Public Health Act 2005

The Act directly affects:

• Doctors and other clinicians, who bear mandatory notification obligations under Chapter 3 (Part 2) when they diagnose or provisionally diagnose a notifiable condition.
• Laboratory operators and pathology providers, who must notify the chief executive when examining a specimen indicating a notifiable condition.
• Operators and staff of declared health services, who must maintain approved infection control management plans under Chapter 4.
• Local governments, which have specific roles in identifying and managing public health risks under Chapter 2, Parts 1 and 2, and in enforcing public health orders.
• Operators of prescribed facilities (including hospitals, aged care facilities and premises with cooling towers), who must comply with the water management plan obligations in Chapter 2A.
• Persons with controlled notifiable conditions, who may be subject to examination, behavioural and detention orders under Chapter 3, Part 5.
• School operators and child care providers, who must exclude unvaccinated children under Chapter 5, Division 1AA, and comply with mandatory reporting obligations for suspected child abuse.
• Research institutions, which must comply with notification requirements for the Queensland Cancer Register under Chapter 6.
• All persons in Queensland during a declared public health emergency under Chapter 8.
• Businesses and venues, whose operations may be restricted by emergency officer directions under Chapter 8, Parts 6 and 7.

Mandatory notification of notifiable conditions. Section 70 requires a doctor who examines a person and finds that person has or has had a clinical diagnosis notifiable condition or provisional diagnosis notifiable condition to notify the chief executive. Pathology providers similarly must notify in respect of pathological diagnosis notifiable conditions. The Notifiable Conditions Register (s 67) records these notifications.

Contact tracing obligations. Chapter 3, Part 3 imposes obligations on persons with notifiable conditions to cooperate with contact tracing inquiries. Failure to cooperate may result in a controlled notifiable conditions order being sought.

Infection control management plans. Under Chapter 4, Part 3, the operator of a health care facility providing a declared health service must maintain an approved infection control management plan (ICMP). The plan must identify infection risks, set out procedures to minimise those risks and be kept up to date.

Water management plans. Chapter 2A, Part 2 requires operators of prescribed facilities (defined to include hospitals and facilities with cooling towers) to have water management plans in place to manage Legionella and other waterborne hazards. Chapter 2, Part 5A addresses improvement notices for drinking water and recycled water supply failures.

Exclusion of unvaccinated children. Chapter 5, Division 1AA (commencing at s 160A) requires operators of early childhood education and care services to exclude a child whose immunisation status is not up to date when there is an outbreak of a vaccine-preventable disease. The definition of "immunisation status up to date" is tied to the Australian Immunisation Handbook and the Australian Immunisation Register Act 2015 (Cth).

Cancer notification. Chapter 6, Part 2 requires treating doctors and laboratory providers to notify the Queensland Cancer Register when a person is diagnosed with cancer as defined in s 229.

Compliance with public health orders. Section 46 (in the public health order enforcement framework) requires the recipient of a public health order to comply with it. Maximum penalty for non-compliance is 200 penalty units, and failure to comply may also trigger enforcement action by authorised persons.

Public health emergency declaration. Section 319 empowers the Minister to declare a public health emergency by signed written order if satisfied there is such an emergency and that it is necessary to exercise the relevant chapter's powers to prevent or minimise serious adverse effects on human health. The Minister must consult the chief executive and chief health officer before declaring where practicable, and afterwards if prior consultation was not practicable (s 319(3)-(4)).

Emergency officer directions. Under Chapter 8, Part 6, emergency officers appointed under Part 5 may give directions to persons to take specified action or refrain from specified action, restrict movement of persons or vehicles, take possession of premises, and otherwise act to prevent, control or reduce the public health emergency. Part 7 confers additional powers on emergency officers who hold medical qualifications, including powers relating to treatment.

Controlled notifiable conditions orders. Section 116 empowers the chief executive to apply to a magistrate for an initial examination order, a behavioural order or a detention order in relation to a person who has or is suspected of having a controlled notifiable condition. The magistrate must be satisfied by the evidence before making the order.

