incriminate them.
Notes
1 This section does not affect the privilege against self-
15 incrimination. See section 212.
2 Section 167 empowers an authorised officer to request
information.
189 Powers in the case of a risk to public health
If the Chief Health Officer believes that it is
20 necessary to do so to investigate, eliminate or
reduce a risk to public health, the Chief Health
Officer may authorise--
(a) authorised officers appointed by the
Secretary to exercise any of the public health
25 risk powers; and
(b) if specified in the authorisation, a specified
class or classes of authorised officers
appointed by a specified Council or
Councils, to exercise any of the public health
30 risk powers.
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190 Public health risk powers
(1) The public health risk powers are--
(a) close any premises for the period of time
reasonably necessary to investigate,
5 eliminate or reduce the risk to public health;
(b) subject to subsection (5), direct a person or
group of persons to enter, not to enter, to
remain at, or to leave, any particular
premises for the period of time reasonably
10 necessary to investigate, eliminate or reduce
the risk to public health;
(c) subject to subsection (7), without a warrant,
enter any premises and search for and seize
any thing that is necessary for the purpose of
15 investigating, eliminating or reducing the
risk to public health;
(d) require the provision of any information
needed to investigate, eliminate or reduce the
risk to public health;
20 (e) require a person to provide their name and
address for the purpose of investigating,
eliminating or reducing the risk to public
health;
(f) inspect any premises where the risk to public
25 health may be spread if it is necessary for the
purpose of investigating, eliminating or
reducing the risk to public health;
(g) require the cleaning or disinfection of any
premises where the risk to public health may
30 arise if it is necessary to do so to eliminate or
reduce the risk to public health;
(h) require the destruction or disposal of any
thing the destruction or disposal of which is
necessary to eliminate or reduce the risk to
35 public health;
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(i) direct the owner or occupier of any premises
to take any action necessary to eliminate or
reduce the risk to public health;
(j) direct any other person to take any other
5 action that the authorised officer considers is
necessary to eliminate or reduce the risk to
public health;
(k) exercise any of the general enforcement
powers conferred on an authorised officer by
10 this Act or the regulations.
(2) Before exercising any public health risk power
under this section, an authorised officer must,
unless it is not practicable to do so, warn the
person that a refusal or failure to comply without a
15 reasonable excuse, is an offence.
(3) Unless subsection (4) applies, before exercising a
public health risk power, an authorised officer
must briefly explain to any person who is to be
subject to the exercise of the power the reason
20 why it is necessary to exercise the power
(4) An authorised officer is not required to comply
with subsection (3) if it is not practicable to do so
in the particular circumstances in which the public
health risk power is to be exercised.
25 (5) A direction under subsection (1)(b) to remain at
any particular premises must specify the period of
time, not exceeding 4 hours, during which the
direction must be complied with.
(6) A direction under subsection (1)(b) to remain at
30 any particular premises may be extended as many
times as is reasonably necessary for the purpose of
investigating, eliminating or reducing the risk to
public health but so as not to exceed a continuous
period of 12 hours.
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(7) An authorised officer may only exercise the power
specified in subsection (1)(c) if--
(a) the authorised officer reasonably believes
that there may be an immediate risk to public
5 health; and
(b) the entry is necessary to enable the
authorised officer to investigate, eliminate or
reduce the risk.
(8) Before requiring the provision of any information
10 under subsection (1)(d), an authorised officer must
inform the person that they may refuse or fail to
provide the information if providing the
information would tend to incriminate them.
Notes
15 1 This section does not affect the privilege against self-
incrimination. See section 212.
2 See Part 9 for provisions relating to the exercise of powers by
authorised officers.
191 How may an authorisation be given?
20 (1) An authorisation to exercise any of the public
health risk powers for the purposes of section 189
may be given orally or in writing.
(2) If the authorisation is given orally, it must be
confirmed in writing as soon as reasonably
25 practicable.
(3) An authorisation must--
(a) state that the authorisation is given under this
Division;
(b) generally describe the risk to public health to
30 which it relates;
(c) if the risk to public health has occurred,
name or describe the place at which the risk
to public health has occurred;
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(d) specify the time at which the authorisation is
given;
(e) specify any restrictions or limitations subject
to which the public health risk powers may
5 be exercised under the authorisation;
(f) specify the period of time for which the
authorisation continues in force.
(4) The Chief Health Officer may extend the period
of time for which an authorisation continues in
10 force before the authorisation expires.
192 Assistance
(1) An authorised officer may be assisted by any
person in exercising a public health risk power
under an authorisation given under section 189.
15 (2) A request for assistance by a member of the police
force must be made to the Chief Commissioner of
Police or a delegate of the Chief Commissioner of
Police.
