The Act gives local governments the authority to decide whether fluoride is added to public potable water in their area and requires public potable water suppliers to implement those decisions (s.7). Enforcement, inspection, sampling and remedial powers are vested in the chief executive and authorised persons (pts 5–6).
Local governments that cause a change must pay the supplier’s compliance costs (s.9); the State indemnifies suppliers for legal costs for actions under s.7 (s.96). The Act creates offences, sets penalties and limits civil claims against suppliers (ss.14,59,92–95).
This Act establishes a statutory framework for decisions about the fluoridation of public potable water supplies in Queensland, allocates responsibilities between local governments and public potable water suppliers, creates inspection and enforcement powers, prescribes analytical processes for samples, and sets out liability, indemnity and evidentiary rules connected to fluoridation activities.
Mechanically, the statutory scheme works as follows. The Act’s stated object is to promote oral health by the safe fluoridation of public potable water supplies (s 4). Local governments retain the decision-making role to require fluoride to be added to, or to cease being added to, the water supply that supplies potable water to their community when satisfied that the decision is in the best interests of the community (s 7). If the local government is not itself the public potable water supplier, it must give notice of its decision to the supplier; the supplier must then add, continue to add, cease to add or not add fluoride according to the decision (s 7(2)-(4)). The Act requires the public potable water supplier to add fluoride only in a form prescribed by regulation and to comply with any regulatory requirements about addition and maintaining fluoride levels (s 12). The Act also imposes a notification regime: local governments must notify the chief executive and publish the fluoridation decision; public potable water suppliers must give a fluoridation notice to the chief executive and publish it at least 30 days before adding or ceasing to add fluoride (s 13).
For monitoring and enforcement the Act appoints authorised persons (chief executive appointees) with investigative powers (Pt 5, Divs 1-2). Authorised persons may enter places containing public potable water supplies or related equipment (s 33), conduct searches, take samples for analysis (s 40), require production of documents (s 54) and issue remedial notices to public potable water suppliers requiring contraventions to be remedied (s 59). If remedial notices are not complied with, the chief executive may take necessary action to remedy the contravention and recover reasonable costs from the supplier (ss 60-61). The Act prescribes seizure, retention, forfeiture, destruction and return procedures for seized things (ss 43-53). It also creates criminal offences and civil penalties for obstructing authorised persons, providing false or misleading information or documents, impersonating authorised persons and unauthorised addition of fluoride (for example ss 14, 46, 65-68).
Current sections
Direct links to the current provisions in Water Fluoridation Act 2008.
133
pt.1
Preliminary
Preliminary
pt.1-div.1
Introduction
Introduction
sec.1
Short title
sec.1 Short title
This Act may be cited as the Water Fluoridation Act 2008 .
sec.2
Commencement
sec.2 Commencement
This Act commences on a day to be fixed by proclamation.
sec.3
Act binds all persons
sec.3 Act binds all persons
This Act binds all persons, including the State.
However, nothing in this Act makes the State liable to be prosecuted for an offence.
(sec.3-ssec.1) This Act binds all persons, including the State.
(sec.3-ssec.2) However, nothing in this Act makes the State liable to be prosecuted for an offence.
pt.1-div.2
Object
Object
sec.4
Object of Act
sec.4 Object of Act
The object of this Act is to promote good oral health in Queensland by the safe fluoridation of public potable water supplies.
s 4 amd 2012 No. 39 s 80
pt.2
Interpretation
Interpretation
sec.5
Definitions
sec.5 Definitions
The dictionary in the schedule defines particular words used in this Act.
sec.6
Section sec.6
s 6 om 2012 No. 39 s 81
pt.3
Fluoridation of public potable water supplies
Fluoridation of public potable water supplies
sec.7
Decisions about fluoridation of public potable water supplies
sec.7 Decisions about fluoridation of public potable water supplies
A local government may decide that fluoride be added to the water supply that supplies potable water to the community in its local government area if it is satisfied the decision is in the best interests of the community.
If a local government makes a decision under subsection (1) —
if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and
the water supplier must add fluoride, or continue to add fluoride, to the water supply.
A local government may decide that fluoride not be added to the water supply that supplies potable water to the community in its local government area if it is satisfied the decision is in the best interests of the community.
If a local government makes a decision under subsection (3) —
if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and
the water supplier must not add fluoride, or must cease to add fluoride, to the water supply.
A local government may, before making a decision under subsection (1) or (3) , consult with the public potable water supplier for the potable water supply about cost implications, infrastructure arrangements and potential impact on water supply inside or outside the local government area.
In this section—
community , of a local government, includes part of the community of the local government.
s 7 sub 2012 No. 39 s 82
(sec.7-ssec.1) A local government may decide that fluoride be added to the water supply that supplies potable water to the community in its local government area if it is satisfied the decision is in the best interests of the community.
(sec.7-ssec.2) If a local government makes a decision under subsection (1) — if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and the water supplier must add fluoride, or continue to add fluoride, to the water supply.
(sec.7-ssec.3) A local government may decide that fluoride not be added to the water supply that supplies potable water to the community in its local government area if it is satisfied the decision is in the best interests of the community.
(sec.7-ssec.4) If a local government makes a decision under subsection (3) — if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and the water supplier must not add fluoride, or must cease to add fluoride, to the water supply.
(sec.7-ssec.5) A local government may, before making a decision under subsection (1) or (3) , consult with the public potable water supplier for the potable water supply about cost implications, infrastructure arrangements and potential impact on water supply inside or outside the local government area.
(sec.7-ssec.6) In this section— community , of a local government, includes part of the community of the local government.
(a) if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and
(b) the water supplier must add fluoride, or continue to add fluoride, to the water supply.
(a) if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and
(b) the water supplier must not add fluoride, or must cease to add fluoride, to the water supply.
sec.8
Requirement for public potable water supplier not to impact on another local government
sec.8 Requirement for public potable water supplier not to impact on another local government
This section applies to a public potable water supplier for a public potable water supply that is required under section 7 to add fluoride, or cease to add fluoride, to the water supply that supplies potable water to a community in a local government area.
The public potable water supplier must not, when adding fluoride, or ceasing to add fluoride, to the water supply, affect another local government’s water security or water supply or the fluoridation of another local government’s water supply without the other local government’s agreement.
s 8 sub 2012 No. 39 s 82
(sec.8-ssec.1) This section applies to a public potable water supplier for a public potable water supply that is required under section 7 to add fluoride, or cease to add fluoride, to the water supply that supplies potable water to a community in a local government area.
(sec.8-ssec.2) The public potable water supplier must not, when adding fluoride, or ceasing to add fluoride, to the water supply, affect another local government’s water security or water supply or the fluoridation of another local government’s water supply without the other local government’s agreement.
sec.9
Costs
sec.9 Costs
If—
a local government makes a decision under section 7 to add fluoride, or cease to add fluoride, to the water supply that supplies potable water to the community in its local government area; and
the local government is not the public potable water supplier for the potable water supply; and
the public potable water supplier for the potable water supply incurs costs ( compliance costs ) in complying with the local government’s decision;
the local government must pay the public potable water supplier’s compliance costs.
s 9 sub 2012 No. 39 s 82
(a) a local government makes a decision under section 7 to add fluoride, or cease to add fluoride, to the water supply that supplies potable water to the community in its local government area; and
(b) the local government is not the public potable water supplier for the potable water supply; and
(c) the public potable water supplier for the potable water supply incurs costs ( compliance costs ) in complying with the local government’s decision;
sec.10
Section sec.10
s 10 om 2012 No. 39 s 82
sec.11
Section sec.11
s 11 om 2012 No. 39 s 82
sec.12
Requirements relating to the addition of fluoride to public potable water supply
sec.12 Requirements relating to the addition of fluoride to public potable water supply
A public potable water supplier for a public potable water supply that adds fluoride to the public potable water supply must—
add the fluoride in a form prescribed under a regulation; and
comply with the requirements prescribed under a regulation relating to the addition of fluoride to, and the maintaining of fluoride in, a public potable water supply.
For the consequences of contravening this provision, see part 5 , division 3 .
(a) add the fluoride in a form prescribed under a regulation; and
(b) comply with the requirements prescribed under a regulation relating to the addition of fluoride to, and the maintaining of fluoride in, a public potable water supply.
sec.13
Notification of intention relating to fluoridation of public potable water supply
sec.13 Notification of intention relating to fluoridation of public potable water supply
This section applies if a local government makes a decision (a fluoridation decision ) to add fluoride, or cease to add fluoride, to the public potable water supply that supplies potable water to the community, or part of its community, in its local government area.
The local government must—
give the chief executive a notice stating that the local government has made a fluoridation decision and the nature of the decision; and
publish the notice in a publicly accessible way.
publish the notice on the local government’s website
publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
The public potable water supplier for the public potable water supply must, at least 30 days before adding fluoride or ceasing to add fluoride to the water supply—
give a fluoridation notice to the chief executive; and
publish the fluoridation notice in a publicly accessible way.
publish the fluoridation notice on the local government’s website
publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
In this section—
fluoridation notice means a notice stating—
that the local government has made a fluoridation decision; and
that the public potable water supplier for the public potable water supply intends to add fluoride or cease to add fluoride to the water supply from a stated day.
s 13 sub 2012 No. 39 s 83
amd 2023 No. 9 s 41
(sec.13-ssec.1) This section applies if a local government makes a decision (a fluoridation decision ) to add fluoride, or cease to add fluoride, to the public potable water supply that supplies potable water to the community, or part of its community, in its local government area.
(sec.13-ssec.2) The local government must— give the chief executive a notice stating that the local government has made a fluoridation decision and the nature of the decision; and publish the notice in a publicly accessible way. publish the notice on the local government’s website publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
(sec.13-ssec.3) The public potable water supplier for the public potable water supply must, at least 30 days before adding fluoride or ceasing to add fluoride to the water supply— give a fluoridation notice to the chief executive; and publish the fluoridation notice in a publicly accessible way. publish the fluoridation notice on the local government’s website publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
(sec.13-ssec.4) In this section— fluoridation notice means a notice stating— that the local government has made a fluoridation decision; and that the public potable water supplier for the public potable water supply intends to add fluoride or cease to add fluoride to the water supply from a stated day.
(a) give the chief executive a notice stating that the local government has made a fluoridation decision and the nature of the decision; and
(b) publish the notice in a publicly accessible way. Examples for paragraph (b) — • publish the notice on the local government’s website • publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
• publish the notice on the local government’s website
• publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
• publish the notice on the local government’s website
• publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
(a) give a fluoridation notice to the chief executive; and
(b) publish the fluoridation notice in a publicly accessible way. Examples for paragraph (b) — • publish the fluoridation notice on the local government’s website • publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
• publish the fluoridation notice on the local government’s website
• publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
• publish the fluoridation notice on the local government’s website
• publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
(a) that the local government has made a fluoridation decision; and
(b) that the public potable water supplier for the public potable water supply intends to add fluoride or cease to add fluoride to the water supply from a stated day.
sec.14
Only certain persons may add fluoride to a public potable water supply
sec.14 Only certain persons may add fluoride to a public potable water supply
A person must not add fluoride to a public potable water supply unless the person is—
a public potable water supplier for the water supply; or
an employee or agent of the water supplier acting under the water supplier’s authority; or
acting under section 60 .
Maximum penalty—100 penalty units.
s 14 amd 2012 No. 39 s 84
(a) a public potable water supplier for the water supply; or
(b) an employee or agent of the water supplier acting under the water supplier’s authority; or
(c) acting under section 60 .
pt.4
sec.15
Section sec.15
s 15 om 2012 No. 39 s 84A
sec.16
Section sec.16
s 16 om 2012 No. 39 s 84A
sec.17
Section sec.17
s 17 om 2012 No. 39 s 84A
sec.18
Section sec.18
s 18 om 2012 No. 39 s 84A
sec.19
Section sec.19
s 19 om 2012 No. 39 s 84A
sec.20
Section sec.20
s 20 om 2012 No. 39 s 84A
sec.21
Section sec.21
s 21 om 2012 No. 39 s 84A
sec.22
Section sec.22
s 22 om 2012 No. 39 s 84A
sec.23
Section sec.23
s 23 om 2012 No. 39 s 84A
pt.5
Monitoring and enforcement
Monitoring and enforcement
pt.5-div.1
Authorised persons
Authorised persons
sec.24
Powers generally
sec.24 Powers generally
An authorised person has the powers given under this Act.
In exercising the powers, the authorised person is subject to the directions of the chief executive.
(sec.24-ssec.1) An authorised person has the powers given under this Act.
(sec.24-ssec.2) In exercising the powers, the authorised person is subject to the directions of the chief executive.
sec.25
Functions of authorised person
sec.25 Functions of authorised person
An authorised person has the following functions—
to enforce this Act;
to monitor compliance with this Act;
to help achieve the object of this Act by providing advice and information on how the object may be achieved.
(a) to enforce this Act;
(b) to monitor compliance with this Act;
(c) to help achieve the object of this Act by providing advice and information on how the object may be achieved.
sec.26
Appointment and qualifications
sec.26 Appointment and qualifications
The chief executive may appoint any of the following persons as an authorised person—
a public service employee of the department;
a health service employee;
a person prescribed under a regulation.
However, the chief executive may appoint a person as an authorised person only if satisfied the person is qualified for appointment because the person has the necessary expertise or experience.
(sec.26-ssec.1) The chief executive may appoint any of the following persons as an authorised person— a public service employee of the department; a health service employee; a person prescribed under a regulation.
(sec.26-ssec.2) However, the chief executive may appoint a person as an authorised person only if satisfied the person is qualified for appointment because the person has the necessary expertise or experience.
(a) a public service employee of the department;
(b) a health service employee;
(c) a person prescribed under a regulation.
sec.27
Appointment conditions and limit on powers
sec.27 Appointment conditions and limit on powers
An authorised person holds office on any conditions stated in—
the authorised person’s instrument of appointment; or
a signed notice given to the authorised person; or
a regulation.
The instrument of appointment, a signed notice given to the authorised person or a regulation may limit the authorised person’s powers under this Act.
In this section—
signed notice means a notice signed by the chief executive.
(sec.27-ssec.1) An authorised person holds office on any conditions stated in— the authorised person’s instrument of appointment; or a signed notice given to the authorised person; or a regulation.
(sec.27-ssec.2) The instrument of appointment, a signed notice given to the authorised person or a regulation may limit the authorised person’s powers under this Act.
(sec.27-ssec.3) In this section— signed notice means a notice signed by the chief executive.
(a) the authorised person’s instrument of appointment; or
(b) a signed notice given to the authorised person; or
(c) a regulation.
sec.28
Issue of identity card
sec.28 Issue of identity card
The chief executive must issue an identity card to each authorised person.
The identity card must—
contain a recent photo of the authorised person; and
contain a copy of the authorised person’s signature; and
identify the person as an authorised person under this Act; and
state an expiry date for the card.
This section does not prevent the issue of a single identity card to a person for this Act and other purposes.
(sec.28-ssec.1) The chief executive must issue an identity card to each authorised person.
(sec.28-ssec.2) The identity card must— contain a recent photo of the authorised person; and contain a copy of the authorised person’s signature; and identify the person as an authorised person under this Act; and state an expiry date for the card.
(sec.28-ssec.3) This section does not prevent the issue of a single identity card to a person for this Act and other purposes.
(a) contain a recent photo of the authorised person; and
(b) contain a copy of the authorised person’s signature; and
(c) identify the person as an authorised person under this Act; and
(d) state an expiry date for the card.
sec.29
Production or display of identity card
sec.29 Production or display of identity card
In exercising a power under this Act in relation to another person, an authorised person must—
produce the authorised person’s identity card for the other person’s inspection before exercising the power; or
have the identity card displayed so it is clearly visible to the other person when exercising the power.
However, if it is not practicable to comply with subsection (1) , the authorised person must produce the identity card for the other person’s inspection at the first reasonable opportunity.
For subsection (1) , an authorised person does not exercise a power in relation to another person only because the authorised person has entered a place as mentioned in section 33 (1) (b) or (2) .
(sec.29-ssec.1) In exercising a power under this Act in relation to another person, an authorised person must— produce the authorised person’s identity card for the other person’s inspection before exercising the power; or have the identity card displayed so it is clearly visible to the other person when exercising the power.
(sec.29-ssec.2) However, if it is not practicable to comply with subsection (1) , the authorised person must produce the identity card for the other person’s inspection at the first reasonable opportunity.
(sec.29-ssec.3) For subsection (1) , an authorised person does not exercise a power in relation to another person only because the authorised person has entered a place as mentioned in section 33 (1) (b) or (2) .
(a) produce the authorised person’s identity card for the other person’s inspection before exercising the power; or
(b) have the identity card displayed so it is clearly visible to the other person when exercising the power.
sec.30
When authorised person ceases to hold office
sec.30 When authorised person ceases to hold office
An authorised person ceases to hold office if any of the following happens—
the term of office stated in a condition of office ends;
under another condition of office, the authorised person ceases to hold office;
the authorised person’s resignation under section 31 takes effect.