Authorised person entry and inspection powers. Chapter 9, Part 2 gives authorised persons powers to enter premises without a warrant in appropriate circumstances, inspect, take samples, require the production of documents, and take compliance action in respect of public health risk matters.

Pollution notice. Section 313D empowers the chief executive to issue a pollution notice identifying the nature of a pollution event, the affected area, and any required actions to avoid or reduce the effect on public health.

Border restriction directions. Section 362B (a provision extensively considered in COVID-19 litigation, including Knowles v Commonwealth [2022] FCA 741, at paragraph 46) empowers the chief executive, with the Minister's approval, to give public health directions during a public health emergency. Queensland Border Restrictions Directions issued under ss 319, 323 and 362B were the subject of constitutional challenge in the COVID-19 class action proceedings.

The penalty regime is substantial:

• Recklessly putting someone at risk of contracting a controlled notifiable condition (s 143(1)): 200 penalty units or 18 months imprisonment.
• Recklessly transmitting a controlled notifiable condition (s 143(2)): 400 penalty units or 2 years imprisonment.
• Non-compliance with a public health order: 200 penalty units (with enforcement order available as an additional remedy).
• Failure to comply with a public health improvement notice under Chapter 4A: the maximum penalty is the maximum for the underlying provision.
• Various Chapter 2, 4 and 9 offences: penalties ranging from 50 to 400 penalty units.
• Chapter 2, Part 5A (drinking water offences): up to 3,000 penalty units or 2 years imprisonment for the most serious supply-related contraventions; 1,350 penalty units or 2 years imprisonment for related offences.

Section 4 preserves that no contravention of the Act creates a civil cause of action, so enforcement is primarily through the criminal and regulatory channels described above. Local governments play an enforcement role alongside the State chief executive and authorised persons for public health risk matters within their areas.

Notifiable condition notifications. Doctors and laboratory providers must notify the chief executive promptly on diagnosis. The regulation prescribes the form of notification and timelines; these differ by condition type (clinical, provisional, pathological).

Public health emergency duration. A public health emergency order takes effect immediately on signature (s 319(5)) and continues for the period specified in the order. Extensions are possible but subject to the same substantive preconditions.

Controlled notifiable conditions orders. Section 116 requires a sworn application. The magistrate may call for additional information. Orders take effect on the terms set by the magistrate and are subject to review under Chapter 3, Part 8.

Water management plan compliance. Chapter 2A, Part 3 provides for compliance notices and, on non-compliance, enforcement steps. The chief executive may take remedial action and recover costs.

Appeals. Chapter 10, Part 4 provides for appeals from decisions under the Act, including the right to apply to the Queensland Civil and Administrative Tribunal or a court depending on the nature of the decision.

Australian Immunisation Register Act 2015 (Cth). Section 160A of Chapter 5 references the ACI register and the definition of "recognised vaccination provider" under the Commonwealth Act, creating a direct legislative cross-reference for the exclusion of unvaccinated children.

Biosecurity Act 2015 (Cth). The COVID-19 pandemic jurisprudence arising from the Public Health Act 2005 (Qld) engaged the Biosecurity Act extensively. Cases involving both Acts include Swiss Re International SE v LCA Marrickville [2021] FCA 1206 and Knowles v Commonwealth [2022] FCA 741.

Criminal Code (Qld). Section 143(5) notes that the Criminal Code s 317 provides for the crime of intentionally transmitting a serious disease. The Public Health Act 2005 offence under s 143 is the reckless (rather than intentional) counterpart.

National Health and Medical Research Council Act 1992 (Cth). Section 160A references the Australian Immunisation Handbook approved under that Commonwealth Act.

Aged Care Act 1997 (Cth). Section 61A (Chapter 2A) references "approved provider" as defined under the Aged Care Act 1997 for the purpose of water management plan obligations.

Queensland public health emergency regulations. Multiple subordinate instruments have been made under the Act's broad regulation-making powers, particularly for the COVID-19 emergency period. The Public Health (Coronavirus (2019-nCoV)) Amendment Regulation 2020 (Qld) added coronavirus 2019-nCoV to the notifiable conditions list by exercising the power in s 64.

