Part 12Notices and emergency situations

Part 12—Notices and emergency situations Division 1—Interpretation 91—Interpretation In this Part— relevant authority means— (b) a council. Division 2—Notices and emergencies 92—Notices (1) A relevant authority may issue a notice under this section for the purpose of— (a) securing compliance with a requirement imposed by or under this Act (including the duty under Part 6 or a requirement imposed under a regulation or a code of practice under this Act); or (b) averting, eliminating or minimising a risk, or a perceived risk, to public health. (2) Before issuing a notice to secure compliance with the general duty under Part 6, a relevant authority— (a) must have regard to— (i) the number of people affected, or potentially affected, by the breach of the duty; (ii) the degree of harm, or potential degree of harm, to public health on account of the breach of the duty; (iii) any steps that a person in breach of the duty has taken, or proposed to take, to avoid or address the impact of the breach of the duty, and may have regard to such other matters as the relevant authority thinks fit; and (b) subject to this section, must give the person to whom it is proposed that the notice be given a preliminary notice in writing— (i) stating the proposed action, including the terms of the proposed notice and the period within which compliance with the notice will be required; and (ii) stating the reasons for the proposed action; and (iii) inviting the person show, within a specified time (of a reasonable period), why the proposed action should not be taken (by making representations to the relevant authority or a person nominated to act on behalf of the relevant authority). (3) In a case where subsection (2)(b) applies, a relevant authority may, after considering representations made within the time specified under subsection (2)(b)— (a) issue a notice in accordance with the terms of the original proposal; or (b) issue a notice with modifications from the terms of the original proposal; or (c) determine not to proceed further under this section. (4) A relevant authority— (a) is not required to give notice under subsection (2)(b) if it considers that urgent or immediate action is required in the circumstances of the particular case; and (b) is not required to give further notice before issuing a notice with modifications under subsection (3)(b). (5) A notice under this section— (a) subject to subsection (6), must be in the form of a written notice served on the person to whom it is issued; and (b) must specify the person to whom it is issued (whether by name or by a description sufficient to identify the person); and (c) may direct 2 or more persons to do something specified in the notice jointly; and (d) without limiting any other provision, in the case of a notice that relates to the condition of any premises, may be issued to any person who— (i) is the owner or occupier of the premises; or (ii) has the management or control of the premises; or (iii) is the trustee of a person referred to in subparagraph (i) or (ii), or is managing the affairs of such a person on some other basis; and (e) must state the purpose for which the notice is issued and give notice of the requirement or the risk to which it relates; and (f) may impose any requirement reasonably required for the purpose for which the notice is issued including 1 or more of the following: (i) a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from a relevant authority; (ii) a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action in a specified way, and within a specified period or at specified times or in specified circumstances; (iv) a requirement that the person take action to prevent, eliminate, minimise or control any specified risk to public health, or to control any specified activity; (v) a requirement that the person comply with any specified code or standard prepared or published by a body or authority referred to in the notice; (vi) a requirement that the person undertake specified tests or monitoring; (vii) a requirement that the person furnish to a relevant authority specified results or reports; (viii) a requirement that the person prepare, in accordance with specified requirements and to the satisfaction of the relevant authority, a plan of action to secure compliance with a relevant requirement or to prevent, eliminate, minimise or control any specified risk to public health; (ix) a requirement prescribed under or for the purposes of the regulations; and (g) must state that the person may, within 14 days, apply for a review of the notice under the provisions of this Act. (6) An authorised officer may, if of the opinion that urgent action is required, issue an emergency notice imposing a requirement of a kind referred to in subsection (5)(f) as reasonably required in the circumstances. (7) An emergency notice may be issued orally (and without compliance with a requirement to give preliminary notice) but, in that event, the person to whom the notice is issued must be advised forthwith of the person's right to apply to the Tribunal for a review of the order. (8) If an emergency notice is issued by an authorised officer, the notice will cease to have effect on the expiration of 72 hours from the time of issuing unless confirmed by a notice issued by a relevant authority and served on the relevant person. (9) A relevant authority may, by written notice served on a person to whom a notice under this section has been issued by the relevant authority, vary or revoke the notice. (10) A person to whom a notice is issued under this section must not, without reasonable excuse, fail to comply with the notice. (11) A person must not hinder or obstruct a person complying with a notice under this section. (12) The Minister may, as the Minister thinks fit, determine various protocols that should be taken into account by a relevant authority under this section. (13) A protocol may include guidance as to which relevant authority should act under this section in various classes of cases. (14) The Minister should not adopt or vary a protocol under this section except after consultation with— (a) the Chief Public Health Officer; and (b) the LGA. (15) A relevant authority is not required to comply with any other procedure, or to hear from any other person, except as provided by this section before it issues a notice under this section. 93—Action on non‑compliance with notice (1) If the requirements of a notice under this Part are not complied with, a relevant authority may take any action required by the notice. (2) Action to be taken by a relevant authority under subsection (1) may be taken on the relevant authority's behalf by an authorised officer, a member of the Department, or another person authorised by the relevant authority for the purpose. (3) A person taking action under this section may enter any relevant premises at any reasonable time. (4) The reasonable costs and expenses incurred by a relevant authority in taking action under this section may be recovered by the relevant authority as a debt from the person who failed to comply with the requirements of the notice. (5) If an amount is recoverable from a person by a relevant authority under this section, the relevant authority may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid. (6) In addition, where an amount recoverable under this section relates to action taken in relation to any land (including a building or other structure on land), the amount will be a charge on the land in favour of the relevant authority in accordance with a scheme prescribed by the regulations (with a priority determined in accordance with the regulations). 