Part 10Controlled notifiable conditions

Part 10—Controlled notifiable conditions Division 1—Preliminary 69—Principles The principles set out in section 14 have particular application to this Part. 70—Declaration of controlled notifiable conditions (1) The regulations may declare a disease or medical condition to be a controlled notifiable condition. (2) The Minister may, if he or she considers it to be necessary in the interests of public health because of urgent circumstances, by notice in the Gazette, declare a disease or medical condition to be a controlled notifiable condition. (3) A regulation or declaration under subsection (1) or (2) may be varied from time to time, or may be revoked, but a declaration of the Minister under subsection (2) will, unless revoked sooner, expire 6 months after publication in the Gazette. (a) does not prevent the disease or medical condition the subject of the declaration being declared to be a controlled notifiable condition by the regulations; and (b) does not prevent the disease or medical condition being the subject of a further declaration of the Minister if the Minister considers that urgent circumstances again warrant the declaration of the disease or medical condition to be a controlled notifiable condition. 71—Chief Public Health Officer to be able to act in other serious cases serious disease, in relation to a particular person, means a disease— (a) which is, or may be, infectious; and (b) which the Chief Public Health Officer reasonably believes to present a serious risk to public health. (2) This section applies to a person if— (a) the Chief Public Health Officer has reason to believe that the person (the relevant person) has, or has been exposed to, a serious disease; and (b) the disease is not a controlled notifiable condition; and (c) the Chief Public Health Officer determines that it is appropriate for action to be taken under this section; and (d) the Chief Public Health Officer serves notice of the determination on the relevant person. (3) In a case where this section applies— (a) the serious disease will, in relation to the relevant person, be taken to be a controlled notifiable condition; and (b) the Chief Public Health Officer may take action under this Part in relation to the relevant person as if the person had a controlled notifiable condition. (4) This section will cease to apply to a relevant person— (a) if the Chief Public Health Officer revokes his or her determination under subsection (2)(c); or (b) at the expiration of 28 days from service of the notice under subsection (2)(d); or (c) if the serious disease is declared to be a controlled notifiable condition under this Part, whichever first occurs. (5) The fact that this section ceases to apply to a person— (a) does not effect any order, requirement or direction that applies in relation to the person immediately before the time that this section ceases to apply if the serious disease that gave rise to the application of this section has been declared to be a controlled notifiable condition under this Division (and is a controlled notifiable condition at the time that the section ceases to apply); and (b) does not prevent the section applying to the person again if the Chief Public Health Officer has a reason to believe that the person is again suffering from, or has been exposed to, another serious disease (and the other requirements of subsection (2) are satisfied). 72—Children (1) If a requirement is imposed under this Part in relation to a child— (a) a parent or guardian of the child who is aware of the requirement must take such steps as are reasonably necessary and available to achieve compliance with the requirement; and (b) any requirement to serve any notice or other document will be satisfied if service is effected on a parent or guardian of the child. (2) The regulations may make other modifications to the operation of this Part in relation to its application to children (and those modifications will have effect according to their terms). (3) A person who fails to comply with subsection (1)(a) is guilty of an offence. (4) In this section— child means a person under 16 years of age; parent includes a person in loco parentis. Division 2—Controls 73—Power to require a person to undergo an examination or test (1) The Chief Public Health Officer may impose a requirement under this section if subsection (2) or (3) applies. (2) This subsection applies if the Chief Public Health Officer has reasonable grounds to believe— (a) that a person has a controlled notifiable condition and the person presents, has presented, or is likely to present, a risk to health through the transmission of a disease constituting that condition; or (b) that an incident has occurred or a circumstance has arisen in which a person could have been exposed to, or could have contracted, a controlled notifiable condition. (3) This subsection applies if— (a) an incident has occurred or a circumstance has arisen, while a caregiver or custodian is acting in that capacity, in which, if any of those involved were infected by a disease constituting a controlled notifiable condition, the disease could be transmitted to the caregiver or custodian; and (b) the Chief Public Health Officer has reasonable grounds to believe that the imposition of a requirement under this section is