193 Compliance with direction or requirement
20 (1) A person must not refuse or fail to comply with a
direction given to the person, or a requirement
made of the person, in the exercise of a public
health risk power under an authorisation given
under section 189.
25 Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
(2) A person is not guilty of an offence against
30 subsection (1) if the person had a reasonable
excuse for refusing or failing to comply with the
direction or requirement.
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Division 2--Improvement notices and prohibition notices
194 Secretary or Council may issue improvement notice
or prohibition notice
(1) This section applies if the Secretary or a Council
5 believes that a person--
(a) has contravened a provision of this Act or
the regulations administered by the Secretary
or the Council in circumstances that make it
likely that the contravention is continuing or
10 will re-occur; or
(b) is likely to contravene a provision of this Act
or the regulations administered by the
Secretary or the Council.
(2) If this section applies, the Secretary or the
15 Council, as the case requires, may issue to the
person--
(a) an improvement notice requiring the person
to remedy the contravention or likely
contravention or the matters or activities
20 causing the contravention or likely
contravention; or
(b) a prohibition notice prohibiting the carrying
on of the activity, or the carrying on of the
activity in a specified way, until the
25 Secretary or the Council, as the case
requires, has certified in writing that the
contravention has ceased or that the
likelihood of the contravention occurring has
passed.
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(3) An improvement notice or a prohibition notice
must--
(a) state the grounds on which the issue of the
improvement notice or prohibition notice is
5 based;
(b) specify the provision of this Act or the
regulations that the Secretary or the Council,
as the case requires, considers has been or is
likely to be contravened;
10 (c) specify the actions or measures that the
person is required to take and the period
within which the actions or measures are to
be completed;
(d) set out the penalty for contravening the
15 improvement notice or prohibition notice;
(e) state how the person may seek review of the
issue of the improvement notice or
prohibition notice;
(f) include a statement as to the effect of
20 section 195.
(4) A person to whom an improvement notice or a
prohibition notice is issued must comply with the
improvement notice or prohibition notice.
Penalty: In the case of a natural person,
25 120 penalty units;
In the case of a body corporate,
600 penalty units.
195 Proceedings for offences not affected by notices
The issue of an improvement notice or a
30 prohibition notice does not affect any proceedings
for an offence against this Act or the regulations
in connection with any matter in respect of which
the improvement notice or prohibition notice was
issued.
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196 Injunction for non-compliance with improvement
notice or prohibition notice
(1) The Chief Health Officer, the Secretary or a
Council may apply to the Magistrates' Court for
5 an injunction--
(a) compelling a person to comply with an
improvement notice or a prohibition notice;
or
(b) restraining a person from contravening an
10 improvement notice or a prohibition notice.
(2) The Chief Health Officer, the Secretary or the
Council may do so whether or not proceedings
have been instituted for an offence against this
Act or the regulations in connection with any
15 matter in respect of which the improvement notice
or prohibition notice was issued.
197 Special provisions relating to nuisances
(1) This section applies if an improvement notice or a
prohibition notice is issued in respect of a
20 nuisance.
(2) The Council may cause a complaint to be made to
the Magistrates' Court if--
(a) the person on whom the improvement notice
or prohibition notice is served does not
25 comply with it; or
(b) in the opinion of the Council the nuisance to
which the improvement notice or prohibition
notice applies, although abated, is likely to
recur.
30 (3) The Magistrates' Court may summon the person to
appear before the Magistrates' Court.
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(4) If the Magistrates' Court is satisfied that the
nuisance exists or is likely to recur, the
Magistrates' Court must order that person to do
either or both of the following--
5 (a) comply with the improvement notice or
prohibition notice;
(b) carry out works to prevent the recurrence of
the nuisance.
(5) If an order has been made under subsection (4),
10 the Council may--
(a) enter the land to which the order relates and
abate the nuisance and do whatever is
necessary to execute the order; and
(b) recover the costs and expenses incurred by it
15 from the person on whom the order is made.
(6) If the person on whom the order is made is the
owner of the relevant land for the time being, the
costs and expenses may at any time be recovered
by the Council in a court of competent
20 jurisdiction, after demand from the occupier of the
relevant land for the time being, from the rent, to
the extent of the amount of rent due, at the time of
demand, from the occupier to the owner.
(7) A person who fails to comply with an order under
25 subsection (4) is guilty of an offence unless the
person satisfies the Magistrates' Court that the
person has, in seeking to comply with the order,
exercised due diligence.
Penalty: In the case of a natural person,
30 120 penalty units;
In the case of a body corporate,
600 penalty units.