Subsection (1) does not limit the ways an authorised person may cease to hold office.
In this section—
condition of office means a condition on which the authorised person holds office.
(sec.30-ssec.1) An authorised person ceases to hold office if any of the following happens— the term of office stated in a condition of office ends; under another condition of office, the authorised person ceases to hold office; the authorised person’s resignation under section 31 takes effect.
(sec.30-ssec.2) Subsection (1) does not limit the ways an authorised person may cease to hold office.
(sec.30-ssec.3) In this section— condition of office means a condition on which the authorised person holds office.
(a) the term of office stated in a condition of office ends;
(b) under another condition of office, the authorised person ceases to hold office;
(c) the authorised person’s resignation under section 31 takes effect.
sec.31
Resignation
sec.31 Resignation
An authorised person may resign by signed notice given to the chief executive.
sec.32
Return of identity card
sec.32 Return of identity card
A person who ceases to be an authorised person must return the person’s identity card to the chief executive within 21 days after ceasing to be an authorised person, unless the person has a reasonable excuse.
Maximum penalty—20 penalty units.
pt.5-div.2
Powers of authorised persons
Powers of authorised persons
sec.33
Power to enter places
sec.33 Power to enter places
An authorised person may enter a place if—
an occupier of the place consents to the entry; or
it is a public place and the entry is made when it is open to the public; or
it is a place that contains a public potable water supply or equipment connected with a public potable water supply; or
the entry is authorised by a warrant.
For the purpose of asking an occupier of a place for consent to enter, an authorised person may, without the occupier’s consent or a warrant—
enter land around premises at the place to an extent that is reasonable to contact the occupier; or
enter part of the place the authorised person reasonably considers members of the public ordinarily are allowed to enter when they wish to contact the occupier.
Subsection (1) (c) does not authorise the entry of any part of a place where a person resides.
(sec.33-ssec.1) An authorised person may enter a place if— an occupier of the place consents to the entry; or it is a public place and the entry is made when it is open to the public; or it is a place that contains a public potable water supply or equipment connected with a public potable water supply; or the entry is authorised by a warrant.
(sec.33-ssec.2) For the purpose of asking an occupier of a place for consent to enter, an authorised person may, without the occupier’s consent or a warrant— enter land around premises at the place to an extent that is reasonable to contact the occupier; or enter part of the place the authorised person reasonably considers members of the public ordinarily are allowed to enter when they wish to contact the occupier.
(sec.33-ssec.3) Subsection (1) (c) does not authorise the entry of any part of a place where a person resides.
(a) an occupier of the place consents to the entry; or
(b) it is a public place and the entry is made when it is open to the public; or
(c) it is a place that contains a public potable water supply or equipment connected with a public potable water supply; or
(d) the entry is authorised by a warrant.
(a) enter land around premises at the place to an extent that is reasonable to contact the occupier; or
(b) enter part of the place the authorised person reasonably considers members of the public ordinarily are allowed to enter when they wish to contact the occupier.
sec.34
Entry with consent
sec.34 Entry with consent
This section applies if an authorised person intends to ask an occupier of a place to consent to the authorised person or another authorised person entering the place under section 33 (1) (a) .
Before asking for the consent, the authorised person must tell the occupier—
the purpose of the entry; and
that the occupier is not required to consent.
If the consent is given, the authorised person may ask the occupier to sign an acknowledgement of the consent.
The acknowledgement must state—
the occupier has been told—
the purpose of the entry; and
that the occupier is not required to consent; and
the purpose of the entry; and
the occupier gives the authorised person consent to enter the place and exercise powers under this division; and
the time and date the consent was given.
If the occupier signs the acknowledgement, the authorised person must immediately give a copy to the occupier.
If—
an issue arises in a proceeding about whether the occupier consented to the entry; and
an acknowledgement complying with subsection (4) for the entry is not produced in evidence;
the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.
(sec.34-ssec.1) This section applies if an authorised person intends to ask an occupier of a place to consent to the authorised person or another authorised person entering the place under section 33 (1) (a) .
(sec.34-ssec.2) Before asking for the consent, the authorised person must tell the occupier— the purpose of the entry; and that the occupier is not required to consent.
(sec.34-ssec.3) If the consent is given, the authorised person may ask the occupier to sign an acknowledgement of the consent.
(sec.34-ssec.4) The acknowledgement must state— the occupier has been told— the purpose of the entry; and that the occupier is not required to consent; and the purpose of the entry; and the occupier gives the authorised person consent to enter the place and exercise powers under this division; and the time and date the consent was given.
(sec.34-ssec.5) If the occupier signs the acknowledgement, the authorised person must immediately give a copy to the occupier.
(sec.34-ssec.6) If— an issue arises in a proceeding about whether the occupier consented to the entry; and an acknowledgement complying with subsection (4) for the entry is not produced in evidence; the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.
(a) the purpose of the entry; and
(b) that the occupier is not required to consent.
(a) the occupier has been told— (i) the purpose of the entry; and (ii) that the occupier is not required to consent; and
(i) the purpose of the entry; and
(ii) that the occupier is not required to consent; and
(b) the purpose of the entry; and
(c) the occupier gives the authorised person consent to enter the place and exercise powers under this division; and
(d) the time and date the consent was given.
(i) the purpose of the entry; and
(ii) that the occupier is not required to consent; and
(a) an issue arises in a proceeding about whether the occupier consented to the entry; and
(b) an acknowledgement complying with subsection (4) for the entry is not produced in evidence;
sec.35
Application for warrant
sec.35 Application for warrant
An authorised person may apply to a magistrate for a warrant for a place.
The authorised person must prepare a written application that states the grounds on which the warrant is sought.
The written application must be sworn.
The magistrate may refuse to consider the application until the authorised person gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
The magistrate may require additional information supporting the application to be given by statutory declaration.
(sec.35-ssec.1) An authorised person may apply to a magistrate for a warrant for a place.
(sec.35-ssec.2) The authorised person must prepare a written application that states the grounds on which the warrant is sought.
(sec.35-ssec.3) The written application must be sworn.
(sec.35-ssec.4) The magistrate may refuse to consider the application until the authorised person gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. The magistrate may require additional information supporting the application to be given by statutory declaration.
sec.36
Issue of warrant
sec.36 Issue of warrant
The magistrate may issue the warrant for the place only if the magistrate is satisfied there are reasonable grounds for suspecting—
there is a particular thing or activity (the evidence ) that may provide evidence of an offence against this Act; and
the evidence is at the place or, within the next 7 days, will be at the place.
The warrant must state—
the place to which the warrant applies; and
that a stated authorised person may, with necessary and reasonable help and force—
enter the place and any other place necessary for entry to the place; and
exercise the authorised person’s powers under this division; and
particulars of the offence that the magistrate considers appropriate in the circumstances; and
the name of the person suspected of having committed the offence, unless the name is unknown or the magistrate considers it inappropriate to state the name; and
the evidence that may be seized under the warrant; and
the hours of the day or night when the place may be entered; and
the magistrate’s name; and
the date and time of the warrant’s issue; and
the date, within 14 days after the warrant’s issue, the warrant ends.
(sec.36-ssec.1) The magistrate may issue the warrant for the place only if the magistrate is satisfied there are reasonable grounds for suspecting— there is a particular thing or activity (the evidence ) that may provide evidence of an offence against this Act; and the evidence is at the place or, within the next 7 days, will be at the place.
(sec.36-ssec.2) The warrant must state— the place to which the warrant applies; and that a stated authorised person may, with necessary and reasonable help and force— enter the place and any other place necessary for entry to the place; and exercise the authorised person’s powers under this division; and particulars of the offence that the magistrate considers appropriate in the circumstances; and the name of the person suspected of having committed the offence, unless the name is unknown or the magistrate considers it inappropriate to state the name; and the evidence that may be seized under the warrant; and the hours of the day or night when the place may be entered; and the magistrate’s name; and the date and time of the warrant’s issue; and the date, within 14 days after the warrant’s issue, the warrant ends.
(a) there is a particular thing or activity (the evidence ) that may provide evidence of an offence against this Act; and
(b) the evidence is at the place or, within the next 7 days, will be at the place.
(a) the place to which the warrant applies; and
(b) that a stated authorised person may, with necessary and reasonable help and force— (i) enter the place and any other place necessary for entry to the place; and (ii) exercise the authorised person’s powers under this division; and
(i) enter the place and any other place necessary for entry to the place; and
(ii) exercise the authorised person’s powers under this division; and
(c) particulars of the offence that the magistrate considers appropriate in the circumstances; and
(d) the name of the person suspected of having committed the offence, unless the name is unknown or the magistrate considers it inappropriate to state the name; and
(e) the evidence that may be seized under the warrant; and
(f) the hours of the day or night when the place may be entered; and
(g) the magistrate’s name; and
(h) the date and time of the warrant’s issue; and
(i) the date, within 14 days after the warrant’s issue, the warrant ends.
(i) enter the place and any other place necessary for entry to the place; and
(ii) exercise the authorised person’s powers under this division; and
sec.37
Application by electronic communication and duplicate warrant
sec.37 Application by electronic communication and duplicate warrant
An application under section 35 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the authorised person reasonably considers it necessary because of—
urgent circumstances; or
other special circumstances, including, for example, the authorised person’s remote location.
The application—
may not be made before the authorised person prepares the written application under section 35 (2) ; but
may be made before the written application is sworn.
The magistrate may issue the warrant (the original warrant ) only if the magistrate is satisfied—
it was necessary to make the application under subsection (1) ; and
the way the application was made under subsection (1) was appropriate.
After the magistrate issues the original warrant—
if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised person, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised person; or
otherwise—
the magistrate must tell the authorised person the date and time the warrant is issued and the other terms of the warrant; and
the authorised person must complete a form of warrant including by writing on it—
the magistrate’s name; and
the date and time the magistrate issued the warrant; and
the other terms of the warrant.
The copy of the warrant mentioned in subsection (4) (a) , or the form of warrant completed under subsection (4) (b) (in either case the duplicate warrant ), is a duplicate of, and as effectual as, the original warrant.
The authorised person must, at the first reasonable opportunity, send to the magistrate—
the written application complying with section 35 (2) and (3) ; and
if the authorised person completed a form of warrant under subsection (4) (b) —the completed form of warrant.
The magistrate must keep the original warrant and, on receiving the documents under subsection (6) —
attach the documents to the original warrant; and
give the original warrant and documents to the clerk of the court of the relevant magistrates court.
Despite subsection (5) , if—
an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and
the original warrant is not produced in evidence;
the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.
This section does not limit section 35 .
In this section—
relevant magistrates court , in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991 .
(sec.37-ssec.1) An application under section 35 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the authorised person reasonably considers it necessary because of— urgent circumstances; or other special circumstances, including, for example, the authorised person’s remote location.
(sec.37-ssec.2) The application— may not be made before the authorised person prepares the written application under section 35 (2) ; but may be made before the written application is sworn.
(sec.37-ssec.3) The magistrate may issue the warrant (the original warrant ) only if the magistrate is satisfied— it was necessary to make the application under subsection (1) ; and the way the application was made under subsection (1) was appropriate.
(sec.37-ssec.4) After the magistrate issues the original warrant— if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised person, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised person; or otherwise— the magistrate must tell the authorised person the date and time the warrant is issued and the other terms of the warrant; and the authorised person must complete a form of warrant including by writing on it— the magistrate’s name; and the date and time the magistrate issued the warrant; and the other terms of the warrant.
(sec.37-ssec.5) The copy of the warrant mentioned in subsection (4) (a) , or the form of warrant completed under subsection (4) (b) (in either case the duplicate warrant ), is a duplicate of, and as effectual as, the original warrant.
(sec.37-ssec.6) The authorised person must, at the first reasonable opportunity, send to the magistrate— the written application complying with section 35 (2) and (3) ; and if the authorised person completed a form of warrant under subsection (4) (b) —the completed form of warrant.
(sec.37-ssec.7) The magistrate must keep the original warrant and, on receiving the documents under subsection (6) — attach the documents to the original warrant; and give the original warrant and documents to the clerk of the court of the relevant magistrates court.
(sec.37-ssec.8) Despite subsection (5) , if— an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and the original warrant is not produced in evidence; the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.
(sec.37-ssec.9) This section does not limit section 35 .
(sec.37-ssec.10) In this section— relevant magistrates court , in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991 .
(a) urgent circumstances; or
(b) other special circumstances, including, for example, the authorised person’s remote location.
(a) may not be made before the authorised person prepares the written application under section 35 (2) ; but
(b) may be made before the written application is sworn.
(a) it was necessary to make the application under subsection (1) ; and
(b) the way the application was made under subsection (1) was appropriate.
(a) if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised person, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised person; or
(b) otherwise— (i) the magistrate must tell the authorised person the date and time the warrant is issued and the other terms of the warrant; and (ii) the authorised person must complete a form of warrant including by writing on it— (A) the magistrate’s name; and (B) the date and time the magistrate issued the warrant; and (C) the other terms of the warrant.
(i) the magistrate must tell the authorised person the date and time the warrant is issued and the other terms of the warrant; and
(ii) the authorised person must complete a form of warrant including by writing on it— (A) the magistrate’s name; and (B) the date and time the magistrate issued the warrant; and (C) the other terms of the warrant.
(A) the magistrate’s name; and
(B) the date and time the magistrate issued the warrant; and
(C) the other terms of the warrant.
(i) the magistrate must tell the authorised person the date and time the warrant is issued and the other terms of the warrant; and
(ii) the authorised person must complete a form of warrant including by writing on it— (A) the magistrate’s name; and (B) the date and time the magistrate issued the warrant; and (C) the other terms of the warrant.
(A) the magistrate’s name; and
(B) the date and time the magistrate issued the warrant; and
(C) the other terms of the warrant.
(A) the magistrate’s name; and
(B) the date and time the magistrate issued the warrant; and
(C) the other terms of the warrant.
(a) the written application complying with section 35 (2) and (3) ; and
(b) if the authorised person completed a form of warrant under subsection (4) (b) —the completed form of warrant.
(a) attach the documents to the original warrant; and
(b) give the original warrant and documents to the clerk of the court of the relevant magistrates court.
(a) an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and
(b) the original warrant is not produced in evidence;
sec.38
Defect in relation to a warrant
sec.38 Defect in relation to a warrant
A warrant is not invalidated by a defect in the warrant, or in compliance with section 35 , 36 or 37 , unless the defect affects the substance of the warrant in a material particular.
In this section—
warrant includes a duplicate warrant mentioned in section 37 (5) .
(sec.38-ssec.1) A warrant is not invalidated by a defect in the warrant, or in compliance with section 35 , 36 or 37 , unless the defect affects the substance of the warrant in a material particular.
(sec.38-ssec.2) In this section— warrant includes a duplicate warrant mentioned in section 37 (5) .
sec.39
Warrants—procedure before entry
sec.39 Warrants—procedure before entry
This section applies if an authorised person named in a warrant issued under this division for a place is intending to enter the place under the warrant.
Before entering the place, the authorised person must do or make a reasonable attempt to do the following things—
identify himself or herself to a person present at the place who is an occupier of the place by producing a copy of the authorised person’s identity card or other document evidencing the appointment;
give the person a copy of the warrant;
tell the person the authorised person is permitted by the warrant to enter the place;
give the person an opportunity to allow the authorised person immediate entry to the place without using force.
However, the authorised person need not comply with subsection (2) if the authorised person believes on reasonable grounds that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.
In this section—
warrant includes a duplicate warrant mentioned in section 37 (5) .
(sec.39-ssec.1) This section applies if an authorised person named in a warrant issued under this division for a place is intending to enter the place under the warrant.
(sec.39-ssec.2) Before entering the place, the authorised person must do or make a reasonable attempt to do the following things— identify himself or herself to a person present at the place who is an occupier of the place by producing a copy of the authorised person’s identity card or other document evidencing the appointment; give the person a copy of the warrant; tell the person the authorised person is permitted by the warrant to enter the place; give the person an opportunity to allow the authorised person immediate entry to the place without using force.
(sec.39-ssec.3) However, the authorised person need not comply with subsection (2) if the authorised person believes on reasonable grounds that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.
(sec.39-ssec.4) In this section— warrant includes a duplicate warrant mentioned in section 37 (5) .
(a) identify himself or herself to a person present at the place who is an occupier of the place by producing a copy of the authorised person’s identity card or other document evidencing the appointment;
(b) give the person a copy of the warrant;
(c) tell the person the authorised person is permitted by the warrant to enter the place;
(d) give the person an opportunity to allow the authorised person immediate entry to the place without using force.
sec.40
General powers after entering places
sec.40 General powers after entering places
This section applies to an authorised person who enters a place.