necessary in the interests of a rapid diagnosis and, if appropriate, treatment of any person involved in the incident or connected with the circumstance (whether or not as a caregiver or custodian). (4) However, the Chief Public Health Officer should not act under this section unless the Chief Public Health Officer considers— (a) that the person has been given a reasonable opportunity to undertake an examination or testing of the kind that will be subject to a requirement under this section but has failed to do so; or (b) that the imposition of a requirement under this section is reasonably necessary for the purposes of a rapid diagnosis and, if appropriate, treatment of the relevant person. (5) A requirement that may be imposed on a person under this section is that the person— (a) present himself or herself at such place and time as may be specified by the Chief Public Health Officer in order to undergo a clinical examination or to undertake (or be the subject of) tests, or both; and (b) comply with any requirement imposed by a person who may conduct the examination or carry out the tests. (6) Subsection (4)(a) does not apply if the person is unconscious or the Chief Public Health Officer considers that the person does not have the capacity to consent to an examination or testing of the relevant kind. (7) If the person is unconscious, subsection (5) is modified so as to allow the Chief Public Health Officer to arrange a clinical examination or tests (or both) for the person. (8) A requirement will be imposed by service of an order on the person unless— (a) the person is unconscious; or (b) the Chief Public Health Officer considers that urgent action is required in the circumstances of the particular case, in which case an oral order may be given. (8a) If an oral order is given under subsection (8)(b), the Chief Public Health Officer must confirm the order by notice in writing served on the person as soon as practicable, but in any event within 72 hours, after giving the order (and a failure to serve a notice in accordance with this subsection will not affect the validity of the order). (9) The testing that may be undertaken under this section may include the provision or taking of a sample of blood, urine or other biological specimen. (10) If— (a) a person is examined or subject to any test under this section; and (b) the examination and any test disclose that the person does not have a controlled notifiable condition, the person is entitled to reasonable reimbursement from the Department for costs and expenses directly incurred by the person in attending for the examination and any test. (11) An amount payable under subsection (10) may be recovered as a debt. (12) The Chief Public Health Officer is entitled to be provided with a report on the outcome of any examination or test conducted under this section (and a person who conducted the examination or test must, at the request of the Chief Public Health Officer, furnish the Chief Public Health Officer with such a report). (13) In this section— caregiver or custodian means— (a) a person who is employed by, or performs work at, a health service; or (b) a person who provides, or who is associated with the provision of, any medical service or other form of service designed to benefit human health; or (c) a person who is employed by, or performs work at, a pathology service; or (d) a person who— (i) removes human tissue from a person, whether alive or dead; or (ii) handles human tissue, under the Transplantation and Anatomy Act 1983; or (e) a police officer; or (f) a legal custodian of a person who is in legal or protective custody and any person who is employed or engaged by a legal custodian in the course of keeping that person in legal or protective custody; or (g) a person who is within a class prescribed by the regulations for the purposes of this definition; health service means a health service within the meaning of the Health Care Act 2008. 74—Power to require counselling (1) If the Chief Public Health Officer has reasonable grounds to believe that a person has, or has been exposed to, a controlled notifiable condition, the Chief Public Health Officer may impose a requirement on the person under this section. (2) However, the Chief Public Health Officer should not act under this section unless satisfied that the person has been given a reasonable opportunity to participate in the relevant counselling or activity but has failed to do so. (3) A requirement will be imposed by service of an order on the person unless the Chief Public Health Officer considers that urgent action is required in the circumstances of the particular case, in which case an oral order may be given. (3a) If an oral order is given under subsection (3), the Chief Public Health Officer must confirm the order by notice in writing served on the person as soon as practicable, but in any event within 72 hours, after giving the order (and a failure to serve a notice in accordance with this subsection will not affect the validity of the order). (4) A requirement that may be imposed on a person under this section is that the person participate in 1 or more of the following: (a) counselling; (b) education; (c) other activities relevant to understanding the controlled notifiable condition or the impact or implications of the controlled notifiable condition. (5) Without limiting subsection (4), the order may specify the type, nature or extent of any counselling, and the type or details of any information that must be provided to the person. 