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Division 3--Emergency powers
198 Declaration of a state of emergency
(1) The Minister may, on the advice of the Chief
Health Officer and after consultation with the
5 Co-ordinator in Chief and the State Co-ordinator
under the Emergency Management Act 1986,
declare a state of emergency arising out of any
circumstances causing a serious risk to public
health.
10 (2) Subject to subsection (3), the Minister may at any
time revoke or vary a declaration under this
section.
(3) The Minister must consult with the Co-ordinator
in Chief and the State Co-ordinator under the
15 Emergency Management Act 1986 before
varying a declaration under this section to extend
the emergency area.
(4) Immediately upon the making, revocation or
variation of a declaration under this section, a
20 state of emergency exists, ceases to exist or exists
as so varied for the purposes of this Part.
(5) As soon as practicable after the making,
revocation or variation of a declaration under this
section, the Minister must cause notice of the
25 making, revocation or variation of the declaration
to be--
(a) broadcast from a broadcasting station in
Victoria; and
(b) in the case of the making or variation of a
30 declaration, published with a copy of the
declaration in the Government Gazette; and
(c) in the case of the revocation of a declaration,
published in the Government Gazette.
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(6) Production of a Government Gazette purporting to
contain--
(a) notice of the making, revocation or variation
of a declaration under this section is
5 evidence of that making, revocation or
variation; and
(b) a copy of the declaration under this section is
evidence of the terms of the declaration.
(7) A declaration under this section--
10 (a) must specify the emergency area in which
the state of emergency exists being
throughout Victoria or in specified areas of
Victoria;
(b) continues in force for the period not
15 exceeding 4 weeks specified in the
declaration;
(c) may be extended by another declaration for
further periods not exceeding 4 weeks but
the total period that the declaration continues
20 in force cannot exceed 6 months.
(8) If a state of emergency is declared under this
section, the Minister must report on the state of
the emergency and the public health risk powers
and emergency powers exercised to both Houses
25 of Parliament--
(a) if Parliament is then sitting, as soon as
practicable after the declaration is made or
varied; and
(b) if Parliament is not then sitting, as soon as
30 practicable after the next meeting of the
Parliament.
(9) A declaration under this section does not derogate
from or limit any provisions relating to the
declaration of an emergency under any other Act.
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199 Chief Health Officer may authorise exercise of
certain powers
(1) This section applies if--
(a) a state of emergency exists under
5 section 198; and
(b) the Chief Health Officer believes that it is
necessary to grant an authorisation under this
section to eliminate or reduce a serious risk
to public health.
10 (2) If this section applies, the Chief Health Officer
may, for the purpose of eliminating or reducing
the serious risk to public health, authorise--
(a) authorised officers appointed by the
Secretary to exercise any of the public health
15 risk powers and emergency powers; and
(b) if specified in the authorisation, a specified
class or classes of authorised officers
appointed by a specified Council or Councils
to exercise any of the public health risk
20 powers and emergency powers.
(3) The Chief Health Officer may at any time revoke
or vary an authorisation given under this section.
200 Emergency powers
(1) The emergency powers are--
25 (a) subject to this section, detain any person or
group of persons in the emergency area for
the period reasonably necessary to eliminate
or reduce a serious risk to public health;
(b) restrict the movement of any person or group
30 of persons within the emergency area;
(c) prevent any person or group of persons from
entering the emergency area;
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(d) give any other direction that the authorised
officer considers is reasonably necessary to
protect public health.
(2) Unless subsection (3) applies, before any person is
5 subject to detention under subsection (1)(a), an
authorised officer must briefly explain the reason
why it is necessary to detain the person.
(3) If in the particular circumstances in which the
power to detain the person is to be exercised, it is
10 not practicable to briefly explain the reason why it
is necessary to detain the person before the power
is exercised, the authorised officer must do so as
soon as is practicable.
(4) Before exercising any emergency powers under
15 this section, an authorised officer must, unless it is
not practicable to do so, warn the person that a
refusal or failure to comply without a reasonable
excuse, is an offence.
(5) An authorised officer must facilitate any
20 reasonable request for communication made by a
person subject to detention under
subsection (1)(a).
(6) An authorised officer must at least once every
24 hours during the period that a person is subject
25 to detention under subsection (1)(a) review
whether the continued detention of the person is
reasonably necessary to eliminate or reduce a
serious risk to public health.
(7) An authorised officer must as soon as is
30 reasonably practicable give written notice to the
Chief Health Officer--
(a) that a person has been made subject to
detention under subsection (1)(a);
(b) that following a review under subsection (6)
35 a person is to continue to be subject to
detention under subsection (1)(a).