However, if an authorised person enters a place to get an occupier’s consent to enter a place, this section applies to the authorised person only if the consent is given or the entry is otherwise authorised.
For monitoring and enforcing compliance with this Act, the authorised person may—
search any part of the place; or
inspect, measure, test, photograph or film any part of the place or anything at the place; or
take a thing, or a sample of or from a thing, at the place for analysis; or
copy a document at the place or take the document to another place to copy it; or
take into or onto the place any persons, equipment and materials the authorised person reasonably requires for exercising a power under this division; or
require an occupier of the place, or a person at the place, to give the authorised person reasonable help to exercise the authorised person’s powers under paragraphs (a) to (e) ; or
require an occupier of the place, or a person at the place, to give the authorised person information to help the authorised person find out whether this Act is being complied with.
When making a requirement mentioned in subsection (3) (f) or (g) , the authorised person must warn the person it is an offence to fail to comply with the requirement, unless the person has a reasonable excuse.
If an authorised person takes a document from a place to copy it, the document must be copied as soon as practicable and returned to the place.
(sec.40-ssec.1) This section applies to an authorised person who enters a place.
(sec.40-ssec.2) However, if an authorised person enters a place to get an occupier’s consent to enter a place, this section applies to the authorised person only if the consent is given or the entry is otherwise authorised.
(sec.40-ssec.3) For monitoring and enforcing compliance with this Act, the authorised person may— search any part of the place; or inspect, measure, test, photograph or film any part of the place or anything at the place; or take a thing, or a sample of or from a thing, at the place for analysis; or copy a document at the place or take the document to another place to copy it; or take into or onto the place any persons, equipment and materials the authorised person reasonably requires for exercising a power under this division; or require an occupier of the place, or a person at the place, to give the authorised person reasonable help to exercise the authorised person’s powers under paragraphs (a) to (e) ; or require an occupier of the place, or a person at the place, to give the authorised person information to help the authorised person find out whether this Act is being complied with.
(sec.40-ssec.4) When making a requirement mentioned in subsection (3) (f) or (g) , the authorised person must warn the person it is an offence to fail to comply with the requirement, unless the person has a reasonable excuse.
(sec.40-ssec.5) If an authorised person takes a document from a place to copy it, the document must be copied as soon as practicable and returned to the place.
(a) search any part of the place; or
(b) inspect, measure, test, photograph or film any part of the place or anything at the place; or
(c) take a thing, or a sample of or from a thing, at the place for analysis; or
(d) copy a document at the place or take the document to another place to copy it; or
(e) take into or onto the place any persons, equipment and materials the authorised person reasonably requires for exercising a power under this division; or
(f) require an occupier of the place, or a person at the place, to give the authorised person reasonable help to exercise the authorised person’s powers under paragraphs (a) to (e) ; or
(g) require an occupier of the place, or a person at the place, to give the authorised person information to help the authorised person find out whether this Act is being complied with.
sec.41
Failure to help authorised person
sec.41 Failure to help authorised person
A person required to give reasonable help under section 40 (3) (f) must comply with the requirement, unless the person has a reasonable excuse.
Maximum penalty—50 penalty units.
If an individual is required under section 40 (3) (f) to give information, or produce a document, it is a reasonable excuse for the individual to fail to comply with the requirement that complying with the requirement might tend to incriminate the individual.
(sec.41-ssec.1) A person required to give reasonable help under section 40 (3) (f) must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—50 penalty units.
(sec.41-ssec.2) If an individual is required under section 40 (3) (f) to give information, or produce a document, it is a reasonable excuse for the individual to fail to comply with the requirement that complying with the requirement might tend to incriminate the individual.
sec.42
Failure to give information
sec.42 Failure to give information
A person of whom a requirement is made under section 40 (3) (g) must comply with the requirement, unless the person has a reasonable excuse.
Maximum penalty—50 penalty units.
Also, under section 66 , it is an offence for a person to state anything to an authorised person the person knows to be false or misleading in a material particular.
It is a reasonable excuse for an individual to fail to comply with the requirement that complying with the requirement might tend to incriminate the individual.
(sec.42-ssec.1) A person of whom a requirement is made under section 40 (3) (g) must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—50 penalty units. Also, under section 66 , it is an offence for a person to state anything to an authorised person the person knows to be false or misleading in a material particular.
(sec.42-ssec.2) It is a reasonable excuse for an individual to fail to comply with the requirement that complying with the requirement might tend to incriminate the individual.
sec.43
Seizing evidence at a place that may be entered without consent or warrant
sec.43 Seizing evidence at a place that may be entered without consent or warrant
An authorised person who enters a place under this division without the consent of the occupier and without a warrant, may seize a thing at the place only if the authorised person reasonably believes the thing is evidence of an offence against this Act.
sec.44
Seizing evidence at a place that may only be entered with consent or warrant
sec.44 Seizing evidence at a place that may only be entered with consent or warrant
This section applies if—
an authorised person is authorised to enter a place under this division only with the consent of an occupier of the place or a warrant; and
the authorised person enters the place after obtaining the necessary consent or warrant.
If the authorised person enters the place with the occupier’s consent, the authorised person may seize a thing at the place only if—
the authorised person reasonably believes the thing is evidence of an offence against this Act; and
seizure of the thing is consistent with the purpose of entry as told to the occupier when asking for the occupier’s consent.
If the authorised person enters the place with a warrant, the authorised person may seize the evidence for which the warrant was issued.
The authorised person also may seize anything else at the place if the authorised person reasonably believes—
the thing is evidence of an offence against this Act; and
the seizure is necessary to prevent the thing being—
hidden, lost or destroyed; or
used to continue, or repeat, the offence.
Also, the authorised person may seize a thing at the place if the authorised person reasonably believes it has just been used in committing an offence against this Act.
(sec.44-ssec.1) This section applies if— an authorised person is authorised to enter a place under this division only with the consent of an occupier of the place or a warrant; and the authorised person enters the place after obtaining the necessary consent or warrant.
(sec.44-ssec.2) If the authorised person enters the place with the occupier’s consent, the authorised person may seize a thing at the place only if— the authorised person reasonably believes the thing is evidence of an offence against this Act; and seizure of the thing is consistent with the purpose of entry as told to the occupier when asking for the occupier’s consent.
(sec.44-ssec.3) If the authorised person enters the place with a warrant, the authorised person may seize the evidence for which the warrant was issued.
(sec.44-ssec.4) The authorised person also may seize anything else at the place if the authorised person reasonably believes— the thing is evidence of an offence against this Act; and the seizure is necessary to prevent the thing being— hidden, lost or destroyed; or used to continue, or repeat, the offence.
(sec.44-ssec.5) Also, the authorised person may seize a thing at the place if the authorised person reasonably believes it has just been used in committing an offence against this Act.
(a) an authorised person is authorised to enter a place under this division only with the consent of an occupier of the place or a warrant; and
(b) the authorised person enters the place after obtaining the necessary consent or warrant.
(a) the authorised person reasonably believes the thing is evidence of an offence against this Act; and
(b) seizure of the thing is consistent with the purpose of entry as told to the occupier when asking for the occupier’s consent.
(a) the thing is evidence of an offence against this Act; and
(b) the seizure is necessary to prevent the thing being— (i) hidden, lost or destroyed; or (ii) used to continue, or repeat, the offence.
(i) hidden, lost or destroyed; or
(ii) used to continue, or repeat, the offence.
(i) hidden, lost or destroyed; or
(ii) used to continue, or repeat, the offence.
sec.45
Securing seized things
sec.45 Securing seized things
Having seized a thing, an authorised person may—
move the thing from the place where it was seized (the place of seizure ); or
leave the thing at the place of seizure, but take reasonable action to restrict access to it.
sealing a thing and marking it to show access to it is restricted
sealing the entrance to a room where the thing is situated and marking it to show access to it is restricted
(a) move the thing from the place where it was seized (the place of seizure ); or
(b) leave the thing at the place of seizure, but take reasonable action to restrict access to it. Examples of restricting access to a thing— • sealing a thing and marking it to show access to it is restricted • sealing the entrance to a room where the thing is situated and marking it to show access to it is restricted
• sealing a thing and marking it to show access to it is restricted
• sealing the entrance to a room where the thing is situated and marking it to show access to it is restricted
• sealing a thing and marking it to show access to it is restricted
• sealing the entrance to a room where the thing is situated and marking it to show access to it is restricted
sec.46
Tampering with seized things
sec.46 Tampering with seized things
If an authorised person restricts access to a seized thing, a person must not tamper with the thing, or something restricting access to the thing, without an authorised person’s approval.
Maximum penalty—100 penalty units.
In this section—
tamper includes attempt to tamper.
(sec.46-ssec.1) If an authorised person restricts access to a seized thing, a person must not tamper with the thing, or something restricting access to the thing, without an authorised person’s approval. Maximum penalty—100 penalty units.
(sec.46-ssec.2) In this section— tamper includes attempt to tamper.
sec.47
Powers to support seizure
sec.47 Powers to support seizure
To enable a thing to be seized, an authorised person may require the person in control of it—
to take it to a stated reasonable place by a stated reasonable time; and
if necessary, to remain in control of it at the stated place for a reasonable time.
The requirement—
must be made by notice; or
if for any reason it is not practicable to give the notice, may be made orally and confirmed by notice as soon as practicable.
A further requirement may be made under this section about the same thing if it is necessary and reasonable to make the further requirement.
A person of whom a requirement is made under subsection (1) or (3) must comply with the requirement, unless the person has a reasonable excuse.
Maximum penalty—100 penalty units.
The cost of complying with subsection (4) must be borne by the department.
(sec.47-ssec.1) To enable a thing to be seized, an authorised person may require the person in control of it— to take it to a stated reasonable place by a stated reasonable time; and if necessary, to remain in control of it at the stated place for a reasonable time.
(sec.47-ssec.2) The requirement— must be made by notice; or if for any reason it is not practicable to give the notice, may be made orally and confirmed by notice as soon as practicable.
(sec.47-ssec.3) A further requirement may be made under this section about the same thing if it is necessary and reasonable to make the further requirement.
(sec.47-ssec.4) A person of whom a requirement is made under subsection (1) or (3) must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—100 penalty units.
(sec.47-ssec.5) The cost of complying with subsection (4) must be borne by the department.
(a) to take it to a stated reasonable place by a stated reasonable time; and
(b) if necessary, to remain in control of it at the stated place for a reasonable time.
(a) must be made by notice; or
(b) if for any reason it is not practicable to give the notice, may be made orally and confirmed by notice as soon as practicable.
sec.48
Authorised person may require thing’s return
sec.48 Authorised person may require thing’s return
If an authorised person has required a person to take a thing to a stated place by a stated reasonable time under section 47 the authorised person may require the person to return the thing to the place from which it was taken.
A person of whom a requirement is made under subsection (1) must comply with the requirement, unless the person has a reasonable excuse.
Maximum penalty—100 penalty units.
The cost of complying with subsection (2) must be borne by the department.
(sec.48-ssec.1) If an authorised person has required a person to take a thing to a stated place by a stated reasonable time under section 47 the authorised person may require the person to return the thing to the place from which it was taken.
(sec.48-ssec.2) A person of whom a requirement is made under subsection (1) must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—100 penalty units.
(sec.48-ssec.3) The cost of complying with subsection (2) must be borne by the department.
sec.49
Receipts for seized things
sec.49 Receipts for seized things
As soon as practicable after an authorised person seizes a thing, the authorised person must give a receipt for it to the person from whom it was seized.
However, if for any reason it is not practicable to comply with subsection (1) , the authorised person must leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.
The receipt must describe generally each thing seized and its condition.
This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt, given the thing’s nature, condition and value.
(sec.49-ssec.1) As soon as practicable after an authorised person seizes a thing, the authorised person must give a receipt for it to the person from whom it was seized.
(sec.49-ssec.2) However, if for any reason it is not practicable to comply with subsection (1) , the authorised person must leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.
(sec.49-ssec.3) The receipt must describe generally each thing seized and its condition.
(sec.49-ssec.4) This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt, given the thing’s nature, condition and value.
sec.50
Forfeiture of seized things
sec.50 Forfeiture of seized things
A seized thing is forfeited to the State if the authorised person who seized the thing—
can not find its owner, after making reasonable inquiries; or
can not return it to its owner, after making reasonable efforts.
In applying subsection (1) —
subsection (1) (a) does not require the authorised person to make inquiries if it would be unreasonable to make inquiries to find the owner; and
subsection (1) (b) does not require the authorised person to make efforts if it would be unreasonable to make efforts to return the thing to its owner.
Regard must be had to a thing’s nature, condition and value in deciding—
whether it is reasonable to make inquiries or efforts; and
if making inquiries or efforts, what inquiries or efforts, including the period over which they are made, are reasonable.
On the forfeiture of a thing to the State, the thing becomes the State’s property and may be dealt with by the chief executive as the chief executive considers appropriate.
Without limiting subsection (4) , the chief executive may destroy or dispose of the thing.
(sec.50-ssec.1) A seized thing is forfeited to the State if the authorised person who seized the thing— can not find its owner, after making reasonable inquiries; or can not return it to its owner, after making reasonable efforts.
(sec.50-ssec.2) In applying subsection (1) — subsection (1) (a) does not require the authorised person to make inquiries if it would be unreasonable to make inquiries to find the owner; and subsection (1) (b) does not require the authorised person to make efforts if it would be unreasonable to make efforts to return the thing to its owner.
(sec.50-ssec.3) Regard must be had to a thing’s nature, condition and value in deciding— whether it is reasonable to make inquiries or efforts; and if making inquiries or efforts, what inquiries or efforts, including the period over which they are made, are reasonable.
(sec.50-ssec.4) On the forfeiture of a thing to the State, the thing becomes the State’s property and may be dealt with by the chief executive as the chief executive considers appropriate.
(sec.50-ssec.5) Without limiting subsection (4) , the chief executive may destroy or dispose of the thing.
(a) can not find its owner, after making reasonable inquiries; or
(b) can not return it to its owner, after making reasonable efforts.
(a) subsection (1) (a) does not require the authorised person to make inquiries if it would be unreasonable to make inquiries to find the owner; and
(b) subsection (1) (b) does not require the authorised person to make efforts if it would be unreasonable to make efforts to return the thing to its owner.
(a) whether it is reasonable to make inquiries or efforts; and
(b) if making inquiries or efforts, what inquiries or efforts, including the period over which they are made, are reasonable.
sec.51
Return of seized things
sec.51 Return of seized things
If a thing has been seized but not forfeited or destroyed under this division, the authorised person must return it to its owner—
at the end of 6 months; or
if a proceeding for an offence involving the thing is started within 6 months, at the end of the proceeding and any appeal from the proceeding.
However, unless the thing has been forfeited or destroyed under this division, the authorised person must immediately return a thing seized as evidence to its owner if the authorised person stops being satisfied its continued retention as evidence is necessary.
(sec.51-ssec.1) If a thing has been seized but not forfeited or destroyed under this division, the authorised person must return it to its owner— at the end of 6 months; or if a proceeding for an offence involving the thing is started within 6 months, at the end of the proceeding and any appeal from the proceeding.
(sec.51-ssec.2) However, unless the thing has been forfeited or destroyed under this division, the authorised person must immediately return a thing seized as evidence to its owner if the authorised person stops being satisfied its continued retention as evidence is necessary.
(a) at the end of 6 months; or
(b) if a proceeding for an offence involving the thing is started within 6 months, at the end of the proceeding and any appeal from the proceeding.
sec.52
Access to seized things
sec.52 Access to seized things
Until a thing that has been seized is forfeited, destroyed or returned under this division, an authorised person must allow its owner to inspect it and, if it is a document, to copy it.
Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.
(sec.52-ssec.1) Until a thing that has been seized is forfeited, destroyed or returned under this division, an authorised person must allow its owner to inspect it and, if it is a document, to copy it.
(sec.52-ssec.2) Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.
sec.53
Power of destruction
sec.53 Power of destruction
An authorised person may destroy a thing seized under this division if—
the thing consists wholly or partly of contaminated or decomposed matter; or
the authorised person reasonably believes the thing poses an immediate risk to public health or safety.
(a) the thing consists wholly or partly of contaminated or decomposed matter; or
(b) the authorised person reasonably believes the thing poses an immediate risk to public health or safety.
sec.54
Power to require production of documents
sec.54 Power to require production of documents
An authorised person may require a person to make available for inspection by an authorised person, or produce to the authorised person for inspection, at a reasonable time and place nominated by the authorised person a document required to be kept by the person under this Act.
The authorised person may keep the document to copy it.
If the authorised person copies the document, or an entry in the document, the authorised person may require the person responsible for keeping the document to certify the copy as a true copy of the document or entry.
The authorised person must return the document to the person as soon as practicable after copying it.
However, if a requirement (a document certification requirement ) is made of a person under subsection (3) , the authorised person may keep the document until the person complies with the requirement.