75—Power to give directions (a) the Chief Public Health Officer has reasonable grounds to believe that a person— (i) has a controlled notifiable condition; or (ii) has been exposed to a controlled notifiable condition; or (iii) could have been exposed to a controlled notifiable condition; and (b) the Chief Public Health Officer considers that an order under this section is reasonably necessary in the interests of public health, then the Chief Public Health Officer may give directions to the person under this section. (2) However, the Chief Public Health Officer should not act under this section unless satisfied— (a) that the person has undertaken counselling that is appropriate in the circumstances, or has refused or failed to undertake counselling that has been made reasonably available to the person; or (b) that counselling is not appropriate or necessary in the circumstances of the particular case; or (c) that urgent action is required in the circumstances of the particular case and that counselling can be provided after action is taken under this section. (3) Any direction will be imposed by service of an order on the person unless the Chief Public Health Officer considers that urgent action is required in the circumstances of the particular case, in which case an oral order may be given. (3a) If an oral order is given under subsection (3), the Chief Public Health Officer must confirm the order by notice in writing served on the person as soon as practicable, but in any event within 72 hours, after giving the order (and a failure to serve a notice in accordance with this subsection will not affect the validity of the order). (4) The directions that may be imposed by an order under this section include: (a) a direction that the person remain at a specified place including, without limitation, a hospital or quarantine facility and, if considered to be appropriate by the Chief Public Health Officer, that the person remain isolated; (b) a direction that the person refrain from carrying out specified activities (for example, without limitation, employment, use of public transport or participation in certain events), either absolutely or unless specified conditions are satisfied; (c) a direction that the person refrain from visiting a specified place, or a place within a specified class, either absolutely or unless specified conditions are satisfied; (d) a direction that the person refrain from associating with specified persons or specified classes of persons; (e) a direction that the person take specified action to prevent or minimise any health risk that may be posed by the person; (f) a direction that the person attend meetings and provide such information as may be reasonably required in the circumstances; (g) a direction that the person place himself or herself under the supervision of a member of the staff of the Department or a medical practitioner or other health professional nominated by the Chief Public Health Officer and obey the reasonable directions of that person; (h) a direction that the person submit himself or herself to examination by a medical practitioner nominated by the Chief Public Health Officer at such intervals as the Chief Public Health Officer may require; (i) a direction that the person undergo specified medical treatment, including at a specified place and time (or times); (j) such other direction as to the person's conduct or supervision that the Chief Public Health Officer considers to be appropriate in the circumstances. (5) The Chief Public Health Officer— (a) must not impose a direction under subsection (4)(h) or (i) if the Chief Public Health Officer is satisfied that the person has a conscientious objection to the relevant examination or treatment (as the case may be) due to a religious, cultural or other similar ground; and (b) must not impose a direction under subsection (4)(i) if the treatment would impose a serious threat to the person's health. (6) However, if a direction under subsection (4)(h) or (i) would relate to a child, the Chief Public Health Officer may make a direction under either (or both) paragraphs despite a conscientious objection of a parent or guardian of the child if the Chief Public Health Officer considers that the relevant examination or treatment (as the case may be) is in the best interests of the child (and reasonably necessary in the interests of public health). 76—Review by Tribunal (1) A person who is the subject of an order, requirement or direction of the Chief Public Health Officer under a preceding section under this Division (including an order, requirement or direction as varied under this Division) may apply to the Tribunal for a review of the order, requirement or direction. (2) An application under this section may be instituted at any time during the currency of the order, requirement or direction (and, subject to subsection (3), more than 1 application may be made while the order, requirement or direction is in force). (3) If a second or subsequent application is made with respect to the same order, requirement or direction, the Tribunal must first consider whether there has been a significant change in the material circumstances of the case and should, unless the Tribunal in its discretion determines otherwise, decline to proceed with the application (if it appears that the proceedings would simply result in a rehearing of the matter without such a change in circumstances). (5) The Tribunal is to hear and determine an application under this section as soon as is reasonably practicable. 