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(8) A notice under subsection (7) must include--
(a) the name of the person being detained; and
(b) a brief statement as to the reason why the
person is being, or continues to be, subject to
5 detention under subsection (1)(a).
(9) The Chief Health Officer must as soon as is
reasonably practicable advise the Minister of any
notice received under subsection (7).
201 How may an authorisation be given?
10 (1) An authorisation to exercise any of the public
health risk powers or emergency powers for the
purposes of section 199 may be given orally or in
writing.
(2) If the authorisation is given orally, it must be
15 confirmed in writing as soon as reasonably
practicable.
(3) An authorisation must--
(a) state that the authorisation is given under this
Division;
20 (b) generally describe the serious risk to public
health to which it relates;
(c) if the serious risk to public health has
occurred, name or describe the place at
which the serious risk to public health has
25 occurred;
(d) specify the time at which the authorisation is
given;
(e) specify any restrictions or limitations to
which of the public health risk powers or
30 emergency powers may be exercised under
the authorisation;
(f) specify the period of time for which the
authorisation continues in force.
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(4) The Chief Health Officer may extend the period
of time for which an authorisation continues in
force before the authorisation expires.
202 Assistance
5 (1) An authorised officer may be assisted by any
person in exercising a power under an
authorisation given under section 199.
(2) A request for assistance by a member of the police
force must be made to the Chief Commissioner of
10 Police or a delegate of the Chief Commissioner of
Police.
203 Compliance with direction or other requirement
(1) A person must not refuse or fail to comply with a
direction given to the person, or a requirement
15 made of the person, in the exercise of a power
under an authorisation given under section 199.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
20 600 penalty units.
(2) A person is not guilty of an offence against
subsection (1) if the person had a reasonable
excuse for refusing or failing to comply with the
direction or requirement.
25 204 Compensation
(1) A person who suffers loss as a result of a decision
by the Chief Health Officer to give an
authorisation to an authorised officer under this
Division may apply to the Secretary for
30 compensation if the person considers that there
were insufficient grounds for the giving of that
authorisation.
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(2) If the Secretary decides that there were
insufficient grounds for the giving of an
authorisation to an authorised officer under this
Division, the Secretary is to pay just and
5 reasonable compensation to the applicant.
(3) The Secretary must send notice in writing of the
decision under subsection (2) as to the payment of
compensation under this section to each applicant
for the payment of compensation.
10 (4) The Secretary is taken to have refused to pay any
compensation if the Secretary has not decided an
application for compensation under this section
within--
(a) 28 days of receiving the application; or
15 (b) the period agreed to by the Secretary and the
applicant for the payment of compensation
under subsection (5).
(5) The Secretary and the applicant for the payment
of compensation may agree that the Secretary may
20 decide the applicant's application for the payment
of compensation within a period that is greater
than the 28 days specified in subsection (4)(a).
(6) The Secretary must inform each applicant for the
payment of compensation in writing of the
25 applicant's right to apply to VCAT for a review.
(7) An applicant for the payment of compensation
under this section who is dissatisfied with a
decision by the Secretary as to the refusal to pay
compensation or as to the amount of
30 compensation may apply to the VCAT for a
review of the decision.
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(8) An application for review must be made within
28 days of the latest of--
(a) the day on which the decision is made; or
(b) the day on which the person was notified
5 under subsection (6) of the right to apply for
a review; or
(c) if, under the Victorian Civil and
Administrative Tribunal Act 1998, the
person requests a statement of reasons for the
10 decision, the day on which the statement of
reasons is given to the person or the person is
informed under section 46(5) of that Act that
a statement of reasons will not be given.
__________________
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Part 11--General Provisions
s. 205
PART 11--GENERAL PROVISIONS
Division 1--Reviews and appeals
205 Review by a Council
(1) In this section--
5 decision means a decision made by a Council
under section 74 or 76 in respect of the issue,
variation, transfer, renewal, cancellation or
suspension of a registration;
person aggrieved means the person who is the
10 applicant for, or the holder of, the
registration in respect of which the decision
was made.
(2) A person aggrieved by a decision may within
28 days of being notified of the decision apply to
15 the Council for a review of the decision.
(3) On receiving an application under subsection (2),
the Council must review the decision.
(4) The Council is taken to have affirmed the decision
if the Council has not determined an application
20 under this section within--
(a) 28 days of receiving the application; or
(b) the period agreed to by the Council and the
applicant under subsection (5).
(5) The Council and the applicant may agree that the
25 Council may determine the applicant's application
within a period that is greater than the 28 days
specified in subsection (4)(a).
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(6) The Council may--
(a) make a decision affirming, varying or
revoking the decision; and
(b) if the Council revokes the decision, make
5 any other decision as the Council considers
appropriate under the provision under which
the decision was made.
