Public Health Act 2016

The Act binds the Crown in right of Western Australia (section 5). It directly affects:

• All persons in Western Australia who may create risks to public health through their activities.
• Health practitioners (medical practitioners, nurses, pathologists) who have notification obligations under Part 9.
• Businesses and individuals who operate registrable or licensable health-related activities under Part 8.
• Local governments, which have specific public health functions under Part 2, Division 2.
• Persons diagnosed with or suspected of having notifiable infectious diseases and who may be subject to public health orders or test orders.
• Emergency officers and police officers during declared public health states of emergency.
• Owners and occupiers of premises that may be entered and inspected under Part 16.

General public health duty (section 34): Every person must take all reasonable and practicable steps to prevent foreseeable harm to public health. The standard considers: potential impact of failure; environmental, social, economic and practical implications; degrees of risk; and nature, extent, and duration of harm.

Notification obligations (Part 9, Division 2): When a practitioner diagnoses or suspects a notifiable infectious disease or a notifiable disease-related condition, the practitioner must notify the Chief Health Officer. Section 95 makes failure to notify an offence. The notification must be made in the form, manner, and time required by the Act or regulations.

Duty to inform patients (Part 9, Division 3): Practitioners who diagnose a notifiable infectious disease must provide patients with information about the disease, transmission, and steps to reduce transmission risk. Failure to provide this information is an offence (section 98).

Registration requirements (Part 8): Persons carrying on registrable activities must be registered. Carrying on an unregistered registrable activity is an offence (section 67). Similarly, persons carrying on licensable activities must hold an activity licence (section 77).

Compliance with public health orders and test orders: A person subject to a public health order must comply with it. Failure to comply with a test order is an offence (section 104).

Compliance with emergency officer directions: During a public health state of emergency, persons must comply with emergency officer directions regarding movement (section 180), evacuation, and use of premises or property.

Chief Health Officer: Broad regulatory and administrative powers including: declaring notifiable diseases and related conditions (section 90); making test orders (section 100); making public health orders (section 116); issuing improvement notices; making and amending public health emergency management plans (section 165); recommending to the Minister that a public health state of emergency be declared.

Emergency powers (sections 179-191): During a declared public health state of emergency, emergency officers may:

• Require a person to provide identifying particulars (section 179).
• Direct or prohibit movement of persons, animals, and vehicles (section 180).
• Close roads, access routes, and waterways (section 180).
• Direct evacuation and removal of persons, animals, and vehicles (section 180).
• Use vehicles in any place and circumstances despite any other law (section 181).
• Take control of or make use of any premises or property (section 182).
• Take control of or make use of any vaccine or drug (section 183).

Section 182(2) allows premises and property to be commandeered from inside or outside the declared emergency area. An emergency officer who takes control of premises must give written notice to the owner or occupier within 7 days (section 182(5)).

Minister's emergency declaration power (section 167): The Minister may declare a public health state of emergency for the whole State or part of it. The declaration must be based on advice from the Chief Health Officer (who must first consult with the State Emergency Coordinator) and the Minister must be satisfied that a public health emergency has occurred, is occurring, or is imminent and that extraordinary measures are required.

Enforcement agencies and authorised officers: May exercise various inspection, compliance, and enforcement powers under Parts 14-16.

Local governments: Local governments have specific public health functions including appointment of environmental health officers and local public health planning obligations (Part 5).

Serious public health risk (section 37): Knowingly causing or being likely to cause a serious public health risk: $250,000 fine and 3 years' imprisonment, plus daily penalty of $50,000. Recklessness: $100,000 and 2 years' imprisonment, plus daily penalty of $20,000.

Material public health risk (section 38): Knowingly causing or being likely to cause a material risk: $50,000, plus daily penalty of $10,000. Recklessness: $25,000, plus daily penalty of $5,000.

Failure to notify notifiable infectious disease (section 95): An offence. Penalty amount set by regulation.

Failure to provide patient information (section 98): An offence.

Carrying on unregistered registrable activity (section 67): An offence.

Unlicensed practice of licensable activity (section 77): An offence.

Failure to comply with test order (section 104): An offence.

Improvement notices and enforcement orders (Part 14): The Act provides for issue of improvement notices requiring compliance with the general public health duty and enforcement orders requiring specific action. Failure to comply with an improvement notice or enforcement order may be an offence and may also be the subject of court enforcement.

Compensation (Part 13): The Act provides for compensation to owners and occupiers of premises or property taken or damaged by emergency officers during a declared emergency (section 203 and following).