77—Power to require detention (1) The Chief Public Health Officer may make an order under this section if— (a) the Chief Public Health Officer has reasonable grounds to believe that a person— (i) has a controlled notifiable condition; or (ii) has been exposed to a controlled notifiable condition; or (iii) could have been exposed to a controlled notifiable condition; and (b) either— (i) the person is or has been the subject of 1 or more directions under section 75 and has contravened or failed to comply with a direction; or (ii) the Chief Public Health Officer considers that there is a material risk the person would not comply with 1 or more directions under section 75 if they were to be imposed; or (iii) the Chief Public Health Officer is satisfied that urgent action is required in the circumstances of the particular case such that a direction under section 75 is not appropriate; and (c) the Chief Public Health Officer considers that the person presents, or could present, a risk to public health and that action under this section is justified. (2) However, the Chief Public Health Officer should not act under this section unless satisfied— (a) that the person has undertaken counselling that is appropriate in the circumstances, or has refused or failed to undertake counselling that has been made reasonably available to the person; or (b) that counselling is not appropriate in the circumstances of the particular case; or (c) that urgent action is required in the circumstances of the particular case and that counselling can be provided after action is taken under this section. (3) An order under this section must be served on the person unless the Chief Public Health Officer considers that urgent action is required in the circumstances of the particular case, in which case an oral order may be given. (3a) If an oral order is given under subsection (3), the Chief Public Health Officer must confirm the order by notice in writing served on the person as soon as practicable, but in any event within 72 hours, after giving the order (and a failure to serve a notice in accordance with this subsection will not affect the validity of the order). (4) An order under this section will be that the person be detained at a specified place while the order is in force. (5) An order under this section may contain other requirements relating to the person's conduct or supervision that the Chief Public Health Officer considers to be appropriate in the circumstances. (5a) For the purposes of giving effect to an order made under this section in respect of a person, the Chief Public Health Officer or an authorised person may— (a) apprehend and take the person to the place at which the person is to be detained under the order; and (b) restrain the person and otherwise use force in relation to the person as reasonably required in the circumstances; and (c) be assisted by such persons as may be necessary or desirable in the circumstances. (6) Subject to this section— (a) an order made on the grounds specified in subsection (1)(a)(i) or (ii)— (i) will be for an initial period not exceeding 30 days; and (ii) will be able to be extended from time to time by the Chief Public Health Officer for periods not exceeding 60 days; and (b) an order made on the grounds specified in subsection (1)(a)(iii)— (i) will be for an initial period not exceeding 48 hours; and (ii) will be able to be extended from time to time by the Chief Public Health Officer for periods not exceeding 30 days. (7) If the Chief Public Health Officer considers that it will be necessary to extend an order made on the grounds specified in subsection (1)(a)(i) or (ii) beyond an initial period of 30 days, the Chief Public Health Officer must, before the expiration of that period, apply to the Supreme Court for a review of the order. (8) If an application is made under subsection (7)— (a) the order may be extended beyond the initial period of 30 days pending the outcome of the application to the Supreme Court; and (b) the Supreme Court should seek to hear and determine the application as soon as is reasonably practicable after it is made to the Court; and (c) the Supreme Court may, on hearing the application, confirm, vary or revoke the order that has been made by the Chief Public Health Officer. (8a) If the Chief Public Health Officer considers that it will be necessary to extend an order made on the grounds specified in subsection (1)(a)(iii) beyond an initial period of 48 hours, the Chief Public Health Officer must, before the expiration of that period, apply to the Magistrates Court for a review of the order. (8b) If an application is made under subsection (8a)— (a) the order may be extended beyond the initial period of 48 hours pending the outcome of the application to the Magistrates Court; and (b) the Magistrates Court should seek to hear and determine the application as soon as is reasonably practicable after it is made to the Court; and (c) the Magistrates Court may, on hearing the application, confirm, vary or revoke the order that has been made by the Chief Public Health Officer. Note— See also the power in subsection (13) to determine examination periods. (9) Furthermore, a person must not be detained under this section for a period exceeding 6 months in total unless the Supreme Court has, on application by the Chief Public Health Officer made for the purposes of this subsection, confirmed the order (with or without any variation made by the Court). (10) The Supreme Court will be constituted of a single Judge for the purposes of proceedings under subsections (7), (8) and (9). (11) A Judge, in acting under a preceding subsection, may make any consequential or ancillary order or direction, or impose any conditions, the Judge considers appropriate (including that the relevant person be released pending the outcome of the hearing of the matter (if the Judge thinks fit) on such conditions, if any, as the Judge may determine, or that the matter be brought back before the Supreme Court constituted of a single Judge at a time, or within a period or periods, specified by the Judge (and, if a matter is brought back before the Court, then a Judge may make such orders as the Judge thinks fit)). (12) The preceding subsections do not limit the ability of a person to apply for a review of an order under this section under section 78. (13) A person who is detained under this section must be examined by a medical practitioner at intervals not exceeding— (a) 30 days; or (b) such shorter period or periods as a Supreme Court Judge or Magistrate may determine having regard to the nature of the controlled notifiable condition and the extent to which the person has been affected by that condition. (14) The Chief Public Health Officer must facilitate any reasonable request for communication made by a person detained under this section. (15) In this section— authorised person means— (a) a police officer; or (b) a person authorised by the Chief Public Health Officer to act as an authorised person under this section. 78—Review of detention orders by Supreme Court (1) A person who is the subject of an order of the Chief Public Health Officer under section 77 may apply to the Supreme Court for a review of the order. (2) An application under this section may be instituted at any time during the currency of the order (and, subject to subsection (3), more than 1 application may be made while the order is in force). (3) If a second or subsequent application is made under this section with respect to the same order, the Supreme Court must first consider whether there has been a significant change in the material circumstances of the case and should, unless the Supreme Court in its discretion determines otherwise, decline to proceed with the application (if it appears that the proceedings would simply result in a rehearing of the matter without such a change in circumstances). (4) Subject to complying with subsection (3), the Supreme Court may, on hearing an application under this section— (a) confirm, vary or revoke the order, or substitute any order; (b) remit the subject matter to the Chief Public Health Officer for further consideration; (5) The Supreme Court will be constituted of a single Judge for the purposes of this section. 79—Warrants (1) If the Chief Public Health Officer considers it necessary to do so, the Chief Public Health Officer may apply to a magistrate— (a) for the issue of a warrant for the apprehension by an authorised person of a person— (i) who has failed to comply with an order, requirement or direction under this Division; or (ii) who is the subject of an order that has not been served on the person despite reasonable efforts to do so; or (iii) who— (A) has a controlled notifiable condition, has been exposed to a controlled notifiable condition or could have been exposed to a controlled notifiable condition; and (B) is engaging in, or has engaged in, conduct that creates a risk to others in respect of the controlled notifiable condition. (b) for the person to whom the warrant relates— (i) to be subject to any examination, test or other action required by the order, requirement or direction to which the warrant relates; or (ii) to be brought before a magistrate. (2) If or when a person is brought before a magistrate, the magistrate may take such action as the magistrate thinks appropriate in the circumstances including (without limitation) action to achieve compliance with the relevant order, requirement or direction, including— (a) by making such orders as the magistrate thinks fit; (b) by issuing a warrant for the detention of the relevant person until the person is willing to comply with the order, requirement or direction. (3) Without limiting subsection (1) or (2), a warrant under this section may provide that the person be held in a place of quarantine or isolation— (a) for a period determined by the magistrate, or from time to time subject to periodic reviews by a magistrate; or (b) until otherwise determined by a magistrate. (4) An authorised person is authorised to take any action contemplated by a warrant under this section (including to take a person to any place and to restrain a person while any examination or testing is undertaken (including testing involving the taking of a blood, urine