(7) The Council must within the period applying
under subsection (4) give the applicant for review
10 a written statement of the decision and the reasons
for the decision.
(8) The Council must inform an applicant for review
in writing of the applicant's right to apply to
VCAT for a review under section 207.
15 206 Review by the Secretary
(1) In this section--
decision means a decision made by the Secretary
in respect of--
(a) the certification, or revocation of the
20 certification, of a person as an approved
auditor under section 94; or
(b) the issue, variation, renewal,
cancellation or suspension of a pest
control licence under section 101
25 or 105;
person aggrieved means the person who is the
applicant for, or the holder of, the
certification or pest control licence in respect
of which the decision was made.
30 (2) A person aggrieved by a decision may within
28 days of being notified of the decision apply to
the Secretary for a review of the decision.
(3) On receiving an application under subsection (2),
the Secretary must review the decision.
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(4) The Secretary is taken to have affirmed the
decision if the Secretary has not determined an
application under this section within--
(a) 28 days of receiving the application; or
5 (b) the period agreed to by the Secretary and the
applicant under subsection (5).
(5) The Secretary and the applicant may agree that the
Secretary may determine the application within a
period that is greater than the 28 days specified in
10 subsection (4)(a).
(6) The Secretary may--
(a) make a decision affirming, varying or
revoking the decision; and
(b) if the Secretary revokes the decision, make
15 any other decision as the Secretary considers
appropriate under the provision under which
the decision was made.
(7) The Secretary must within the period applying
under subsection (4) give the applicant for review
20 a written statement of the decision and the reasons
for the decision.
(8) The Secretary must inform an applicant for review
in writing of the applicant's right to apply to
VCAT for a review under section 207.
25 207 Review by VCAT
(1) This section applies to a decision--
(a) made by a Council to cancel or suspend a
registration under section 76; or
(b) made by a Council on an application under
30 section 205; or
(c) made by the Secretary to revoke the
certification of a person as an approved
auditor under section 94; or
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(d) made by the Secretary to cancel or suspend a
pest control licence under section 105; or
(e) made by the Secretary on an application
under section 206.
5 (2) The person who made the application in respect of
the decision to which this section applies may
apply to VCAT for a review of the decision.
(3) An application for review must be made within
28 days of the latest of--
10 (a) the day on which the decision is made; or
(b) if applicable, the day the person was notified
under section 205(8) or 206(8) of the right to
apply for a review under this section; or
(c) if, under the Victorian Civil and
15 Administrative Tribunal Act 1998, the
person requests a statement of reasons for the
decision, the day on which the statement of
reasons is given to the person or the person is
informed under section 46(5) of that Act that
20 a statement of reasons will not be given.
208 Appeal against improvement notice or prohibition
notice
(1) A person on whom an improvement notice or
prohibition notice is served may appeal to the
25 Magistrates' Court within 21 days after the
improvement notice or prohibition notice is served
on the person.
(2) The Magistrates' Court must--
(a) reconsider the decision to issue the
30 improvement notice or prohibition notice;
(b) hear any relevant evidence tendered by the
applicant or any person on behalf of the
person who issued the improvement notice
or prohibition notice;
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(c) affirm or revoke the issue of the
improvement notice or prohibition notice.
(3) Unless the Magistrates' Court otherwise orders,
the appeal does not affect the status of the
5 improvement notice or prohibition notice pending
the determination of the appeal.
(4) The decision of the Magistrates' Court on an
appeal takes effect from the date that the decision
is made.
10 (5) The costs of and incidental to an appeal are in the
discretion of the Magistrates' Court.
Division 2--Infringements
209 Infringements
(1) The Secretary may serve an infringement notice
15 on any person that the Secretary has reason to
believe has committed a prescribed offence.
(2) A Council may serve an infringement notice on
any person that the Council has reason to believe
has committed a prescribed offence.
20 (3) An offence referred to in subsection (1) or (2) for
which an infringement notice may be issued is an
infringement offence within the meaning of the
Infringements Act 2006.
(4) The infringement penalty for an offence against a
25 prescribed offence is the prescribed penalty.
(5) In this section, prescribed offence means--
(a) in relation to a Council, an offence against
Part 6, 9 or 10 (or any regulations made
under Part 6, 9 or 10) which is prescribed for
30 the purposes of this section and is committed
wholly or partly in the Council's municipal
district; and
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(b) in relation to the Secretary, an offence
against this Act (other than section 61) or the
regulations which is prescribed for the
purposes of this section, wherever
5 committed.
Note
See the Infringements Act 2006 for provisions relating to
infringement notices.