Liquor Act 1992 (Qld) and other industry regulation. The harm minimisation and public health purposes of the Liquor Act 1992 interact with public health objectives, and the chief executive under the Public Health Act 2005 may coordinate with the liquor regulator in relation to alcohol-related health events.

Section 4 - no civil cause of action. Despite extensive obligations on health care providers, a breach of the Act by itself creates no civil cause of action for a person harmed. Victims of, for example, an infection control failure must still establish a negligence or contract claim independently of the Act.

Reckless spread offence does not cover mere vaccination refusal. Section 143(5) expressly provides that a person does not commit an offence under s 143(1) or (2) merely by refusing or failing to be vaccinated against a condition for which there is a recognised and reasonably available vaccine. This preserves a right to refuse vaccination while still being subject to the Act's other obligations.

Distinction between notifiable and controlled notifiable conditions. Not all notifiable conditions trigger the coercive orders regime under Chapter 3, Parts 4 and 5. Only controlled notifiable conditions (prescribed by regulation under s 63) attract examination, behavioural or detention orders. Practitioners should check the current regulation to determine which conditions are "controlled."

Emergency officer powers require a declared emergency. The broad powers in Chapter 8 do not operate continuously. They are conditional on a valid public health emergency declaration under s 319. Actions taken under Chapter 8 without a valid underlying declaration may be challenged as invalid.

Water management plans - prescribed facility definition. The definition of "prescribed facility" in Chapter 2A includes public sector hospitals and facilities with cooling towers. Private hospitals and aged care providers need to confirm whether they fall within the definition and have current plans.

Mandatory reporting ambiguity for cancer. The definition of cancer in s 229 expressly includes skin cancer and non-invasive carcinoma other than types excluded by regulation. Treating clinicians and laboratories should confirm the current regulatory exclusions before assuming a particular skin diagnosis falls outside the notification obligation.

Example 1: COVID-19 public health emergency directions. The Queensland Minister declared a public health emergency under s 319 on 29 January 2020. Emergency officer powers under Chapter 8, Part 6 were then available. The chief executive issued Border Restrictions Directions under ss 323 and 362B. In Knowles v Commonwealth [2022] FCA 741, paragraph 46, the Federal Court set out the text of those provisions and confirmed that the directions were made under lawful authority. Challenges to the constitutional validity of those directions were dismissed.

Example 2: Cooling tower Legionella outbreak. A hospital has a Legionella outbreak traced to its cooling towers. The operator is subject to the water management plan requirements in Chapter 2A. Authorised persons under Chapter 9 may enter the premises, inspect, take samples and require the production of the management plan. An improvement notice may be issued under Chapter 2A, Part 3. If the operator fails to comply, the chief executive may take remedial action and recover costs.

Example 3: Reckless transmission of a controlled notifiable condition. A person who has been notified that they have a controlled notifiable condition (such as tuberculosis prescribed under regulation) continues to engage in behaviour that places others at risk, having been told by the chief executive to avoid that behaviour. They face a maximum penalty of 200 penalty units or 18 months imprisonment under s 143(1). If they actually transmit the condition, the maximum rises to 400 penalty units or 2 years imprisonment under s 143(2). The defence of informed, voluntary consent by the other person may apply in limited circumstances under s 143(3)-(4).

Example 4: Unvaccinated child exclusion. A child care centre has an outbreak of whooping cough, a vaccine-preventable disease. The operator must exclude any child whose immunisation status is not up to date (as defined in s 160A by reference to the Australian Immunisation Handbook). Parents who believe their child has a medical exemption must produce documentation from a recognised vaccination provider. The operator's failure to exclude an ineligible child is a breach of Chapter 5, Division 1AA.

Example 5: Cancer notification. A pathology provider receives a specimen from a patient and the examination indicates a diagnosis of breast cancer. The provider must notify the Queensland Cancer Register under Chapter 6, Part 2 using the prescribed form. The Register is maintained by the chief executive and is used for population health research and policy purposes.