or other biological sample)). (5) Without limiting subsection (4), reasonable force may be used in the execution of a warrant under this section. (6) In the exercise of powers under a warrant, an authorised person may be accompanied by such assistants as may be necessary or desirable in the circumstances. (7) A right of appeal exists to the Supreme Court (constituted of a single judge) against a decision of a magistrate under this section. (8) On an appeal, the Supreme Court may— (a) confirm, vary or quash the magistrate's decision; (b) make any order that the justice of the case may require. (9) Subject to an appeal, an order of a magistrate under this section will be taken to be an order of the Magistrates Court. (10) In this section— authorised person means— (a) a police officer; or (b) a person authorised by the Chief Public Health Officer to act as an authorised person under this section. 80—General provisions relating to orders, requirements and directions (1) An order, requirement or direction under this Division may be given or imposed on a person on 1 or more occasions. (2) Any combination of orders, requirements or directions under this Division may be given or imposed on a person at any time. (3) The Chief Public Health Officer may at any time, by notice served on a person, vary or rescind an order, requirement or direction under this Division. (4) If the Chief Public Health Officer serves an order or notice on a person under this Division, the order or notice must be accompanied by a notice in a form determined by the Chief Public Health Officer that— (a) sets out the grounds on which the order or notice is made; and (b) contains a statement of the person's rights under this Act (including a person's right to apply for a review under this Division); and (c) contains any other information determined by the Chief Public Health Officer to be relevant or appropriate. 81—Duty to comply A person who is the subject of an order, requirement or direction under this Division must not, without reasonable excuse, contravene or fail to comply with the order, requirement or direction. Division 3—Related matters 82—Advisory Panels (1) The Chief Public Health Officer may establish a Case Management and Co‑ordination Advisory Panel (an Advisory Panel) to advise the Chief Public Health Officer on the management of a person who is, or a group of persons who are, the subject of an order, requirement or direction under this Part. (2) An Advisory Panel will consist of— (a) a legal practitioner; and (b) a person who is considered by the Chief Public Health Officer to be an expert in infectious diseases; and (c) any other person who is considered by the Chief Public Health Officer to be an appropriate member of the Advisory Panel. (3) A person will be appointed to an Advisory Panel on conditions determined by the Chief Public Health Officer after consultation with the Minister. (4) An Advisory Panel must perform its functions— (a) after taking into account any determination of the Chief Public Health Officer as to the scope or performance of its functions in the circumstances of the particular case; and (b) in accordance with any protocols under subsection (5). (5) The Minister may, as the Minister thinks fit, determine various protocols that must be complied with by Advisory Panels in the performance of their functions. (6) Information (including confidential information) may be disclosed to an Advisory Panel in connection with the performance of its functions without the breach of any law or principle of professional ethics. (7) A member of an Advisory Panel must not make use of or disclose information gained as a result of, or in connection with, the functions of the Advisory Panel except— (a) to the extent necessary for the proper performance of those functions; or (b) to the extent allowed by the regulations. 83—Interstate orders corresponding law means a law of another State declared by the regulations to be a corresponding law; order includes a notice, requirement or direction; State includes a Territory. (2) If— (a) a person is subject to an order under a corresponding law; and (b) the terms of an order provide for matters that could be the subject (wholly or substantially) of an order under this Part; and (c) the person enters the State, then, subject to subsections (3) and (4), the order will have effect in this State as if the order had been made under this Part. (3) An order that has effect in this State under subsection (2)— (a) may, by notice served on the relevant person, be varied by the Chief Public Health Officer, as it applies in this State, in such manner as the Chief Public Health Officer thinks fit; and (b) will cease to have effect in this State if— (i) the order expires or is revoked under the corresponding law; or (ii) the order is revoked by the Chief Public Health Officer acting under this provision. (4) The cessation of the operation of an order under this section does not prevent an order subsequently being made under this Part in relation to the same person. 84—Protection of information A document held or produced by the Chief Public Health Officer, or any other person acting in the course of official duties, for the purposes of this Part that relates to a particular person is not subject to access under the Freedom of Information Act 1991.