Division 3--Offences
10 210 False or misleading information
(1) A person must not--
(a) give information that is false or misleading
in a material particular; or
(b) make a statement that is false or misleading
15 in a material particular; or
(c) produce a document that is false or
misleading in a material particular--
to the Secretary, a Council, the Chief Health
Officer or an authorised officer under this Act or
20 the regulations without indicating the respect in
which it is false or misleading and, if practicable,
providing correct information.
Penalty: In the case of a natural person,
60 penalty units;
25 In the case of a body corporate,
300 penalty units.
(2) A person must not make an entry in a document
required to be kept by this Act or the regulations
that is false or misleading.
30 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
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(3) In a proceeding for an offence against subsection
(1) or (2) it is a defence to the charge for the
accused to prove that at the time at which the
offence is alleged to have been committed, the
5 accused believed on reasonable grounds that the
information, statement or document was true or
was not misleading.
211 Destroying or damaging records
A person must not, without lawful authority,
10 destroy or damage any record required to be kept
in accordance with this Act or the regulations.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
15 300 penalty units.
212 Protection against self-incrimination
(1) A natural person may refuse or fail to give
information or do any other thing that the person
is required to do by or under this Act or the
20 regulations if giving the information or doing the
other thing would tend to incriminate the person.
(2) However, subsection (1) does not apply to--
(a) the production of a document or part of a
document that the person is required by this
25 Act or the regulations to produce; or
(b) the giving of a person's name or address in
accordance with this Act or the regulations.
213 Legal professional privilege not affected
Nothing in this Act or the regulations--
30 (a) entitles or requires a person to disclose
information that is the subject of legal
professional privilege; or
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(b) affects the law or practice relating to legal
professional privilege.
214 Offences by corporations
(1) If a corporation is guilty of an offence against this
5 Act or the regulations, any officer of the
corporation who was in any way, by act or
omission, directly or indirectly, knowingly
concerned in or party to the commission of the
offence is also guilty of that offence and liable to
10 the penalty for that offence.
(2) If in a proceeding for an offence against this Act
or the regulations it is necessary to establish the
intention of a corporation, it is sufficient to show
that an employee or agent of the corporation had
15 that intention.
(3) A statement made by an officer of a corporation is
admissible as evidence against the corporation in
any proceeding against the corporation for an
offence against this Act or the regulations.
20 (4) In this section, officer--
(a) in relation to a corporation within the
meaning of the Corporations Act, has the
same meaning as in section 9 of that Act; and
(b) in relation to a corporation that is not a
25 corporation within the meaning of that Act,
means any person (by whatever name called)
who is concerned or takes part in the
management of the corporation--
but does not include an employee of the
30 corporation.
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215 Persons who are liable for offences
(1) If two or more persons are responsible for the
same offence against this Act or the regulations,
each of those persons is liable to the penalty
5 provided by this Act or the regulations for that
offence and the liability of each of them is
independent of the liability of any other person.
(2) If this Act or the regulations provide that a person
is guilty of an offence and the person who is
10 guilty of the offence is a partnership, firm,
unincorporated body or association, the reference
to a person must be construed as a reference to
each member of the partnership or firm or of the
committee of management of the unincorporated
15 body or association who knowingly authorised or
permitted the commission of the offence.
(3) If in any proceeding for an offence against this
Act or the regulations against a person who is a
partnership, firm, unincorporated body or
20 association it is necessary to establish the state of
mind of the partnership, firm, unincorporated
body or association, it is sufficient to show that an
employee or agent of the partnership, firm,
unincorporated body or association had that state
25 of mind.
Division 4--Proceedings and legal matters
216 Responsible agency for the Crown
(1) If the Crown is to be served with an infringement
notice, or proceedings are brought against the
30 Crown, for an offence against this Act or the
regulations the responsible agency in respect of
the offence may be specified in the infringement
notice or any document initiating, or relating to,
the proceedings.
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(2) In this section, the responsible agency in respect
of an offence is the agency of the Crown--
(a) whose acts or omissions are alleged to
constitute the offence; or
5 (b) if that agency has ceased to exist, that is the
successor of that agency; or
(c) if that agency has ceased to exist and there is
no clear successor, that the court declares to
be the responsible agency.
10 (3) The responsible agency in respect of an offence is
entitled to act in proceedings against the Crown
for the offence and, subject to any relevant rules
of court, the procedural rights and obligations of
the Crown as the accused in the proceedings are
15 conferred or imposed on the responsible agency.
(4) The person prosecuting the offence may change
the responsible agency during the proceedings
with the court's leave.
217 Infringement and other notices may be issued to the
20 Crown
(1) The Crown in any capacity may be issued with an
infringement notice for an offence against this Act
or the regulations.