94—Action in emergency situations (1) If an authorised officer believes, on reasonable grounds— (a) that a situation is creating, or likely to create, a risk to public health; and (b) that immediate action is required, the authorised officer may, after giving such notice (if any) as may be reasonable in the circumstances, take action or cause action to be taken as necessary to avert, control or eliminate the risk. (2) In the exercise of powers under this section, an authorised officer has, in addition to any other powers of an authorised officer under this Act, power to— (a) enter and take possession of any premises or vehicle (taking such action as is reasonably necessary for the purpose); and (b) seize, retain, move or destroy or otherwise dispose of any substance or thing. (3) The action taken under subsection (2) may include the use of force to enter any premises or vehicle without a warrant if the authorised officer believes, on reasonable grounds, that the circumstances requires such a step to be taken. (4) Action may be taken under this section whether or not a notice has been given to a person in relation to the risk under a preceding section. (5) The reasonable costs and expenses incurred by an authorised officer in taking action under this section may be recovered by— (a) in the case of action taken by a State authorised officer—the Crown; or (b) in the case of action taken by a local authorised officer—the relevant council, from any person who caused the risk to which the action relates, as a debt. Division 3—Reviews and appeals 95—Reviews—notices relating to general duty (1) This section applies if a person has been issued with a notice under this Part to secure compliance with the duty under Part 6. (2) A person to whom a notice has been issued may apply for a review of the notice under this section. (3) The review will be to the Public Health Review Panel (the Review Panel) constituted under this section. (4) The application must be made within 14 days after the notice is served on the person unless the Review Panel, in its discretion, allows an extension of time. (5) Subject to a determination of the Review Panel to the contrary in relation to a particular matter, the operation of a notice subject to a review is not suspended pending the outcome of the proceedings. (6) A review under this section is to be conducted as a full review of the matter to which the review relates. (7) For the purposes of this section, the Review Panel will from time to time, in relation to a particular review, be constituted by— (a) the Chief Public Health Officer (who will be the presiding member); and (b) 2 members of SAPHC selected by the Chief Public Health Officer for the purposes of the particular review; and (c) any other person or persons selected by the Chief Public Health Officer in order to provide additional expertise on the panel. (8) If the review relates to a notice issued by the Chief Public Health Officer, a delegate of the Chief Public Health Officer must act in place of the Chief Public Health Officer under subsection (7). (9) A reference to a member of SAPHC under subsection (7)(b) extends to a deputy of a member of SAPHC. (10) 3 members of the Review Panel constitute a quorum of the Review Panel. (11) A decision carried by a majority of the votes cast by the members of the Review Panel present at any proceedings of the Review Panel is a decision of the Review Panel. (12) Each member present at a meeting of the Review Panel is entitled to 1 vote on a question arising for decision and, in the event of an equality of votes, the person presiding has a second, or casting, vote. (13) A party is entitled to appear personally or, with leave of the Review Panel, by representative, in proceedings before the Review Panel. (14) The Review Panel may proceed to determine a matter in the absence of a party if the party has had notice of the time and place of the proceedings and fails to appear. (15) The Review Panel may, on its own initiative or on application by a party to the relevant proceedings— (a) dismiss or determine any proceedings that appear— (i) to be frivolous or vexatious; or (ii) to have been instituted for the purpose of delay or obstruction, or for some other improper purpose; (b) bring any proceedings to an end that appear— (i) to be more appropriately suited to proceedings before the Tribunal rather than the Review Panel; or (ii) to be unable to be satisfactorily resolved (or resolved within a reasonable period) by proceedings before the Review Panel; or (c) bring any proceedings to an end for any other reasonable cause. (16) In any proceedings, the Review Panel is not bound by the rules of evidence but may inform itself about any matter relating to the proceedings in such manner as it thinks fit. (17) The Review Panel may, on hearing any proceedings under this section— (a) confirm, vary or revoke any requirement to which the review relates and, if appropriate, discharge the relevant notice; (b) substitute any requirement or notice that could have been made or given in the first instance; (c) remit the subject matter to the relevant authority for further consideration; (d) dismiss the matter; (e) make an order for costs, but only to the extent that may be necessary in the interests of justice; (f) make any consequential or ancillary order or direction, or impose any conditions, that it considers appropriate. (18) The Review Panel is to hear and determine an application under this section as soon as is reasonably practicable and in any event within 2 months unless the Chief Public Health Officer allows an extension of time in a particular case. 96—Review by Tribunal (1) A person who has been issued with a notice under this Part (including a notice to secure compliance with the duty under Part 6) may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for review— (a) of the notice; or (b) if review proceedings have been taken under section 95—of the outcome of the review (including any order or other matter made or imposed at the end of the proceedings on the review). (2) To avoid doubt, a person who has been issued with a notice to secure compliance with the general duty may apply to the Tribunal for a review under this section without the need to have already applied to the Review Panel for review of the notice under section 95. (3) A council may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for a review of the outcome of review proceedings by the Review Panel under section 95. (4) An application for review must be made within 14 days after— (a) in the case of a review under subsection (1)(a)—the notice is served on the person; (b) in the case of a review under subsection (1)(b) or (3)—the review proceedings under section 95 end. (5) A relevant authority is entitled to be a party to any proceedings under this section.