A requirement under subsection (1) is a document production requirement .
(sec.54-ssec.1) An authorised person may require a person to make available for inspection by an authorised person, or produce to the authorised person for inspection, at a reasonable time and place nominated by the authorised person a document required to be kept by the person under this Act.
(sec.54-ssec.2) The authorised person may keep the document to copy it.
(sec.54-ssec.3) If the authorised person copies the document, or an entry in the document, the authorised person may require the person responsible for keeping the document to certify the copy as a true copy of the document or entry.
(sec.54-ssec.4) The authorised person must return the document to the person as soon as practicable after copying it.
(sec.54-ssec.5) However, if a requirement (a document certification requirement ) is made of a person under subsection (3) , the authorised person may keep the document until the person complies with the requirement.
(sec.54-ssec.6) A requirement under subsection (1) is a document production requirement .
sec.55
Failure to produce document
sec.55 Failure to produce document
A person of whom a document production requirement is made must comply with the requirement, unless the person has a reasonable excuse.
Maximum penalty—50 penalty units.
It is not a reasonable excuse for a person not to comply with a document production requirement that complying with the requirement might tend to incriminate the person.
(sec.55-ssec.1) A person of whom a document production requirement is made must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—50 penalty units.
(sec.55-ssec.2) It is not a reasonable excuse for a person not to comply with a document production requirement that complying with the requirement might tend to incriminate the person.
sec.56
Failure to certify copy of document
sec.56 Failure to certify copy of document
A person of whom a document certification requirement is made must comply with the requirement, unless the person has a reasonable excuse.
Maximum penalty—50 penalty units.
pt.5-div.3
Remedial notices
Remedial notices
sec.57
Definitions for div 3
sec.57 Definitions for div 3
In this division—
relevant provision see section 59 (2) (b) .
remedial notice see section 59 (1) .
the contravention see section 58 (b) .
s 57 def the contravention amd 2012 No. 39 s 84B (2)
s 57 amd 2012 No. 39 s 84B (1)
sec.58
Application of div 3
sec.58 Application of div 3
This division applies if an authorised person reasonably believes—
a public potable water supplier—
is contravening a provision of this Act; or
has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated; and
a matter relating to the contravention or likely repeated contravention (in either case the contravention ) can be remedied; and
it is appropriate to give the public potable water supplier an opportunity to remedy the matter.
s 58 amd 2012 No. 39 s 84C
(a) a public potable water supplier— (i) is contravening a provision of this Act; or (ii) has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated; and
(i) is contravening a provision of this Act; or
(ii) has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated; and
(b) a matter relating to the contravention or likely repeated contravention (in either case the contravention ) can be remedied; and
(c) it is appropriate to give the public potable water supplier an opportunity to remedy the matter.
(i) is contravening a provision of this Act; or
(ii) has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated; and
sec.59
Authorised person may issue remedial notice
sec.59 Authorised person may issue remedial notice
The authorised person may give the public potable water supplier a notice (a remedial notice ) requiring the water supplier to remedy the contravention.
The remedial notice must state the following—
that the authorised person reasonably believes the public potable water supplier—
is contravening a provision of this Act; or
has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated;
the provision the authorised person believes is being, or has been, contravened (the relevant provision );
briefly, how it is believed the relevant provision is being, or has been, contravened;
the period in which the water supplier must remedy the contravention.
The period stated under subsection (2) (d) must be reasonable having regard to the contravention.
The remedial notice may also state the reasonable steps that the authorised person considers necessary to remedy the contravention.
The authorised person must keep a copy of the remedial notice.
The public potable water supplier must comply with the remedial notice.
If it is an offence to contravene the relevant provision for which the remedial notice is given, the public potable water supplier can not be prosecuted for that offence unless the public potable water supplier fails to comply with the remedial notice and does not have a reasonable excuse for the noncompliance.
A public potable water supplier may be prosecuted for the contravention of a relevant provision without an authorised person first giving a remedial notice for the contravention.
(sec.59-ssec.1) The authorised person may give the public potable water supplier a notice (a remedial notice ) requiring the water supplier to remedy the contravention.
(sec.59-ssec.2) The remedial notice must state the following— that the authorised person reasonably believes the public potable water supplier— is contravening a provision of this Act; or has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated; the provision the authorised person believes is being, or has been, contravened (the relevant provision ); briefly, how it is believed the relevant provision is being, or has been, contravened; the period in which the water supplier must remedy the contravention.
(sec.59-ssec.3) The period stated under subsection (2) (d) must be reasonable having regard to the contravention.
(sec.59-ssec.4) The remedial notice may also state the reasonable steps that the authorised person considers necessary to remedy the contravention.
(sec.59-ssec.5) The authorised person must keep a copy of the remedial notice.
(sec.59-ssec.6) The public potable water supplier must comply with the remedial notice.
(sec.59-ssec.7) If it is an offence to contravene the relevant provision for which the remedial notice is given, the public potable water supplier can not be prosecuted for that offence unless the public potable water supplier fails to comply with the remedial notice and does not have a reasonable excuse for the noncompliance.
(sec.59-ssec.8) A public potable water supplier may be prosecuted for the contravention of a relevant provision without an authorised person first giving a remedial notice for the contravention.
(a) that the authorised person reasonably believes the public potable water supplier— (i) is contravening a provision of this Act; or (ii) has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated;
(i) is contravening a provision of this Act; or
(ii) has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated;
(b) the provision the authorised person believes is being, or has been, contravened (the relevant provision );
(c) briefly, how it is believed the relevant provision is being, or has been, contravened;
(d) the period in which the water supplier must remedy the contravention.
(i) is contravening a provision of this Act; or
(ii) has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated;
sec.60
Chief executive may take action if remedial notice not complied with
sec.60 Chief executive may take action if remedial notice not complied with
This section applies if the public potable water supplier fails to comply with the remedial notice.
The chief executive may take the action the chief executive considers reasonably necessary to remedy the contravention.
For taking the action, the chief executive may authorise a person to do the things that are necessary and reasonable.
Without limiting subsection (3) , the person may—
enter a place for the purpose of taking action to remedy the contravention; and
take onto the place any persons, equipment or materials the person reasonably requires for taking action to remedy the contravention.
This section does not authorise a person to enter any part of a place where a person resides.
(sec.60-ssec.1) This section applies if the public potable water supplier fails to comply with the remedial notice.
(sec.60-ssec.2) The chief executive may take the action the chief executive considers reasonably necessary to remedy the contravention.
(sec.60-ssec.3) For taking the action, the chief executive may authorise a person to do the things that are necessary and reasonable.
(sec.60-ssec.4) Without limiting subsection (3) , the person may— enter a place for the purpose of taking action to remedy the contravention; and take onto the place any persons, equipment or materials the person reasonably requires for taking action to remedy the contravention.
(sec.60-ssec.5) This section does not authorise a person to enter any part of a place where a person resides.
(a) enter a place for the purpose of taking action to remedy the contravention; and
(b) take onto the place any persons, equipment or materials the person reasonably requires for taking action to remedy the contravention.
sec.61
Recovery of chief executive’s costs
sec.61 Recovery of chief executive’s costs
The reasonable costs and expenses incurred by the chief executive in taking the action are a debt payable by the public potable water supplier to the State.
sec.62
Obstruction
sec.62 Obstruction
A person must not obstruct the chief executive, or a person authorised by the chief executive to take the action, in taking the action, unless the person has a reasonable excuse.
Maximum penalty—100 penalty units.
pt.5-div.4
General enforcement matters
General enforcement matters
sec.63
Notice of damage
sec.63 Notice of damage
This section applies if—
an authorised person damages property when exercising or purporting to exercise a power; or
a person (the other person ) acting under the direction or authority of an authorised person damages property.
The authorised person must immediately give notice of particulars of the damage to a person who appears to the authorised person to be an owner of the property.
If the authorised person believes the damage was caused by a latent defect in the property or circumstances beyond the authorised person’s or other person’s control, the authorised person may state the belief in the notice.
If, for any reason, it is impracticable to comply with subsection (2) , the authorised person must leave the notice in a conspicuous position and in a reasonably secure way at the place where the damage happened.
This section does not apply to damage the authorised person reasonably believes is trivial.
In this section—
owner , of property, includes a person in possession or control of it.
(sec.63-ssec.1) This section applies if— an authorised person damages property when exercising or purporting to exercise a power; or a person (the other person ) acting under the direction or authority of an authorised person damages property.
(sec.63-ssec.2) The authorised person must immediately give notice of particulars of the damage to a person who appears to the authorised person to be an owner of the property.
(sec.63-ssec.3) If the authorised person believes the damage was caused by a latent defect in the property or circumstances beyond the authorised person’s or other person’s control, the authorised person may state the belief in the notice.
(sec.63-ssec.4) If, for any reason, it is impracticable to comply with subsection (2) , the authorised person must leave the notice in a conspicuous position and in a reasonably secure way at the place where the damage happened.
(sec.63-ssec.5) This section does not apply to damage the authorised person reasonably believes is trivial.
(sec.63-ssec.6) In this section— owner , of property, includes a person in possession or control of it.
(a) an authorised person damages property when exercising or purporting to exercise a power; or
(b) a person (the other person ) acting under the direction or authority of an authorised person damages property.
sec.64
Compensation
sec.64 Compensation
If a person incurs loss or expense because of the exercise or purported exercise of a power under division 2 , other than the exercise or purported exercise of a power under section 53 to destroy a thing seized under division 2 , the person may claim compensation from the State.
Without limiting subsection (1) , compensation may be claimed for loss or expense incurred in complying with a requirement made of the person under division 2 .
Compensation may be claimed and ordered to be paid in a proceeding—
brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or
for an offence against this Act brought against the person claiming compensation.
A court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.
(sec.64-ssec.1) If a person incurs loss or expense because of the exercise or purported exercise of a power under division 2 , other than the exercise or purported exercise of a power under section 53 to destroy a thing seized under division 2 , the person may claim compensation from the State.
(sec.64-ssec.2) Without limiting subsection (1) , compensation may be claimed for loss or expense incurred in complying with a requirement made of the person under division 2 .
(sec.64-ssec.3) Compensation may be claimed and ordered to be paid in a proceeding— brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or for an offence against this Act brought against the person claiming compensation.
(sec.64-ssec.4) A court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.
(a) brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or
(b) for an offence against this Act brought against the person claiming compensation.
sec.65
Obstructing authorised person
sec.65 Obstructing authorised person
A person must not obstruct an authorised person in the exercise of a power, unless the person has a reasonable excuse.
Maximum penalty—100 penalty units.
If a person has obstructed an authorised person and the authorised person decides to proceed with the exercise of the power, the authorised person must warn the person that—
it is an offence to obstruct the authorised person unless the person has a reasonable excuse; and
the authorised person considers the person’s conduct an obstruction.
(sec.65-ssec.1) A person must not obstruct an authorised person in the exercise of a power, unless the person has a reasonable excuse. Maximum penalty—100 penalty units.
(sec.65-ssec.2) If a person has obstructed an authorised person and the authorised person decides to proceed with the exercise of the power, the authorised person must warn the person that— it is an offence to obstruct the authorised person unless the person has a reasonable excuse; and the authorised person considers the person’s conduct an obstruction.
(a) it is an offence to obstruct the authorised person unless the person has a reasonable excuse; and
(b) the authorised person considers the person’s conduct an obstruction.
sec.66
False or misleading statements
sec.66 False or misleading statements
A person must not state anything to an authorised person the person knows is false or misleading in a material particular.
Maximum penalty—100 penalty units.
sec.67
False or misleading documents
sec.67 False or misleading documents
A person must not give an authorised person a document containing information the person knows is false or misleading in a material particular.
Maximum penalty—100 penalty units.
Subsection (1) does not apply to a person if the person, when giving the document—
tells the authorised person, to the best of the person’s ability, how it is false or misleading; and
if the person has, or can reasonably obtain, the correct information—gives the correct information to the authorised person.
(sec.67-ssec.1) A person must not give an authorised person a document containing information the person knows is false or misleading in a material particular. Maximum penalty—100 penalty units.
(sec.67-ssec.2) Subsection (1) does not apply to a person if the person, when giving the document— tells the authorised person, to the best of the person’s ability, how it is false or misleading; and if the person has, or can reasonably obtain, the correct information—gives the correct information to the authorised person.
(a) tells the authorised person, to the best of the person’s ability, how it is false or misleading; and
(b) if the person has, or can reasonably obtain, the correct information—gives the correct information to the authorised person.
sec.68
Impersonating authorised person
sec.68 Impersonating authorised person
A person must not pretend to be an authorised person.
Maximum penalty—100 penalty units.
pt.6
Analysis of things or samples
Analysis of things or samples
pt.6-div.1
State analysts and approval of laboratories
State analysts and approval of laboratories
sec.69
Appointment and qualifications
sec.69 Appointment and qualifications
The chief executive may appoint any of the following persons as a State analyst—
a public service employee of the department;
a health service employee;
a person prescribed under a regulation.
A person may be appointed as a State analyst under subsection (1) to carry out any type, or only particular types, of analysis.
However, the chief executive may appoint a person as a State analyst only if satisfied the person is qualified for appointment because the person has the necessary expertise or experience.
(sec.69-ssec.1) The chief executive may appoint any of the following persons as a State analyst— a public service employee of the department; a health service employee; a person prescribed under a regulation.
(sec.69-ssec.2) A person may be appointed as a State analyst under subsection (1) to carry out any type, or only particular types, of analysis.
(sec.69-ssec.3) However, the chief executive may appoint a person as a State analyst only if satisfied the person is qualified for appointment because the person has the necessary expertise or experience.
(a) a public service employee of the department;
(b) a health service employee;
(c) a person prescribed under a regulation.
sec.70
Appointment conditions
sec.70 Appointment conditions
A State analyst holds office on any conditions stated in—
the State analyst’s instrument of appointment; or
a signed notice given to the State analyst; or
a regulation.
In this section—
signed notice means a notice signed by the chief executive.
(sec.70-ssec.1) A State analyst holds office on any conditions stated in— the State analyst’s instrument of appointment; or a signed notice given to the State analyst; or a regulation.
(sec.70-ssec.2) In this section— signed notice means a notice signed by the chief executive.
(a) the State analyst’s instrument of appointment; or
(b) a signed notice given to the State analyst; or
(c) a regulation.
sec.71
When State analyst ceases to hold office
sec.71 When State analyst ceases to hold office
A State analyst ceases to hold office if any of the following happens—
the term of office stated in a condition of office ends;
under another condition of office, the State analyst ceases to hold office;
the State analyst’s resignation under section 72 takes effect.
Subsection (1) does not limit the ways a State analyst may cease to hold office.
In this section—
condition of office means a condition on which the State analyst holds office.
(sec.71-ssec.1) A State analyst ceases to hold office if any of the following happens— the term of office stated in a condition of office ends; under another condition of office, the State analyst ceases to hold office; the State analyst’s resignation under section 72 takes effect.
(sec.71-ssec.2) Subsection (1) does not limit the ways a State analyst may cease to hold office.
(sec.71-ssec.3) In this section— condition of office means a condition on which the State analyst holds office.
(a) the term of office stated in a condition of office ends;
(b) under another condition of office, the State analyst ceases to hold office;
(c) the State analyst’s resignation under section 72 takes effect.
sec.72
Resignation
sec.72 Resignation
A State analyst may resign by signed notice given to the chief executive.
sec.73
Chief executive may approve laboratory
sec.73 Chief executive may approve laboratory
The chief executive may approve a laboratory to analyse things, or samples of or from things, taken under section 40 (3) (c) if—
the chief executive is satisfied the laboratory has the resources and expertise to conduct the analysis; and
the laboratory is accredited, authorised or approved to conduct the analyses by an entity prescribed under a regulation.
(a) the chief executive is satisfied the laboratory has the resources and expertise to conduct the analysis; and
(b) the laboratory is accredited, authorised or approved to conduct the analyses by an entity prescribed under a regulation.
pt.6-div.2
Other matters about analysis of things or samples
Other matters about analysis of things or samples
sec.74
Analysis
sec.74 Analysis
If an authorised person takes a thing, or a sample of or from a thing, for analysis under section 40 (3) (c) , the authorised person must as soon as practicable give it to a State analyst appointed to carry out the particular type of analysis required.
If a State analyst receives a thing or sample for analysis under subsection (1) , the State analyst must as soon as practicable—
analyse the thing or sample; or
give the thing or sample to an approved laboratory for analysis.
If the State analyst analyses the thing or sample, the State analyst must, as soon as practicable after analysing it—
complete a certificate of analysis for it; and
give the certificate to the authorised person who took the thing or sample for analysis.
If an approved laboratory analyses the thing or sample, the State analyst must, as soon as practicable after it is analysed—
obtain a certificate of analysis for it from the approved laboratory; and
give the certificate to the authorised person who took the thing or sample for analysis.