(2) If an improvement notice or a prohibition notice is
25 to be issued to the Crown, the improvement notice
or prohibition notice may be issued to the agency
of the Crown that would be the responsible
agency under section 216 if the Crown were
prosecuted for an offence of contravening the
30 notice.
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218 Proceedings against successors to public bodies
(1) Proceedings for an offence against this Act or the
regulations that were instituted against a public
body before its dissolution, or that could have
5 been instituted against a public body if not for its
dissolution, may be continued or instituted against
its successor if the successor is a public body.
(2) An infringement notice served on a public body
for an offence against this Act or the regulations is
10 taken to be an infringement notice served on its
successor if the successor is a public body.
(3) Any penalty paid by a public body in respect of an
infringement notice is taken to be a penalty paid
by its successor if the successor is a public body.
15 (4) In this section, public body means--
(a) a body corporate representing the Crown; or
(b) a State owned enterprise or reorganising
body within the meaning of the State
Owned Enterprises Act 1992; or
20 (c) a Council; or
(d) a public entity within the meaning of the
Public Administration Act 2004.
219 Power to bring proceedings
(1) The Secretary, an authorised officer appointed by
25 the Secretary or a member of the police force may
bring proceedings for an offence under this Act
(other than section 61) or the regulations wherever
committed.
(2) A Council or an authorised officer appointed by
30 the Council may bring proceedings for any of the
following--
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(a) an offence against Part 6, 9 or 10 (or any
regulations made under Part 6, 9 or 10)
committed wholly or partly in the Council's
municipal district;
5 (b) an offence relating to an improvement notice
or a prohibition notice issued by the Council.
220 Time within which proceedings for offences may be
brought
Despite section 26 of the Magistrates' Court Act
10 1989--
(a) proceedings for an offence against
section 127, 130(2), 130(5), 159(1), 159(2),
159(3), 159(4), 160(1) or 160(2) may be
commenced within 2 years of the
15 commission of the alleged offence; and
(b) proceedings for an offence against
section 155 may be commenced within
3 years of the commission of the alleged
offence.
20 221 Service of notices, orders and other documents
(1) Any notice, order or other document under this
Act or the regulations required or authorised to be
given or served to or upon any person may be
served by--
25 (a) giving it or serving it personally on the
person; or
(b) sending it by post or electronic
communication to the person at that person's
usual or last known place of residence or
30 business; or
(c) leaving it at that person's usual or last known
place of residence with a person on the
premises who is apparently at least 16 years
old; or
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(d) leaving it at that person's usual or last known
place of business with a person who is
apparently employed at the premises and
who is apparently at least 16 years old.
5 (2) This section is in addition to, and not in
derogation from, sections 109X and 601CX of the
Corporations Act.
(3) If a notice, order or other document is addressed
to the owner or occupier of premises, the notice,
10 order or document may be served by--
(a) delivering the notice, order or other
document or a true copy to a person on the
premises who is apparently at least 16 years
old; or
15 (b) if there is no person on the premises who can
be so served, by fixing the notice, order or
other document on some conspicuous part of
the premises.
(4) If a notice, order or other document is required to
20 be given to or served on a person whose name and
address are unknown, the notice, order or other
document may be served by publishing the notice,
order or other document in--
(a) the Government Gazette; and
25 (b) a newspaper generally circulating in Victoria
3 times at intervals of not less than one week
between any 2 publications.
(5) Any notice, order or other document required to
be given to or served on the owner or occupier of
30 any premises may if the name of the owner or
occupier is not known be addressed to the owner
or occupier by the description of the "owner" or
"occupier" of the premises (naming them) in
respect of which the notice, order or other
35 document is given without further name or
description.
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(6) If there are more owners or occupiers than one it
is sufficient if the notice, order or other document
is served on any one of them and the name of any
one of them is specified with the addition of the
5 words "and others".
(7) Non-service on the owner does not affect the
validity of service on the occupier.
(8) Non-service on the occupier does affect the
validity of service on the owner.
10 (9) Instead of attending at any proceedings under this
Act or the regulations, a person who gives or
serves any notice, order or other document under
this Act or the regulations may make an affidavit
that--
15 (a) identifies and is endorsed on, or attached to,
a true copy of the original notice, order or
other document; and
(b) states the time and manner in which the
original notice, order or other document was
20 given or served.
(10) A document purporting to be an affidavit under
subsection (9) is to be received in any proceedings
and is evidence of the statements contained in the
document.
25 222 Validity and effect of notices, orders and other
documents
(1) The validity of any notice, order or other
document or of the service of the notice, order or
other document is not affected by any error,
30 misdescription or irregularity which in the opinion
of the court is not likely to mislead or which in
fact does not mislead.