Notifiable disease notification: The form, timing, and manner of notification are set by the Act and regulations. Notifications must be made as soon as reasonably practicable after the practitioner becomes aware of the disease or condition.

Test orders (section 101): The Chief Health Officer must follow the process in section 101 before making a test order. An explanation of the order must be given to the person (section 102). An affected person may seek review by the State Administrative Tribunal (section 109).

Public health state of emergency declaration (section 167(3)): The declaration must state the nature of the public health emergency, the area to which it applies, and the time from which it operates. The duration is limited (typically 14 days initially) and may be extended.

Infectious disease extreme circumstance declaration (Part 12A): Available for a declared or non-declared emergency where the infection level in the community necessitates extreme measures. Lower threshold than a full public health state of emergency.

Enforcement action timeline: Improvement notices must specify a reasonable period for compliance. Enforcement orders may be more immediate.

Emergency Management Act 2005 (WA): Section 164 establishes that the Public Health Act and the Emergency Management Act can operate concurrently. A state of emergency under the Emergency Management Act does not prevent a public health state of emergency declaration, and vice versa. Neither limits the other.

Biosecurity Act 2015 (Cth): The national biosecurity emergency framework and the State public health emergency framework are distinct but can operate simultaneously. The FCAFC in Rockment Pty Ltd v AAI Limited [2020] FCAFC 228 considered the interaction of WA public health state of emergency declarations with insurance policy exclusions referencing biosecurity emergency declarations under the Commonwealth Biosecurity Act.

Mandatory Testing (Infectious Diseases) Act 2014 (WA): Section 114 provides that Part 9, Division 4 (test orders) is not limited by this Act.

State Administrative Tribunal Act 2004 (WA): Review rights under section 109 (test orders) and sections 75, 85, 109 (registration, licensing, test orders) are exercised in the State Administrative Tribunal.

Criminal Investigation (Identifying People) Act 2002 (WA): Emergency officers may exercise powers under this Act to obtain identifying particulars during a public health state of emergency (section 179).

General duty is not an offence, but grounds for regulatory action: Section 35 explicitly says a failure to comply with the general public health duty does not of itself give rise to any right or remedy or constitute an offence. However, that failure can ground an improvement notice or enforcement order. Practitioners and businesses who assume that a non-criminal duty is practically unenforceable may be surprised when improvement notices are issued.

Emergency powers extend outside the emergency area: Section 182(2) expressly allows emergency officers to take control of or use premises or property outside the declared emergency area where necessary for emergency management. This has significant implications for supply chains, distribution facilities, and medical stockpiles located outside the declared area.

7-day notice requirement for commandeered property: Section 182(5) requires emergency officers to give written notice to owners and occupiers of commandeered property within 7 days. Failure to do so does not invalidate the emergency action but may affect compensation claims under Part 13.

Compensation for acquired property: Part 13 provides for compensation for property taken or damaged during a declared emergency. Compensation is not automatic; a claim must be made. Section 203 and following set out the claims process.

Notification obligations on practitioners: Part 9 notification obligations apply to practitioners as individuals, not just to hospitals or clinics. A medical practitioner in private practice who fails to notify is personally at risk of prosecution.

Insurance implications of public health emergency declarations: Rockment Pty Ltd t/a Vanilla Lounge v AAI Limited [2020] FCAFC 228 illustrates that public health emergency declarations can trigger insurance policy exclusions or conditions. Businesses insuring against COVID-19-related business interruption losses faced insurance exclusions that turned on the cause of loss (the public health emergency declaration rather than the biosecurity emergency).

Serious public health risk offence: A food business operator knowingly continues operating despite being aware that contaminated product has left the premises and is likely to cause a serious public health risk (food poisoning epidemic). The business faces a fine of up to $250,000 plus daily penalties of $50,000 for each day the conduct continues after notification.

Emergency commandeering of medical supplies: During a declared public health state of emergency for a pandemic, an emergency officer determines that a pharmaceutical distributor holds a supply of antiviral drugs needed for immediate deployment. The officer takes control of the drugs under section 183 and directs the distributor to deliver them to specified health facilities. The distributor is entitled to compensation under Part 13.

Notifiable disease notification failure: A general practitioner diagnoses two patients with a new strain of influenza that has been declared a notifiable infectious disease but fails to notify the Chief Health Officer within the required time. The practitioner has committed an offence under section 95 and may face prosecution.

Public health order for infectious individual: A person diagnosed with active tuberculosis refuses to comply with a treatment plan and continues to attend crowded public places. The Chief Health Officer makes a public health order under section 116 directing the person to undergo treatment and to remain in isolation. Non-compliance with the order is an offence.