(sec.74-ssec.1) If an authorised person takes a thing, or a sample of or from a thing, for analysis under section 40 (3) (c) , the authorised person must as soon as practicable give it to a State analyst appointed to carry out the particular type of analysis required.
(sec.74-ssec.2) If a State analyst receives a thing or sample for analysis under subsection (1) , the State analyst must as soon as practicable— analyse the thing or sample; or give the thing or sample to an approved laboratory for analysis.
(sec.74-ssec.3) If the State analyst analyses the thing or sample, the State analyst must, as soon as practicable after analysing it— complete a certificate of analysis for it; and give the certificate to the authorised person who took the thing or sample for analysis.
(sec.74-ssec.4) If an approved laboratory analyses the thing or sample, the State analyst must, as soon as practicable after it is analysed— obtain a certificate of analysis for it from the approved laboratory; and give the certificate to the authorised person who took the thing or sample for analysis.
(a) analyse the thing or sample; or
(b) give the thing or sample to an approved laboratory for analysis.
(a) complete a certificate of analysis for it; and
(b) give the certificate to the authorised person who took the thing or sample for analysis.
(a) obtain a certificate of analysis for it from the approved laboratory; and
(b) give the certificate to the authorised person who took the thing or sample for analysis.
sec.75
Certificate must indicate methodology used
sec.75 Certificate must indicate methodology used
The certificate of analysis must include information about the methodology used to conduct the analysis.
pt.7
pt.7-div.1
sec.76
Section sec.76
s 76 om 2012 No. 39 s 84D
sec.77
Section sec.77
s 77 om 2012 No. 39 s 84D
pt.7-div.2
sec.78
Section sec.78
s 78 om 2012 No. 39 s 84D
sec.79
Section sec.79
s 79 om 2012 No. 39 s 84D
sec.80
Section sec.80
s 80 om 2012 No. 39 s 84D
sec.81
Section sec.81
s 81 om 2012 No. 39 s 84D
sec.82
Section sec.82
s 82 om 2012 No. 39 s 84D
pt.7-div.3
sec.83
Section sec.83
s 83 om 2012 No. 39 s 84D
pt.8
Evidence and legal proceedings
Evidence and legal proceedings
pt.8-div.1
Application
Application
sec.84
Application of part
sec.84 Application of part
This part applies to a legal proceeding under this Act.
pt.8-div.2
Evidentiary aids
Evidentiary aids
sec.85
Appointments and authority
sec.85 Appointments and authority
The following must be presumed unless a party to the proceeding, by reasonable notice, requires proof of it—
the chief executive’s appointment;
an authorised person’s appointment;
the authority of the Minister, the chief executive or an authorised person to do anything under this Act.
s 85 amd 2012 No. 39 s 84E
(a) the chief executive’s appointment;
(b) an authorised person’s appointment;
(c) the authority of the Minister, the chief executive or an authorised person to do anything under this Act.
sec.86
Signatures
sec.86 Signatures
A signature purporting to be the signature of the Minister, the chief executive or an authorised person is evidence of the signature it purports to be.
sec.87
Evidentiary provisions
sec.87 Evidentiary provisions
A certificate purporting to be signed by the chief executive and stating any of the following matters is evidence of the matter—
a stated document is one of the following things made, given, issued or kept under this Act—
an appointment or decision;
a notice or requirement;
a record or report, or an extract from a record or report;
a stated document is another document kept under this Act;
a stated document is a copy of a thing mentioned in paragraph (a) or (b) ;
on a stated day, or during a stated period, an appointment as an authorised person was, or was not, in force for a stated person;
on a stated day, a stated person was given a stated notice under this Act;
on a stated day, a stated requirement was made of a stated person;
a stated amount is payable under this Act by a stated person and has not been paid.
A certificate of analysis for a thing or sample taken for analysis under this Act stating any of the following matters is evidence of the matters—
the qualifications of the person (the analyst ) who conducted the analysis;
the analyst received the thing from a stated person;
the thing was analysed at a stated place on a stated day or during a stated period;
the methodology used to analyse the thing;
the results of the analysis.
s 87 amd 2012 No. 39 s 84F
(sec.87-ssec.1) A certificate purporting to be signed by the chief executive and stating any of the following matters is evidence of the matter— a stated document is one of the following things made, given, issued or kept under this Act— an appointment or decision; a notice or requirement; a record or report, or an extract from a record or report; a stated document is another document kept under this Act; a stated document is a copy of a thing mentioned in paragraph (a) or (b) ; on a stated day, or during a stated period, an appointment as an authorised person was, or was not, in force for a stated person; on a stated day, a stated person was given a stated notice under this Act; on a stated day, a stated requirement was made of a stated person; a stated amount is payable under this Act by a stated person and has not been paid.
(sec.87-ssec.2) A certificate of analysis for a thing or sample taken for analysis under this Act stating any of the following matters is evidence of the matters— the qualifications of the person (the analyst ) who conducted the analysis; the analyst received the thing from a stated person; the thing was analysed at a stated place on a stated day or during a stated period; the methodology used to analyse the thing; the results of the analysis.
(a) a stated document is one of the following things made, given, issued or kept under this Act— (i) an appointment or decision; (ii) a notice or requirement; (iii) a record or report, or an extract from a record or report;
(i) an appointment or decision;
(ii) a notice or requirement;
(iii) a record or report, or an extract from a record or report;
(b) a stated document is another document kept under this Act;
(c) a stated document is a copy of a thing mentioned in paragraph (a) or (b) ;
(d) on a stated day, or during a stated period, an appointment as an authorised person was, or was not, in force for a stated person;
(e) on a stated day, a stated person was given a stated notice under this Act;
(f) on a stated day, a stated requirement was made of a stated person;
(g) a stated amount is payable under this Act by a stated person and has not been paid.
(i) an appointment or decision;
(ii) a notice or requirement;
(iii) a record or report, or an extract from a record or report;
(a) the qualifications of the person (the analyst ) who conducted the analysis;
(b) the analyst received the thing from a stated person;
(c) the thing was analysed at a stated place on a stated day or during a stated period;
(d) the methodology used to analyse the thing;
(e) the results of the analysis.
pt.8-div.3
Offence proceedings
Offence proceedings
sec.88
Summary offences
sec.88 Summary offences
A proceeding for an offence against this Act is to be taken in a summary way under the Justices Act 1886 .
sec.89
Allegations of false or misleading information or document
sec.89 Allegations of false or misleading information or document
In any proceeding for an offence against this Act involving false or misleading information, or a false or misleading document, it is enough for a charge to state that the information or document was, without specifying which, ‘false or misleading’.
sec.90
Responsibility for acts or omissions of representative
sec.90 Responsibility for acts or omissions of representative
This section applies in a proceeding for an offence against this Act.
If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show—
the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and
the representative had the state of mind.
An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.
In this section—
representative means—
for a corporation—an executive officer, employee or agent of the corporation; or
for an individual—an employee or agent of the individual.
state of mind of a person includes—
the person’s knowledge, intention, opinion, belief or purpose; and
the person’s reasons for the intention, opinion, belief or purpose.
(sec.90-ssec.1) This section applies in a proceeding for an offence against this Act.
(sec.90-ssec.2) If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show— the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and the representative had the state of mind.
(sec.90-ssec.3) An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.
(sec.90-ssec.4) In this section— representative means— for a corporation—an executive officer, employee or agent of the corporation; or for an individual—an employee or agent of the individual. state of mind of a person includes— the person’s knowledge, intention, opinion, belief or purpose; and the person’s reasons for the intention, opinion, belief or purpose.
(a) the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and
(b) the representative had the state of mind.
(a) for a corporation—an executive officer, employee or agent of the corporation; or
(b) for an individual—an employee or agent of the individual.
(a) the person’s knowledge, intention, opinion, belief or purpose; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
sec.91
Section sec.91
s 91 om 2013 No. 51 s 224
pt.9
Matters relating to liability and indemnity
Matters relating to liability and indemnity
pt.9-div.1
Liability
Liability
sec.92
Contravention of this Act does not create civil cause of action
sec.92 Contravention of this Act does not create civil cause of action
No provision of this Act creates a civil cause of action based on a contravention of the provision.
sec.93
Act does not affect other rights or remedies
sec.93 Act does not affect other rights or remedies
This Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise.
Without limiting subsection (1) , compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached.
This section is subject to section 94 .
(sec.93-ssec.1) This Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise.
(sec.93-ssec.2) Without limiting subsection (1) , compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached.
(sec.93-ssec.3) This section is subject to section 94 .
sec.94
Protection from civil rights and remedies
sec.94 Protection from civil rights and remedies
A person does not have any civil right or remedy against a public potable water supplier in relation to the fluoridation of a public potable water supply under this Act.
sec.95
Protecting officials from liability
sec.95 Protecting officials from liability
An official is not civilly liable for an act done, or omission made, honestly and without negligence under this Act.
If subsection (1) prevents a civil liability attaching to an official, the liability attaches instead to the State.
In this section—
official means—
the Minister or the chief executive; or
a person acting under the authority of the Minister or the chief executive; or
a State analyst; or
an authorised person; or
a person acting under the direction or authority of an authorised person.
s 95 amd 2012 No. 39 s 84G
(sec.95-ssec.1) An official is not civilly liable for an act done, or omission made, honestly and without negligence under this Act.
(sec.95-ssec.2) If subsection (1) prevents a civil liability attaching to an official, the liability attaches instead to the State.
(sec.95-ssec.3) In this section— official means— the Minister or the chief executive; or a person acting under the authority of the Minister or the chief executive; or a State analyst; or an authorised person; or a person acting under the direction or authority of an authorised person.
(a) the Minister or the chief executive; or
(b) a person acting under the authority of the Minister or the chief executive; or
(c) a State analyst; or
(d) an authorised person; or
(e) a person acting under the direction or authority of an authorised person.
pt.9-div.2
Indemnity for public potable water suppliers
Indemnity for public potable water suppliers
sec.96
Indemnity
sec.96 Indemnity
The State is to indemnify a local government or a public potable water supplier (a supplier ) against all costs and expenses properly incurred, and not recovered, by it in relation to any civil proceeding in a court taken against it in relation to anything it is required or permitted to do under section 7 (an Act proceeding ).
If an Act proceeding is started against a supplier, it must immediately notify the Minister.
s 96 amd 2012 No. 39 s 84H
(sec.96-ssec.1) The State is to indemnify a local government or a public potable water supplier (a supplier ) against all costs and expenses properly incurred, and not recovered, by it in relation to any civil proceeding in a court taken against it in relation to anything it is required or permitted to do under section 7 (an Act proceeding ).
(sec.96-ssec.2) If an Act proceeding is started against a supplier, it must immediately notify the Minister.
sec.97
Minister etc. may elect to be joined as a party
sec.97 Minister etc. may elect to be joined as a party
The Minister, or a person nominated by the Minister, (the electing party ) may at any time elect to be joined in an Act proceeding as a party by notice filed in the court.
sec.98
Effect of election
sec.98 Effect of election
The electing party may, on behalf of the supplier, do anything the supplier could do as a party to the proceeding including settling any matter arising in the proceeding.
The supplier must not do anything as a party to the proceeding unless authorised to do so by the electing party.
The supplier must assist the electing party to act under subsection (1) including by executing all documents that the electing party considers necessary for that purpose.
(sec.98-ssec.1) The electing party may, on behalf of the supplier, do anything the supplier could do as a party to the proceeding including settling any matter arising in the proceeding.
(sec.98-ssec.2) The supplier must not do anything as a party to the proceeding unless authorised to do so by the electing party.
(sec.98-ssec.3) The supplier must assist the electing party to act under subsection (1) including by executing all documents that the electing party considers necessary for that purpose.
pt.10
Miscellaneous
Miscellaneous
sec.99
Delegations
sec.99 Delegations
The Minister or the chief executive may delegate his or her functions under this Act to an appropriately qualified person who is—
a public service employee of the department; or
a health service employee.
In this section—
appropriately qualified includes having the qualifications, experience or standing appropriate to the exercise of the power.
if a person is a public service employee of the department, the person’s classification level in the department
functions includes powers.
(sec.99-ssec.1) The Minister or the chief executive may delegate his or her functions under this Act to an appropriately qualified person who is— a public service employee of the department; or a health service employee.
(sec.99-ssec.2) In this section— appropriately qualified includes having the qualifications, experience or standing appropriate to the exercise of the power. if a person is a public service employee of the department, the person’s classification level in the department functions includes powers.
(a) a public service employee of the department; or
(b) a health service employee.
sec.100
Regulation-making power
sec.100 Regulation-making power
The Governor in Council may make regulations under this Act.
A regulation may be made about the following—
the keeping of records and the records to be kept;
reporting requirements including what is to be contained in reports and to whom and by whom reports are to be given;
the qualifications of persons employed in operating equipment used in relation to adding fluoride to a public potable water supply;
the undertaking of analyses of water and other things connected with a public potable water supply including the methods to be used and the times at which the analyses are to happen;
imposing a penalty of not more than 20 penalty units for a contravention of a provision of a regulation.
s 100 amd 2012 No. 39 s 84I
(sec.100-ssec.1) The Governor in Council may make regulations under this Act.
(sec.100-ssec.2) A regulation may be made about the following— the keeping of records and the records to be kept; reporting requirements including what is to be contained in reports and to whom and by whom reports are to be given; the qualifications of persons employed in operating equipment used in relation to adding fluoride to a public potable water supply; the undertaking of analyses of water and other things connected with a public potable water supply including the methods to be used and the times at which the analyses are to happen; imposing a penalty of not more than 20 penalty units for a contravention of a provision of a regulation.
(a) the keeping of records and the records to be kept;
(b) reporting requirements including what is to be contained in reports and to whom and by whom reports are to be given;
(c) the qualifications of persons employed in operating equipment used in relation to adding fluoride to a public potable water supply;
(d) the undertaking of analyses of water and other things connected with a public potable water supply including the methods to be used and the times at which the analyses are to happen;
(e) imposing a penalty of not more than 20 penalty units for a contravention of a provision of a regulation.
pt.11
Repeal
Repeal
sec.101
Repeal of Fluoridation of Public Water Supplies Act 1963
sec.101 Repeal of Fluoridation of Public Water Supplies Act 1963
The Fluoridation of Public Water Supplies Act 1963, No. 34 is repealed.
pt.12
Transitional provisions for South East Queensland Water (Restructuring) and Other Legislation Amendment Act 2012
Transitional provisions for South East Queensland Water (Restructuring) and Other Legislation Amendment Act 2012
sec.102
Definitions for pt 12
sec.102 Definitions for pt 12
In this part—
amending Act means the South East Queensland Water (Restructuring) and Other Legislation Amendment Act 2012 .
commencement means the commencement of this section.
former , in relation to a provision, means the provision as in force immediately before the repeal or amendment of the provision under the amending Act.
relevant public potable water supply see former section 6.
s 102 ins 2012 No. 39 s 85
sec.103
Adding fluoride to relevant public potable water supply continues
sec.103 Adding fluoride to relevant public potable water supply continues
This section applies to a public potable water supplier for a public potable water supply that is, immediately before the commencement, adding fluoride to the water supply.
From the commencement, the public potable water supplier must continue to add fluoride to the water supply until the local government in whose area the potable water is supplied makes a decision under section 7 to cease to add fluoride to the water supply.
This section applies despite the repeal of former sections 7 and 11.
s 103 ins 2012 No. 39 s 85
(sec.103-ssec.1) This section applies to a public potable water supplier for a public potable water supply that is, immediately before the commencement, adding fluoride to the water supply.
(sec.103-ssec.2) From the commencement, the public potable water supplier must continue to add fluoride to the water supply until the local government in whose area the potable water is supplied makes a decision under section 7 to cease to add fluoride to the water supply.
(sec.103-ssec.3) This section applies despite the repeal of former sections 7 and 11.
sec.104
Exemptions and applications for exemptions from requirements to add fluoride to relevant public potable water supply
sec.104 Exemptions and applications for exemptions from requirements to add fluoride to relevant public potable water supply
Subsection (2) applies to an exemption given under former section 8 from the requirement under former section 7 for a public potable water supplier for a relevant public potable water supply to add fluoride to the water supply.
On the commencement, the exemption is of no effect.
An application for an exemption, made under former section 8 but not decided before the commencement, is taken never to have been made.
s 104 ins 2012 No. 39 s 85
(sec.104-ssec.1) Subsection (2) applies to an exemption given under former section 8 from the requirement under former section 7 for a public potable water supplier for a relevant public potable water supply to add fluoride to the water supply.
(sec.104-ssec.2) On the commencement, the exemption is of no effect.
(sec.104-ssec.3) An application for an exemption, made under former section 8 but not decided before the commencement, is taken never to have been made.
sec.105
Dissolution of committee
sec.105 Dissolution of committee
This section applies to the Queensland Fluoridation Committee established under former section 76.