(2) If due service of a notice, order or other document
required under this Act or the regulations to be
35 given or served on any owner or occupier has
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been once made on any owner or occupier, the
notice, order or other document is binding on all
persons claiming by from or under that owner or
occupier and on all subsequent owners or
5 occupiers to the same extent as if served on each
of those persons respectively.
223 Evidence of signatures
A signature purporting to be the signature of the
Minister, the Secretary, the Chief Health Officer,
10 an authorised officer or an analyst is evidence of
the signature it purports to be.
224 Certificate of examination and analysis
(1) This section applies to the following--
(a) proceedings under section 122 (application
15 to VCAT for review of a public health
order);
(b) proceedings under section 196 (application
for an injunction to compel compliance with,
or to restrain a contravention of, an
20 improvement notice or a prohibition notice);
(c) proceedings under section 197 (special
provisions relating to nuisances);
(d) proceedings under section 208 (appeal
against an improvement notice or a
25 prohibition notice);
(e) proceedings for an offence against this Act
or the regulations.
(2) A certificate of examination and analysis signed
by an analyst stating any of the following matters
30 is evidence of the matter--
(a) the analyst's qualifications;
(b) the analyst took, or received from a stated
person, a thing or sample;
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(c) a thing or sample was examined, analysed,
measured or tested at a stated place on a
stated day or during a stated period;
(d) the methodology used to examine, analyse,
5 measure or test a thing or sample;
(e) the results of the examination, analysis,
measurement or test.
225 Evidentiary certificate signed by the Secretary
(1) This section applies to the following--
10 (a) proceedings under section 122 (application
to VCAT for review of a public health
order);
(b) proceedings under section 196 (application
for an injunction to compel compliance with,
15 or to restrain a contravention of, an
improvement notice or a prohibition notice);
(c) proceedings under section 208 (appeal
against an improvement notice or a
prohibition notice);
20 (d) proceedings for an offence against this Act
or the regulations brought under
section 219(1).
(2) A certificate signed by the Secretary stating any of
the following matters is evidence of the matter--
25 (a) a stated document is one of the following
things made, given or issued under this Act
or the regulations--
(i) an appointment or a decision;
(ii) a notice, direction or requirement;
30 (iii) a registration, licence or authority;
(iv) a record or an extract from a record;
(v) a register or an extract from a register;
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(b) a stated document is a copy of a thing
referred to in paragraph (a);
(c) on a stated day, or during a stated period, a
stated person was or was not the holder of a
5 registration, licence or authority;
(d) on a stated day, or during a stated period, a
registration, licence or authority--
(i) was or was not in force; or
(ii) was or was not subject to a stated
10 condition;
(e) on a stated day, or during a stated period, a
registration or licence was suspended;
(f) on a stated day a registration or licence was
cancelled, varied, transferred or surrendered;
15 (g) on a stated day, or during a stated period, an
appointment as an authorised officer or
analyst was, or was not, in force for a stated
person;
(h) on a stated day, a stated person was given a
20 stated notice or direction under this Act;
(i) on a stated day, a stated requirement was
made of a stated person;
(j) a stated amount is payable under this Act or
the regulations by a stated person and has not
25 been paid.
226 Evidentiary certificate signed by Chief Executive
Officer of a Council
(1) This section applies to the following--
(a) proceedings under section 196 (application
30 for an injunction to compel compliance with,
or to restrain a contravention of, an
improvement notice or a prohibition notice);
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(b) proceedings under section 197 (special
provisions relating to nuisances);
(c) proceedings under section 208 (appeal
against an improvement notice or a
5 prohibition notice);
(d) proceeding for an offence against this Act or
the regulations brought under section 219(2).
(2) A certificate signed by the Chief Executive
Officer of a Council stating any of the following
10 matters is evidence of the matter--
(a) a stated document is one of the following
things made, given or issued under this Act
or the regulations--
(i) an appointment or a decision;
15 (ii) a notice, direction or requirement;
(iii) a registration;
(iv) a record or an extract from a record;
(v) a register or an extract from a register;
(b) a stated document is a copy of a thing
20 referred to in paragraph (a);
(c) on a stated day, or during a stated period, a
stated person was or was not the holder of a
registration;
(d) on a stated day, or during a stated period, a
25 registration--
(i) was or was not in force; or
(ii) was or was not subject to a stated
condition;
(e) on a stated day, or during a stated period, a
30 registration was suspended;
(f) on a stated day a registration was cancelled,
varied, transferred or surrendered;
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(g) on a stated day, or during a stat