On the commencement, the committee is dissolved and each person who, immediately before the commencement, was a member of the committee goes out of office.
No compensation is payable to a member because of subsection (2).
s 105 ins 2012 No. 39 s 85
(sec.105-ssec.1) This section applies to the Queensland Fluoridation Committee established under former section 76.
(sec.105-ssec.2) On the commencement, the committee is dissolved and each person who, immediately before the commencement, was a member of the committee goes out of office.
(sec.105-ssec.3) No compensation is payable to a member because of subsection (2).
Source text: opening excerpt
Sourced from Queensland Legislation (legislation.qld.gov.au), CC BY 4.0.
pt.1 Preliminary
Preliminary
pt.1-div.1 Introduction
Introduction
sec.1 Short title
sec.1 Short title
This Act may be cited as the Water Fluoridation Act 2008 .
sec.2 Commencement
sec.2 Commencement
This Act commences on a day to be fixed by proclamation.
sec.3 Act binds all persons
sec.3 Act binds all persons
This Act binds all persons, including the State.
However, nothing in this Act makes the State liable to be prosecuted for an offence.
(sec.3-ssec.1) This Act binds all persons, including the State.
(sec.3-ssec.2) However, nothing in this Act makes the State liable to be prosecuted for an offence.
pt.1-div.2 Object
Object
sec.4 Object of Act
sec.4 Object of Act
The object of this Act is to promote good oral health in Queensland by the safe fluoridation of public potable water supplies.
s 4 amd 2012 No. 39 s 80
pt.2 Interpretation
Interpretation
sec.5 Definitions
sec.5 Definitions
The dictionary in the schedule defines particular words used in this Act.
Section sec.6
s 6 om 2012 No. 39 s 81
pt.3 Fluoridation of public potable water supplies
Fluoridation of public potable water supplies
sec.7 Decisions about fluoridation of public potable water supplies
sec.7 Decisions about fluoridation of public potable water supplies
A local government may decide that fluoride be added to the water supply that supplies potable water to the community in its local government area if it is satisfied the decision is in the best interests of the community.
If a local government makes a decision under subsection (1) —
if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and
the water supplier must add fluoride, or continue to add fluoride, to the water supply.
A local government may decide that fluoride not be added to the water supply that supplies potable water to the community in its local government area if it is satisfied the decision is in the best interests of the community.
If a local government makes a decision under subsection (3) —
if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and
the water supplier must not add fluoride, or must cease to add fluoride, to the water supply.
A local government may, before making a decision under subsection (1) or (3) , consult with the public potable water supplier for the potable water supply about cost implications, infrastructure arrangements and potential impact on water supply inside or outside the local government area.
In this section—
community , of a local government, includes part of the community of the local government.
s 7 sub 2012 No. 39 s 82
(sec.7-ssec.1) A local government may decide that fluoride be added to the water supply that supplies potable water to the community in its local government area if it is satisfied the decision is in the best interests of the community.
(sec.7-ssec.2) If a local government makes a decision under subsection (1) — if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and the water supplier must add fluoride, or continue to add fluoride, to the water supply.
(sec.7-ssec.3) A local government may decide that fluoride not be added to the water supply that supplies potable water to the community in its local government area if it is satisfied the decision is in the best interests of the community.
(sec.7-ssec.4) If a local government makes a decision under subsection (3) — if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and the water supplier must not add fluoride, or must cease to add fluoride, to the water supply.
(sec.7-ssec.5) A local government may, before making a decision under subsection (1) or (3) , consult with the public potable water supplier for the potable water supply about cost implications, infrastructure arrangements and potential impact on water supply inside or outside the local government area.
(sec.7-ssec.6) In this section— community , of a local government, includes part of the community of the local government.
Analytical functions are allocated to State analysts appointed by the chief executive and to approved laboratories, with obligations about certificates of analysis and methodology disclosure (Pt 6, ss 69-75). The Act includes evidence provisions that a certificate signed by the chief executive or a certificate of analysis is admissible evidence of matters set out in the certificate (s 87). On civil liability, the Act states it does not create a civil cause of action for contraventions (s 92) and denies civil rights or remedies against a public potable water supplier in relation to fluoridation under the Act (s 94). Separate protections and indemnities attach to officials and suppliers: officials who act honestly and without negligence are not civilly liable (s 95); the State indemnifies local governments and suppliers against costs of civil proceedings arising from acts required or permitted under s 7 (s 96), and the Minister may elect to join such proceedings on behalf of the supplier (ss 97-98). The Act gives regulation-making powers to the Governor in Council including record-keeping, reporting, qualifications and analytic methods (s 100). The Act repeals the prior Fluoridation of Public Water Supplies Act 1963 (s 101) and contains transitional provisions for a 2012 amendment relating to SEQ water restructuring (Pt 12).
The statutory design therefore centralises decision authority at local government level for whether to fluoridate, imposes operational duties on public potable water suppliers, creates regulatory compliance and inspection architecture, restricts who may add fluoride (s 14), and limits private civil recourse for matters arising from statutory fluoridation while providing State indemnification and protections for officials.
Main concepts
The Act is framed around a small set of recurring statutory concepts with technical and operational consequences:
Decision-making for fluoridation (s 7). The local government is the statutory decision-maker about adding or ceasing to add fluoride to the potable water supply that serves its community, subject to its satisfaction that the decision is in the best interests of the community. The concept of “community” includes parts of the local government’s community (s 7(6)).
Public potable water supplier. The Act distinguishes between the local government and the public potable water supplier. Where the local government is not the supplier, the local government must notify the supplier of its decision and the supplier must act in accordance with that decision (s 7(2), (4)). The supplier is also a primary regulated subject for enforcement and remedial powers.
Obligations to avoid cross-jurisdictional impact (s 8). If a public potable water supplier is required under s 7 to add or cease to add fluoride, it must not affect another local government’s water security, water supply or fluoridation without that other local government’s agreement (s 8). This introduces a constraint on operational changes that have cross-boundary effects.
Cost allocation (s 9). If a local government makes a fluoridation decision but is not the water supplier, and the supplier incurs compliance costs in implementing the decision, the local government must pay the supplier’s compliance costs (s 9). The Act therefore directs who bears marginal implementation costs when decision-making and service provision are split between entities.
Prescriptive technical compliance by regulation (s 12). Public potable water suppliers that add fluoride must add it in a form prescribed by regulation and comply with requirements prescribed by regulation relating to addition and maintaining fluoride levels (s 12). The regulations therefore will carry detailed technical obligations, with potential penalties for contravention referenced to Pt 5 Div 3.
Notification and publication duties (s 13). Both local governments and suppliers have statutory notification and publication duties to the chief executive and to the public (s 13). Suppliers must give at least 30 days’ notice before adding or ceasing to add fluoride.
Who may add fluoride (s 14). Only the public potable water supplier, its employees or agents acting under authority, or persons acting under s 60 (chief executive authorised action) may add fluoride to a public potable water supply. There is a criminal penalty (maximum 100 penalty units) for unauthorised addition (s 14).
Authorised persons and enforcement architecture (Pt 5). The chief executive appoints authorised persons (s 26). Authorised persons enforce and monitor compliance, are issued identity cards (ss 24, 28-29), have powers of entry to places with potable water infrastructure (s 33), and may apply for warrants and execute enforcement steps including seizure (ss 35-51). The chief executive directs authorised persons (s 24(2)).
Remedial notices and chief executive intervention (ss 58-61). Where an authorised person reasonably believes a supplier is contravening or likely to repeat contraventions, and the matter can be remedied, a remedial notice can be issued requiring remedial steps within a reasonable period (s 59). Compliance with such a notice precludes prosecution for the underlying offence linked to the notice unless the supplier fails to comply without reasonable excuse (s 59(7)). If the supplier fails to comply, the chief executive may take reasonable action to remedy the contravention and recover costs as a debt (ss 60-61).
Analytical and evidentiary system (Pt 6 and Pt 8). State analysts are appointed to analyse samples and may delegate to approved laboratories meeting accreditation criteria set by regulation (ss 69, 73). Certificates of analysis must indicate the methodology used (s 75) and certificates signed by the chief executive are evidence of specified matters (s 87).
Liability, protection and indemnity (Pt 9). The Act states that contravention does not create a civil cause of action (s 92) and denies civil remedies against suppliers in relation to fluoridation under the Act (s 94). Officials acting honestly and without negligence are protected from civil liability (s 95), with any prevented liability attaching to the State. The State indemnifies local governments and public potable water suppliers against costs properly incurred and not recovered in civil proceedings arising from things they are required or permitted to do under s 7 (s 96).
Regulation-making power (s 100). The Governor in Council may make regulations about records, reporting, operator qualifications, analytical methods and may impose penalties up to 20 penalty units for contraventions of regulations.
Each of these concepts has concrete operational implications: who decides, who implements, who pays, where technical rules are supplied (regulations, certificates), what enforcement options exist, what evidentiary presumptions support prosecutions, and how civil exposure and State risk are allocated.
Who it affects
Primary affected actors and the statutory consequences for each are:
Local governments (s 7, s 9, s 13). Local governments are the decision-makers on whether fluoride is to be added to the potable water supply for their community (s 7(1), (3)). If they make a decision and they are not the supplier, they must notify the supplier (s 7(2)(a), (4)(a)) and must notify the chief executive and publish the fluoridation decision (s 13(2)). If they are not the supplier but their decision imposes compliance costs on the supplier, they must pay those compliance costs (s 9). They also carry the political responsibility for deciding “best interests of the community” and the administrative obligation to publish decisions.
Public potable water suppliers (s 7, s 12, s 13, Pt 5). Suppliers must act in accordance with the local government’s decision: add, continue, cease or not add fluoride as required (s 7(2)(b), (4)(b)). Suppliers are subject to technical requirements for fluoride form and maintenance as prescribed by regulation (s 12). Suppliers must provide fluoridation notices to the chief executive and publish them at least 30 days before implementing changes (s 13(3)). Suppliers are the primary targets of monitoring and enforcement: authorised persons may issue remedial notices to suppliers and the chief executive may act and recover costs if remedial notices are not complied with (ss 59-61). Suppliers are protected from civil claims in relation to statutory fluoridation (s 94) and are indemnified by the State against costs of civil proceedings arising from acts required or permitted under s 7 (s 96), subject to the supplier notifying the Minister when proceedings start (s 96(2)).
The chief executive (Pt 5, Pt 6, s 24, ss 60-61, s 99). The chief executive appoints authorised persons (s 26) and State analysts (s 69), issues directions to authorised persons (s 24(2)), may authorise persons to take action where remedial notices are not complied with (s 60), and may recover costs from suppliers (s 61). The chief executive also issues identity cards (s 28) and signs evidentiary certificates (s 87). The chief executive’s discretion in appointing authorised persons and authorising remedial action is a central administrative power.
Authorised persons (Pt 5). Appointed by the chief executive (s 26), authorised persons enforce and monitor compliance (s 25), possess powers of entry (s 33), testing and sampling (s 40), seizure (ss 43-51) and may issue remedial notices (ss 58-59) within the limits of appointment conditions (s 27). They operate under the directions of the chief executive (s 24).
State analysts and approved laboratories (Pt 6, ss 69-75). State analysts are appointed to conduct analysis or coordinate with approved laboratories (s 69, s 74). Approved laboratories must meet accreditation criteria prescribed by regulation and be approved by the chief executive (s 73). Certificates of analysis must indicate methodology (s 75). These actors affect the evidentiary baseline for enforcement and the operational quality assurance of fluoridation.
Members of the public and occupiers of premises (ss 33-34, 39, 40). People who occupy places containing public potable water supplies are affected by authorised persons’ entry and inspection powers (s 33). Where consent is sought, occupiers must be informed of purpose and that consent is voluntary and can sign acknowledgements (s 34). Occupiers and persons at the place may be required to give reasonable help or information (s 40), subject to protections against self-incrimination for individuals (ss 41-42).
Persons who might add fluoride (s 14). The Act makes it an offence to add fluoride to a public potable water supply unless the person is the supplier, an employee or agent acting under authority, or acting under s 60 (chief executive authorised action) (s 14). Unauthorised additions carry a maximum penalty (100 penalty units).
Officials, Minister and the State (Pt 9). Officials (Minister, chief executive, state analysts, authorised persons, and their agents) are protected from civil liability if acting honestly and without negligence; the prevented liability attaches instead to the State (s 95). The State carries indemnity obligations to suppliers under s 96 and may elect to be joined to civil proceedings (ss 97-98).
Anyone providing documents, information or assistance to an authorised person (ss 54-56, 66-67). Statutory duties exist to produce documents, certify copies and provide information when lawfully required; failure to comply attracts penalties (commonly maximum 50 penalty units for production/certification failures and up to 100 penalty units for false or misleading statements/documents) (ss 55-56, 66-67).
In practice, therefore, the Act affects local government decision-makers, water utilities and their operational staff, departmental officials and enforcement officers, laboratories and analysts, and occupiers of infrastructure. It affects residents indirectly via local government decisions and the operational continuity of water supplies, and it reallocates certain financial consequences (compliance costs) to the local government that makes the fluoridation decision when the supplier is a separate entity (s 9).
Key duties and rights
This section lists the principal statutory duties and rights created by the Act and cites the relevant provisions.
Duties on local governments
Decide whether fluoride is to be added to or ceased in the potable water supply for their community and be satisfied the decision is in the best interests of the community (s 7(1), (3)). Community may be a part of the local government’s community (s 7(6)).
If the local government is not the public potable water supplier, give notice of its decision to the supplier (s 7(2)(a), (4)(a)).
Give notice to the chief executive stating that a fluoridation decision has been made and publish the notice in a publicly accessible way (s 13(2)).
Duties on public potable water suppliers
If notified under s 7, add fluoride or continue to add fluoride, or not add or cease to add fluoride, according to the local government’s decision (s 7(2)(b), (4)(b)).
Add fluoride only in a form prescribed under regulation and comply with regulatory requirements for addition and maintenance of fluoride (s 12).
Give a fluoridation notice to the chief executive and publish it at least 30 days before adding or ceasing to add fluoride (s 13(3)). The fluoridation notice must state the local government decision and the intended start day (s 13(4) definition).
Comply with remedial notices issued by authorised persons requiring contraventions to be remedied (s 59(6)).
Duties on authorised persons and the chief executive
The chief executive may appoint authorised persons and issue directions; authorised persons must act under those directions (s 24(2), s 26).
Authorised persons must produce identity cards when exercising powers in relation to another person (s 29).
Authorised persons may enter places containing public potable water supplies or related equipment, search, inspect, sample and seize in specified circumstances (ss 33, 40, 43-45).
Authorised persons may issue remedial notices to public potable water suppliers where specified criteria are met (s 59).
Rights and protections
The public potable water supplier has a right to be paid its compliance costs by the local government when it is not the decision-maker and incurs costs in complying with a fluoridation decision (s 9).
Individuals required to provide information or help that might incriminate them have a statutory reasonable excuse not to comply (ss 41(2), 42(2)).
Certificates signed by the chief executive and certificates of analysis are admissible evidence of specified matters (s 87).
Officials acting honestly and without negligence are not civilly liable; prevented liability attaches to the State (s 95).
The State indemnifies local governments or suppliers against costs and expenses properly incurred and not recovered in civil proceedings connected with complying with s 7 (s 96).
Specific prohibitions and offences
Unauthorised persons must not add fluoride to a public potable water supply (s 14). Maximum penalty: 100 penalty units.
It is an offence to obstruct an authorised person, obstruct the chief executive in remedial action, to tamper with seized things, to provide false or misleading statements or documents, or to impersonate an authorised person; the Act specifies maximum penalties for these offences (see ss 41, 42, 46, 62, 65-68). Examples: tampering with seized things is 100 penalty units (s 46); making false or misleading statements to an authorised person is 100 penalty units (s 66).
Failure to comply with document production and certification requirements carries a maximum penalty of 50 penalty units (ss 55-56).
Procedure rights and safeguards
Consent-based entry requires the occupier be informed of purpose and that consent is voluntary; an occupier may be asked to sign an acknowledgment and the onus of proof in proceedings about consent shifts to the person relying on its lawfulness if no such acknowledgement is produced (s 34).
Entry powers do not authorise entry to parts of a place used for residence (s 33(3), s 60(5)).
Warrants must be supported by sworn written applications stating grounds and may be issued only if reasonable grounds exist that relevant evidence is at the place or will be within seven days (ss 35-36). Duplicate warrants and electronic application procedures are prescribed (s 37). Warrants specify the period (up to 14 days) they operate (s 36(2)(j)).
Administrative discretions and obligations
The chief executive may authorise persons to take action to remedy contraventions and may recover costs from the supplier as a debt to the State (ss 60-61).
The chief executive may approve laboratories for analysis where the laboratory has resources and accreditation prescribed under regulation (s 73).
The Minister or chief executive may delegate functions to qualified public service or health service employees (s 99).
Collectively the duties require alignment between decision-makers (local government), implementers (suppliers), the enforcing department (chief executive and authorised persons), analytical capacity (State analysts and approved labs), and the public via notification duties. The Act places several operational and compliance obligations on suppliers and investigative/remedial authorities on the department, while shielding suppliers and officials from certain civil liabilities and providing State indemnities.
Penalties and enforcement
The Act establishes enforcement architecture combining administrative remedial powers, criminal offences and civil recovery mechanisms. Enforcement responsibilities rest primarily with authorised persons appointed by the chief executive (ss 24-26), operating under the chief executive’s directions (s 24(2)).
Entry, search and seizure
Authorised persons may enter places with occupier consent, public places open to the public, places containing a public potable water supply or related equipment, or by warrant (s 33). Entry does not authorise entry to residential parts (s 33(3)). If consent is sought, the occupier must be told the purpose and that consent is voluntary; an occupier may sign an acknowledgement (s 34). If a warrant is in use, authorised persons must ordinarily identify themselves, give a copy of the warrant and allow the occupier an opportunity to permit entry without force, unless immediate entry is required (s 39).
After entering, authorised persons may search, inspect, measure, test, photograph or film, take things or samples for analysis, copy or temporarily remove documents for copying, bring necessary personnel and equipment, and require reasonable help or information from occupiers or persons at the place (s 40). Warnings are required when making requirements to provide help or information, given failure to comply may be an offence (s 40(4), ss 41-42).
Seizure is authorised where the seized item is reasonably believed to be evidence of an offence (s 43), and where entry is with consent or warrant, seizure must be consistent with the purpose of entry or the warrant’s terms (s 44). Procedures for securing seized items, issuing receipts, return, forfeiture and destruction are set out (ss 45-53). The authorised person may destroy seized matter if it is contaminated or poses an immediate risk to public health or safety (s 53).
Warrants and electronic procedures
Warrants require a sworn written application stating grounds (s 35). Magistrates may demand further information and require statutory declarations (s 35(4)). A magistrate issues a warrant only where there are reasonable grounds to suspect particular evidence of an offence exists at, or will be at, the place within seven days (s 36). Warrants must set out a number of particulars including the authorised person, particular offence, evidence to be seized and a 14-day expiry period (s 36(2)(k)).
Electronic applications for warrants are permitted in urgent or special circumstances (s 37(1)). Duplicate warrants may be issued and treated as effectual as the original; if the original is not produced in proceedings, the onus is on the party relying on the warrant to prove lawfulness (s 37(8)). Defects do not invalidate a warrant unless the defect affects the substance in a material particular (s 38).
Remedial notices and chief executive action
Where an authorised person reasonably believes a supplier is contravening or likely to repeat a contravention and the matter can be remedied, the authorised person may issue a remedial notice specifying the relevant provision, how it has been contravened and the reasonable period to remedy it (s 59(1)-(4)). The supplier must comply (s 59(6)). The remedial notice may propose steps considered necessary to remedy the contravention (s 59(4)).
If compliance with the remedial notice would otherwise constitute the offence, the supplier cannot be prosecuted for that offence unless it later fails to comply without a reasonable excuse (s 59(7)). This makes remedial notices a form of administrative compliance tool that can defer prosecution where the supplier cooperates.
If the supplier fails to comply, the chief executive may take action reasonably necessary to remedy the contravention, authorise persons to enter places and take onto them persons, equipment or materials reasonably required to take action, and recover reasonable costs as a debt from the supplier (ss 60-61). The Act also makes it an offence to obstruct the chief executive or authorised persons in taking such action (s 62).
Criminal offences and penalties
Unauthorised addition of fluoride: maximum penalty of 100 penalty units (s 14).
Failure to return identity card when ceasing to be authorised: maximum 20 penalty units (s 32).
Failure to help authorised person (reasonable help): maximum 50 penalty units (s 41).
Failure to give information required under s 40(3)(g): maximum 50 penalty units (s 42). Reasonable excuse exists if answer would tend to incriminate the individual (s 42(2)).
Tampering with seized things: maximum 100 penalty units (s 46).
Requirements to move or retain things for seizure: failure to comply attracts maximum 100 penalty units; costs borne by the department (s 47).
Failure to return a thing when required: maximum 100 penalty units; costs borne by the department (s 48).
Obstruction of authorised person: maximum 100 penalty units (s 65).
Obstruction of chief executive or authorised persons taking action: maximum 100 penalty units (s 62).
Giving false or misleading statements to an authorised person: maximum 100 penalty units (s 66).
Giving false or misleading documents: maximum 100 penalty units, with an exception if the person notifies the authorised person and provides correct information where available (s 67).
Impersonating an authorised person: maximum 100 penalty units (s 68).
Failing to comply with document production requirement: maximum 50 penalty units (s 55). Failure to comply cannot be excused by the risk of self-incrimination for document production (s 55(2)). Failure to certify copies: maximum 50 penalty units (s 56).
Summary criminal procedure
Proceedings for offences under the Act are to be taken in a summary way under the Justices Act 1886 (s 88). The Act also contains evidentiary aids and presumptions,appointments of the chief executive and authorised persons and their authority are presumed unless proof is required (s 85), and certificates from the chief executive and certificates of analysis are evidentiary (s 87).
Administrative safeguards and compensation
Where property is damaged in exercise of powers, authorised persons must immediately give particulars of the damage to the apparent owner or leave a conspicuous notice; the authorised person may state beliefs about latent defects (s 63).
Persons who incur loss or expense because of the exercise or purported exercise of powers under Division 2 (entry, search, seizure), other than destruction under s 53, may claim compensation from the State (s 64). Compensation proceedings may be brought in an appropriate court or in the course of an offence proceeding; a court may order compensation only if it considers the order just in the circumstances (s 64).
Overall, enforcement combines administrative remediation with criminal penalties for obstruction and falsehoods, evidentiary streamlining via certificates, and mechanisms for departmental intervention and cost recovery, balanced by statutory compensation entitlements where people suffer loss from exercise of powers.
How it interacts with other laws
The Act cross-references and sits alongside other statutory regimes in several specific ways described in the text.
Summary procedure and the Justices Act 1886 (s 88). The Act requires proceedings for offences under it to be taken in a summary way under the Justices Act 1886 (s 88). That procedural linkage determines court venue, time limits and summary hearing procedures for prosecutions under the Act.
Magistrates Act 1991 and Magistrates Court link (s 37). Section 37 defines “relevant magistrates court” in relation to a magistrate as the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991. Warrants issued under the Act and duplicate warrant procedures incorporate the relevant magistrates court for filing and procedural handling (s 37(10) and (6)).
Interaction with prior repeal (s 101). The Act explicitly repeals the Fluoridation of Public Water Supplies Act 1963 (s 101) and contains transitional provisions dealing with continuance of fluoridation programs, treatment of prior exemptions and dissolution of prior committees (Pt 12, ss 103-105). Those transitional provisions are specific statutory measures to manage continuity following the 2012 amendments.
Administrative law and delegation (s 99). The Minister and the chief executive may delegate their functions under the Act to appropriately qualified departmental or health service employees (s 99). This internal administrative delegation sits within broader public administration law principles about power delegation and reviewability, although the Act itself does not prescribe internal review mechanisms.
Evidence and certificates (s 87). The Act provides that certain certificates purporting to be signed by the chief executive are evidence of appointments, notices, records, amounts unpaid and other administrative facts, and that certificates of analysis are evidence of analytical matters. These provisions interact with evidence law by creating statutory evidentiary presumptions to streamline prosecutions and administrative proceedings.
Regulatory architecture and penalty limits (s 100). The Act empowers the Governor in Council to make regulations about record-keeping, reporting, operator qualifications and analytical methods. Regulations may impose penalties of up to 20 penalty units. This regulation-making power interacts with other regulatory regimes such as environmental or health-related regulations, and any regulation under this Act must respect the limits set out in s 100.
Civil liability and State indemnity (ss 92-98). The Act makes express statements about civil causes and remedies. It declares that contravention of the Act does not create a civil cause of action (s 92) and that there is no civil right or remedy against a public potable water supplier in relation to fluoridation under this Act (s 94). Officials acting honestly and without negligence are not civilly liable for acts or omissions under the Act; prevented liability attaches to the State (s 95). The State indemnifies local governments and suppliers against costs of civil proceedings arising from acts required or permitted under s 7 (s 96). These provisions interact with general civil and tort law: they remove a statutory basis for civil action while leaving other non-statutory common law or statutory causes intact (s 93 preserves other rights and remedies), and they reallocate risk from officials and suppliers to the State in certain circumstances.
Criminal procedure and warrant law (ss 35-38, 37). Warrant procedures are tied to magistrates and the Magistrates Court (s 37). The Act sets limits on warrants (e.g. evidence must be at the place or expected within seven days, s 36) which operate within the broader legal standards for warrants under criminal procedure.
Public health and water regulatory regimes. Although the Act mandates fluoridation processes and technical regulation by subsidiary regulation (s 12, s 100), it sits alongside other statutory regimes governing public health, water quality, environmental protection and occupational qualifications. The Act does not itself define detailed technical standards; it defers to regulations for methods, qualifications and analysis (s 100), so the practical intersection with other statutory standards depends on regulation drafting and other agencies’ responsibilities.
Statutory evidentiary presumptions vs common law. The evidentiary aids in Pt 8 (s 85, s 86, s 87) create presumptions about appointments, signatures and documentary facts. These statutory presumptions interact with the usual common law burden and standards of proof, shifting documentary proof burdens in administrative and criminal proceedings connected to the Act.
Practitioners must therefore consider this Act alongside criminal procedure statutes (Justices Act 1886, Magistrates Act 1991), administrative law principles affecting delegation and review, public health and water regulation standards, and civil liability and indemnity frameworks. The Act expressly adjusts civil exposure and evidence rules for fluoridation activity, which has the effect of concentrating litigation against the State in certain circumstances (ss 95-96), while procedural pathways for enforcement and warrants are anchored in magistrates’ court practice (ss 35-37).
Amendment history
The text of the Act bears editorial notes identifying specific amendments and omissions, chiefly from two amendment events recorded in the schedule of annotations: the South East Queensland Water (Restructuring) and Other Legislation Amendment Act 2012 (cited as 2012 No. 39 in the annotations) and a later amendment in 2023 (No. 9).
Key amendment annotations present in the provided text:
s 4 (object of Act) is annotated “amd 2012 No. 39 s 80”, indicating amendment in 2012 by that Act (s 80 of the amending Act).
s 7 is annotated “s 7 sub 2012 No. 39 s 82”, and the section shows explicit subparagraph numbering consistent with a 2012 substitution.
s 8 and s 9 each bear “sub 2012 No. 39 s 82” annotations, indicating related amendments in 2012; these sections appear to have been modified or substituted by the 2012 Act.
Several sections are explicitly marked “om 2012 No. 39 s 81” or “om 2012 No. 39 s 84A” or “om 2012 No. 39 s 84D” in the text (for example sec.6, secs 10-11, secs 15-23, secs 76-83 and others). These notations indicate those sections were omitted by the 2012 amending Act. Where the Act text shows “s 76 om 2012 No. 39 s 84D”, that indicates section 76 was omitted by section 84D of the 2012 Act.
s 13 carries dual annotations: “s 13 sub 2012 No. 39 s 83” and “amd 2023 No. 9 s 41”, indicating it was substituted in 2012 and subsequently amended in 2023 (No. 9, s 41).
s 14 is annotated “amd 2012 No. 39 s 84”, showing amendment in 2012.
Pt 12 (Transitional provisions) contains several sections inserted by s 85 of the 2012 Act (e.g. s 102 ins 2012 No. 39 s 85; s 103 ins 2012 No. 39 s 85; s 104 ins 2012 No. 39 s 85; s 105 ins 2012 No. 39 s 85), indicating those transitional provisions were added with the 2012 reforms.
s 73, s 74 and Pt 6 sections show no amendment annotations in the provided text beyond the general 2012 references; however ss 69-70 and other Pt 6 sections were retained and structured with appointment/qualification language.
s 85-87 in Pt 8 are annotated “s 85 amd 2012 No. 39 s 84E” and “s 87 amd 2012 No. 39 s 84F”, indicating amendment in 2012 to evidentiary provisions.
s 95 is annotated “s 95 amd 2012 No. 39 s 84G” and s 100 annotated “s 100 amd 2012 No. 39 s 84I”.
Concrete changes shown in the text
Repeal of the Fluoridation of Public Water Supplies Act 1963 is explicit (s 101). That repeal is the statutory disposal of the prior legislative framework and was carried out by the operative Act.
Transitional provisions (Pt 12) address continuation of existing fluoridation where a supplier was already adding fluoride immediately before commencement (s 103), cancellation of former exemptions (s 104), and dissolution of the Queensland Fluoridation Committee established under a now-repealed provision (s 105).
Limitations of the provided source for amendment history
The annotated notes identify 2012 and 2023 amending instruments, and omit or substitute certain sections, but the text does not include full historic versions or tracks the granular content of each amendment beyond the insertion/omission and section numbers mentioned. The source does not summarise policy reasons for each amendment beyond where the new sections appear. The text also does not supply commencement dates for each amendment beyond the general commencement provision (s 2), although the transitional Pt 12 ties some changes to the commencement of the 2012 amending Act.
For practitioners requiring a detailed timeline or the exact historical text as enacted at each stage, the statutory notes here indicate the key amending instruments and the affected sections (notably 2012 No. 39 and 2023 No. 9). To reconstruct the full legislative history and compare versions, consult the Queensland legislation database for the original Act as enacted and for the 2012 and 2023 amending Acts (the Act text supplies amending section references: s 80-85 and s 83-84F/G/I etc of the 2012 Act and s 41 of the 2023 Act for s 13). The provided annotations are sufficient to identify which parts of the Act were substituted or omitted by the 2012 reforms and that at least one technical amendment to the notification regime was made in 2023.
Litigation history
The Act text contains no judicial decisions or litigation authorities. There are no cases named, cited or summarised in the provided legislation. The Act does prescribe procedural and evidentiary routes for enforcement,summary proceedings under the Justices Act 1886 (s 88), magistrates’ warrant procedures (ss 35-37) and evidentiary certificates signed by the chief executive (s 87),but it does not reference any court determinations interpreted as binding on or illustrative of the Act’s operation.
Consequently, the source contains no litigation history to analyse. Key implications for litigation practice from the Act text itself include:
Summary offence proceedings (s 88): prosecutions under the Act will be conducted in summary manner under the Justices Act 1886, so practice and appellate pathways for summary offences will apply.
Evidentiary streamlining (s 87): certificates from the chief executive and certificates of analysis are treated as evidence of specified facts, which may reduce the need for viva voce proof of certain administrative and analytical matters in prosecutions.
Burden rules for warrant duplicate production (s 37(8)): where an original warrant is not produced, the onus is on the person relying on the lawful exercise of a power to prove a warrant authorised the exercise, which may become a contested evidentiary issue in litigation.
Representative responsibility (s 90): proceedings for offences may attribute state of mind and conduct of representatives to corporations and principals, subject to a defence that reasonable diligence could not have prevented the act or omission. That provision shapes corporate liability strategy in prosecutions.
Civil proceedings and State indemnity (ss 92-98): the Act removes statutory civil causes based on contravention, bars civil remedies against suppliers under the Act (s 94), protects officials from civil liability (s 95) and indemnifies suppliers and local governments (s 96). These provisions will affect the structure and parties to civil litigation related to fluoridation,claims may be instead directed at the State in some circumstances, and the State may elect to join as a party (s 97).
Practitioners seeking case law on the operation of these provisions must look beyond the Act text to court databases and relevant administrative law and criminal cases that interpret these statutory terms in context. The Act itself provides a map of the likely litigation issues (eg authorisation, warrant validity, evidentiary certificates, costs recovery, indemnity) but supplies no judicial interpretation.
Gotchas
The Act contains several operationally significant features and potential traps for the unwary practitioner or operator. These are concrete statutory mechanisms to which careful compliance attention is required.
Separation of decision-maker and supplier allocates costs to the decision-maker (s 9)
If a local government that is not the public potable water supplier decides to add or cease fluoride, the local government must pay the supplier’s compliance costs (s 9). The “compliance costs” concept is not defined in detail in the Act, so disputes may arise over what costs are “incurred in complying” with the local government’s decision. Local governments should budget for and document foreseeable supplier costs; suppliers should document costs carefully to support recovery.
Remedial notices can bar prosecution for the underlying contravention if complied with (s 59(7))
An authorised person’s remedial notice, if complied with, means the supplier cannot be prosecuted for the offence underlying the notice unless it later fails to comply without reasonable excuse. This makes remedial notices an important tactical tool for suppliers: compliance with a remedial notice can immunise them from prosecution related to that contravention, but failure to comply exposes them to both remedial action by the chief executive and prosecution.
Chief executive may act and recover costs as a debt (ss 60-61)
If the supplier fails to comply with a remedial notice, the chief executive may take reasonable action to remedy the contravention and recover reasonable costs as a debt. Recoverability as a debt may have commercial consequences for suppliers, and the Act requires costs to be reasonable. The Act does not set an internal administrative review or appeal mechanism for costs recovery; suppliers should seek written particulars and contemporaneous records.
Civil remedies against suppliers are limited while indemnities reside with the State (ss 92-96)
The Act disclaims a civil cause of action based on contravention (s 92) and states there is no civil right or remedy against a public potable water supplier in relation to fluoridation under the Act (s 94). At the same time, the State indemnifies suppliers against civil proceedings arising from their statutory actions under s 7 (s 96). Practically, this means private plaintiffs may have fewer routes to sue suppliers for statutory fluoridation acts, and defendants may find litigation management is undertaken or influenced by the State (s 97-98). Consider carefully whether alternative common law or statutory causes of action remain available under s 93.
Who may add fluoride is narrowly defined (s 14)
Only the public potable water supplier, its employees or agents acting under authority, or persons acting under s 60 may add fluoride (s 14). Adding fluoride outside these categories carries a maximum penalty of 100 penalty units. Ensure clear authorisation chains and written delegations to avoid criminal exposure for unauthorised persons.
Entry and consent rules have specific constraints (ss 33-34, 39)
While authorised persons may enter places containing potable water infrastructure without a warrant where consent is given or where the place is public, they may not enter residential parts of places under s 33(3). Consent-based entries require informing the occupier of purpose and voluntariness (s 34), and if an acknowledgement is not produced in proceedings the onus is on the person relying on consent to prove it (s 34(6)). Document consent processes and retain signed acknowledgements where possible.
Warrant duplicate and proof burdens (s 37(5), (8))
Duplicate warrants are as effectual as originals (s 37(5)), but where the original warrant is not produced in proceedings the onus lies on the person relying on the lawfulness of the exercise to prove a warrant authorised the exercise (s 37(8)). Keep originals and court filings to avoid evidentiary disputes.
Document production cannot use self-incrimination as an excuse (s 55(2))
For document production requirements, it is not a reasonable excuse to refuse on the ground that compliance might tend to incriminate the person (s 55(2)). This contrasts with oral information requests where self-incrimination can be relied upon (ss 41(2), 42(2)). Maintain procedural safeguards and legal advice when documents are requested.
Certificates of analysis must disclose methodology (s 75)
Certificates of analysis must indicate the methodology used (s 75). Parties should ensure chain of custody and methodology documentation are rigorous because certificates serve as prima facie evidence under s 87 and will form the evidentiary basis for enforcement.
Regulations will carry essential technical obligations (s 12, s 100)
The Act defers detailed technical standards (form of fluoride, maintenance requirements, operator qualifications, sampling frequency and methods) to regulations (s 12, s 100). Until regulations are consulted and complied with, primary compliance obligations remain broad. Operators should proactively review any regulations made under the Act to ensure operational conformity.
Liability allocation and State exposure (s 95-96)
Officials’ protections mean civil liability may attach to the State instead of individuals (s 95). The State indemnity to suppliers (s 96) can shift exposure and claims to the State. Suppliers should have immediate notice procedures for any Act-related proceedings since they must notify the Minister when an Act proceeding is started against them (s 96(2)).
Time limits for notices and implementation (s 13)
Public potable water suppliers must give a fluoridation notice at least 30 days before adding or ceasing to add fluoride (s 13(3)). Failure to observe the notification timeline may have public transparency or administrative consequences. Document publication and notice steps to meet statutory requirements.
These are specific statutory “gotchas” embedded in the Act’s mechanics; operational governance, careful documentation, and early legal advice are the practical responses.
How to comply
This section translates the Act’s statutory duties into an operational compliance checklist for the principal actors: local governments and public potable water suppliers, with actions for departmental officials, analysers and laboratories.
For local governments (decision-makers)
Decision process
Ensure the local government’s decision to add or cease adding fluoride is made after appropriate governance steps and recorded with reasons demonstrating satisfaction the decision is in the best interests of the community (s 7(1), (3)). Since “community” may include parts of the local government area (s 7(6)), ensure the decision scope is precisely defined.
Consultation
Before making a decision, consider consulting the public potable water supplier about cost, infrastructure and cross-boundary supply impacts as permitted by s 7(5). Record the consultation and any technical advice obtained.
Notice and publication
Give the chief executive written notice that a fluoridation decision has been made and publish the notice in a publicly accessible way, for example on the local government’s website and in a newspaper serving the affected area (s 13(2)). Retain proof of publication.
Budget for compliance costs
If the local government is not the supplier, budget for and agree dispute-avoidant procedures for the supplier’s compliance costs, because statutory liability to pay such costs arises under s 9. Document scope and estimates in advance to reduce later claims.
For public potable water suppliers (implementers)
Act in accordance with the local government decision
When notified under s 7, add, continue to add, cease to add or not add fluoride as the local government requires (s 7(2)(b), (4)(b)). Ensure written confirmation of the notification is retained.
Technical compliance
Add fluoride only in the form prescribed by regulation and comply with all regulatorily prescribed requirements for addition and maintenance (s 12). Monitor regulation developments under s 100 and update operational procedures accordingly.
Notification timeline
Give a fluoridation notice to the chief executive and publish it in a publicly accessible way at least 30 days before implementing the change (s 13(3)). Maintain a calendar for regulatory deadlines and evidence of publication.
Authorise personnel and authorisations
Ensure only authorised personnel add fluoride (s 14). Maintain clear written delegations, job descriptions, training records and qualification evidence consistent with any regulatory requirements (s 100) to avoid breaches and potential 100-unit penalties.
Sample handling and analysis
Maintain chain of custody for samples taken under s 40(3)(c). Coordinate with the chief executive’s State analysts or approved laboratories for analysis (s 74). Maintain records that show samples were given to a State analyst, and retain certificates of analysis including methodology (s 75, s 87).
Document readiness for inspections
Prepare for authorised person inspections: have records required under the Act or regulation ready for inspection or production (s 54), and be aware that refusal to provide documents is an offence with a maximum 50-unit penalty (s 55). For document certification requests, comply or risk a 50-unit penalty (s 56).
Remedial notices and corrective action
If issued a remedial notice (s 59), respond promptly, implement required steps within the stated reasonable period, and retain proof of completion. Compliance with remedial notices precludes prosecution for the underlying offence unless subsequently non-compliant (s 59(7)).
Litigation preparedness and indemnity procedures
If an Act-related civil proceeding is started against the supplier, notify the Minister immediately as required by s 96(2). Establish internal procedures for engagement with the Minister or the State if the State elects to join proceedings (ss 97-98).
For authorised persons, State analysts and approved laboratories
Appointment and identity
Ensure authorisation instruments, identity cards and expiry dates are current (ss 26, 28). Authorised persons must produce identity cards before exercising powers (s 29) unless impracticable.
Warrant and entry procedure
When applying for warrants, ensure written sworn applications state grounds (s 35). For electronic warrant applications in urgent circumstances, document the urgency and follow duplicate warrant filing obligations (s 37).
Sampling and analysis chain of custody
If taking samples, give them to a properly appointed State analyst as soon as practicable (s 74). Approved laboratories must meet accreditation or approval criteria prescribed by regulation for the analyses (s 73). Certificates of analysis must indicate methodology (s 75).
For occupiers and persons on whom requirements are made
Compliance with reasonable assistance requests
Provide reasonable help when lawfully required under s 40(3)(f) and information under s 40(3)(g) unless you have a reasonable excuse. Individuals may refuse to provide information if it would tend to incriminate them (ss 41(2), 42(2)).
General compliance governance for organisations
Records and reports
Maintain records and reporting arrangements consistent with regulations under s 100. Keep copies of all notices, publications and remedial steps for evidentiary use (s 87).
Training, qualifications and operator competence
Ensure staff operating fluoridation equipment have the qualifications and documented training that regulations require (s 100(b)-(c)). Keep personnel files and competency verification records.
Legal risk management
Implement a protocol to respond to authorised person inspections, remedial notices and demands for documents. Maintain a legal review process for notices and a chain-of-command procedure for notifying the chief executive and Minister when proceedings start (s 96(2)).
Insurance and contractual arrangements
Review insurance and service contracts to account for the State indemnity regime (s 96) and the duties to pay compliance costs (s 9). Ensure contractual clarity about responsibilities where the local government and supplier are different entities.
Public communications
Ensure publication steps mandated by s 13 are executed and documented. Have templates ready for public notices and internal sign-off processes to ensure statutory deadlines are met.
Technical and regulatory monitoring
Regularly review the regulations made under s 100 for changes to methods, timing of analyses, operator qualifications and record-keeping requirements, and update operational standard operating procedures accordingly.
In all cases, keep contemporaneous records of decisions, notifications, consultations, samples, analyses and remedial actions. Those documents will be relevant for defence in enforcement actions, for cost recovery under s 9, for demonstrating compliance with remedial notices (s 59), and for evidentiary purposes under s 87.
(a) if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and
(b) the water supplier must add fluoride, or continue to add fluoride, to the water supply.
(a) if the local government is not the public potable water supplier for the potable water supply that supplies potable water to the community—the local government must give the water supplier notice of the decision; and
(b) the water supplier must not add fluoride, or must cease to add fluoride, to the water supply.
sec.8 Requirement for public potable water supplier not to impact on another local government
sec.8 Requirement for public potable water supplier not to impact on another local government
This section applies to a public potable water supplier for a public potable water supply that is required under section 7 to add fluoride, or cease to add fluoride, to the water supply that supplies potable water to a community in a local government area.
The public potable water supplier must not, when adding fluoride, or ceasing to add fluoride, to the water supply, affect another local government’s water security or water supply or the fluoridation of another local government’s water supply without the other local government’s agreement.
s 8 sub 2012 No. 39 s 82
(sec.8-ssec.1) This section applies to a public potable water supplier for a public potable water supply that is required under section 7 to add fluoride, or cease to add fluoride, to the water supply that supplies potable water to a community in a local government area.
(sec.8-ssec.2) The public potable water supplier must not, when adding fluoride, or ceasing to add fluoride, to the water supply, affect another local government’s water security or water supply or the fluoridation of another local government’s water supply without the other local government’s agreement.
sec.9 Costs
sec.9 Costs
If—
a local government makes a decision under section 7 to add fluoride, or cease to add fluoride, to the water supply that supplies potable water to the community in its local government area; and
the local government is not the public potable water supplier for the potable water supply; and
the public potable water supplier for the potable water supply incurs costs ( compliance costs ) in complying with the local government’s decision;
the local government must pay the public potable water supplier’s compliance costs.
s 9 sub 2012 No. 39 s 82
(a) a local government makes a decision under section 7 to add fluoride, or cease to add fluoride, to the water supply that supplies potable water to the community in its local government area; and
(b) the local government is not the public potable water supplier for the potable water supply; and
(c) the public potable water supplier for the potable water supply incurs costs ( compliance costs ) in complying with the local government’s decision;
Section sec.10
s 10 om 2012 No. 39 s 82
Section sec.11
s 11 om 2012 No. 39 s 82
sec.12 Requirements relating to the addition of fluoride to public potable water supply
sec.12 Requirements relating to the addition of fluoride to public potable water supply
A public potable water supplier for a public potable water supply that adds fluoride to the public potable water supply must—
add the fluoride in a form prescribed under a regulation; and
comply with the requirements prescribed under a regulation relating to the addition of fluoride to, and the maintaining of fluoride in, a public potable water supply.
For the consequences of contravening this provision, see part 5 , division 3 .
(a) add the fluoride in a form prescribed under a regulation; and
(b) comply with the requirements prescribed under a regulation relating to the addition of fluoride to, and the maintaining of fluoride in, a public potable water supply.
sec.13 Notification of intention relating to fluoridation of public potable water supply
sec.13 Notification of intention relating to fluoridation of public potable water supply
This section applies if a local government makes a decision (a fluoridation decision ) to add fluoride, or cease to add fluoride, to the public potable water supply that supplies potable water to the community, or part of its community, in its local government area.
The local government must—
give the chief executive a notice stating that the local government has made a fluoridation decision and the nature of the decision; and
publish the notice in a publicly accessible way.
publish the notice on the local government’s website
publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
The public potable water supplier for the public potable water supply must, at least 30 days before adding fluoride or ceasing to add fluoride to the water supply—
give a fluoridation notice to the chief executive; and
publish the fluoridation notice in a publicly accessible way.
publish the fluoridation notice on the local government’s website
publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
In this section—
fluoridation notice means a notice stating—
that the local government has made a fluoridation decision; and
that the public potable water supplier for the public potable water supply intends to add fluoride or cease to add fluoride to the water supply from a stated day.
s 13 sub 2012 No. 39 s 83
amd 2023 No. 9 s 41
(sec.13-ssec.1) This section applies if a local government makes a decision (a fluoridation decision ) to add fluoride, or cease to add fluoride, to the public potable water supply that supplies potable water to the community, or part of its community, in its local government area.
(sec.13-ssec.2) The local government must— give the chief executive a notice stating that the local government has made a fluoridation decision and the nature of the decision; and publish the notice in a publicly accessible way. publish the notice on the local government’s website publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
(sec.13-ssec.3) The public potable water supplier for the public potable water supply must, at least 30 days before adding fluoride or ceasing to add fluoride to the water supply— give a fluoridation notice to the chief executive; and publish the fluoridation notice in a publicly accessible way. publish the fluoridation notice on the local government’s website publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
(sec.13-ssec.4) In this section— fluoridation notice means a notice stating— that the local government has made a fluoridation decision; and that the public potable water supplier for the public potable water supply intends to add fluoride or cease to add fluoride to the water supply from a stated day.
(a) give the chief executive a notice stating that the local government has made a fluoridation decision and the nature of the decision; and
(b) publish the notice in a publicly accessible way. Examples for paragraph (b) — • publish the notice on the local government’s website • publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
• publish the notice on the local government’s website
• publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
• publish the notice on the local government’s website
• publish the notice in a newspaper circulating in the area of the State serviced by the public potable water supply
(a) give a fluoridation notice to the chief executive; and
(b) publish the fluoridation notice in a publicly accessible way. Examples for paragraph (b) — • publish the fluoridation notice on the local government’s website • publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
• publish the fluoridation notice on the local government’s website
• publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
• publish the fluoridation notice on the local government’s website
• publish the fluoridation notice in a newspaper circulating in the area of the State serviced by the public potable water supply
(a) that the local government has made a fluoridation decision; and
(b) that the public potable water supplier for the public potable water supply intends to add fluoride or cease to add fluoride to the water supply from a stated day.
sec.14 Only certain persons may add fluoride to a public potable water supply
sec.14 Only certain persons may add fluoride to a public potable water supply
A person must not add fluoride to a public potable water supply unless the person is—
a public potable water supplier for the water supply; or
an employee or agent of the water supplier acting under the water supplier’s authority; or
acting under section 60 .
Maximum penalty—100 penalty units.
s 14 amd 2012 No. 39 s 84
(a) a public potable water supplier for the water supply; or
(b) an employee or agent of the water supplier acting under the water supplier’s authority; or
(c) acting under section 60 .
Section sec.15
s 15 om 2012 No. 39 s 84A
Section sec.16
s 16 om 2012 No. 39 s 84A
Section sec.17
s 17 om 2012 No. 39 s 84A
Section sec.18
s 18 om 2012 No. 39 s 84A
Section sec.19
s 19 om 2012 No. 39 s 84A
Section sec.20
s 20 om 2012 No. 39 s 84A
Section sec.21
s 21 om 2012 No. 39 s 84A
Section sec.22
s 22 om 2012 No. 39 s 84A
Section sec.23
s 23 om 2012 No. 39 s 84A
pt.5 Monitoring and enforcement
Monitoring and enforcement
pt.5-div.1 Authorised persons
Authorised persons
sec.24 Powers generally
sec.24 Powers generally
An authorised person has the powers given under this Act.
In exercising the powers, the authorised person is subject to the directions of the chief executive.
(sec.24-ssec.1) An authorised person has the powers given under this Act.
(sec.24-ssec.2) In exercising the powers, the authorised person is subject to the directions of the chief executive.
sec.25 Functions of authorised person
sec.25 Functions of authorised person
An authorised person has the following functions—
to enforce this Act;
to monitor compliance with this Act;
to help achieve the object of this Act by providing advice and information on how the object may be achieved.
(a) to enforce this Act;
(b) to monitor compliance with this Act;
(c) to help achieve the object of this Act by providing advice and information on how the object may be achieved.
sec.26 Appointment and qua
This is an opening excerpt, not the complete document.