Public and Environmental Health Act 1987 [Act]

PUBLIC AND ENVIRONMENTAL HEALTH ACT 1987

being

Public and Environmental Health Act 1987 No. 36 of 1987

[Assented to 23 April 1987]¹

as amended by

Statutes Amendment (Water Resources) Act 1991 No. 7 of 1991 [Assented to 28 March 1991]²

Statutes Amendment (Expiation of Offences) Act 1992 No. 71 of 1992 [Assented to 19 November 1992]³

Public and Environmental Health (Review) Amendment Act 1993 No. 9 of 1993 [Assented to 25 March 1993]⁴

Public and Environmental Health (Notification of Diseases) Amendment Act 1996 No. 14 of 1996 [Assented to 24 April 1996]⁵

District Court (Administrative and Disciplinary Division) Amendment Act 2000 No. 4 of 2000 [Assented to 20 April 2000]⁶

South Australian Health Commission (Administrative Arrangements) Amendment Act 2000 No. 34 of 2000 [Assented to 6 July 2000]⁷

¹Came into operation (except ss. 7, 13-29, 39, 44, cl. 2(b), (c) and (f) of Sched. 3, the repeal of the Noxious Trades Act 1943, and the repeal of certain sections of the Health Act 1935) 7 December 1989: Gaz. 7 December 1989, p. 1700; remainder of Act (except the repeal of certain other sections of the Health Act 1935) came into operation 1 July 1991: Gaz. 6 June 1991, p. 1774; repeal of Pt. 9AA of the Health Act 1935 came into operation 10 March 1995: Gaz. 8 December 1994, p. 1943; repeal of remainder of Health Act came into operation 15 May 1995: Gaz. 11 May 1995, p. 2135.

²Came into operation 15 July 1991: Gaz. 11 July 1991, p. 244.

³Came into operation 1 March 1993: Gaz. 18 February 1993, p. 600.

⁴Came into operation 1 July 1993: Gaz. 1 July 1993, p. 196.

⁵Came into operation 1 August 1996: Gaz. 1 August 1996, p. 223.

⁶Schedule 1 (cl. 34) came into operation 1 June 2000: Gaz. 18 May 2000, p. 2554.

⁷Schedule 1 (cl. 13) came into operation 6 July 2000: Gaz. 6 July 2000, p. 5.

NOTE:

×Asterisks indicate repeal or deletion of text.

×Entries appearing in bold type indicate the amendments incorporated since the last reprint.

×For the legislative history of the Act see Appendix 1.

SUMMARY OF PROVISIONS

PART 1

PRELIMINARY

1.Short title

2.Commencement

3.Interpretation

4.Act to bind the Crown

PART 2

ADMINISTRATION

DIVISION 1—GENERAL

6.Delegation

7.Authorised officers

DIVISION 2—THE PUBLIC AND ENVIRONMENTAL HEALTH COUNCIL

8.The Public and Environmental Health Council

9.Term of office of members

10.Conduct of business

11.Validity of acts of Council and immunity of members

12.Functions of the Council

DIVISION 3—ENFORCEMENT OF PROPER STANDARDS

12A.Powers and duties of relevant authorities

PART 3

PROTECTION OF PUBLIC HEALTH

DIVISION 2—PROVISIONS RELATING TO SANITATION, DRAINAGE, ETC.

15.Prevention of insanitary conditions on premises

16.Offence in relation to insanitary conditions on premises

17.Control of offensive activities

18.Discharge of wastes in a public place

19.Private thoroughfare

20.Provision of adequate sanitation

DIVISION 3—PROTECTION OF WATER SUPPLIES

21.Pollution of water

22.Sources of water supply may be closed

DIVISION 4—ACTION ON DEFAULT, RECOVERY OF COSTS, ETC.

23.Action on default

24.Recovery of costs by one person from another

DIVISION 5—APPEALS

25.Grounds for, and manner of, appeal

26.Constitution of special committee

27.Proceedings of review committee

28.Determination of an appeal

29.Further appeal

PART 4

NOTIFIABLE DISEASES AND THE PREVENTION OF INFECTION

DIVISION 1—NOTIFICATION OF DISEASES

30.Notification

DIVISION 2—EXAMINATION AND TREATMENT OF DISEASES

31.Power of Commission to require a person to undergo an examination

32.Power of Commission, in the interests of public health, to detain persons suffering from diseases

33.Power of Commission to give directions to persons suffering from diseases

34.Right of appeal against a decision of a magistrate

DIVISION 3—CONTROL AND PREVENTION OF INFECTION

35.Reporting to local councils

36.Action to prevent the spread of infection

37.Person infected with disease must prevent transmission to others

PART 5

MISCELLANEOUS

38.Inspections, etc.

39.Councils may appoint officers of health

40.Immunity from liability

41.Power to require information

42.Confidentiality

42A.Provision of certain information

43.Manner of giving notice

43A.Person infested with vermin must prevent transmission to others

44.Reporting

45.Offences

46.Offences by bodies corporate

47.Regulations

SCHEDULE 1

Notifiable Diseases

SCHEDULE 2

Controlled Notifiable Diseases

SCHEDULE 3

Repeal of Certain Acts and Transitional Provisions

APPENDIX 1

LEGISLATIVE HISTORY

APPENDIX 2

DIVISIONAL PENALTIES AND EXPIATION FEES

The Parliament of South Australia enacts as follows:

PART 1

PRELIMINARY

Short title

1. This Act may be cited as the Public and Environmental Health Act 1987.

Commencement

2. (1) This Act will come into operation on a day to be fixed by proclamation.

(2) The Governor may, in a proclamation fixing a day for this Act to come into operation, suspend the operation of specified provisions of this Act until a subsequent day fixed in the proclamation, or a day to be fixed by subsequent proclamation.

Interpretation

3. (1) In this Act, unless the contrary intention appears—

"the authority" means—

(a)in relation to a local government area—the local council for that area; and

(b)in relation to a part of the State that is not within a local government area—the Minister,

(but where powers are withdrawn from a local council and vested in the Minister or the Minister is, by agreement with a local council, discharging duties of the council, a reference to the authority in relation to those powers or duties is a reference to the Minister rather than that council);

"authorised officer" means a person—

(a)holding an appointment as an authorised officer under Part 2; or

(b)authorised by the Minister to exercise the powers of an authorised officer under this Act;

"building" includes a structure;

"child" means a person under the age of 16 years;

"the Commission" means the South Australian Health Commission;

"controlled notifiable disease" means—

(a)a notifiable disease included in schedule 2; or

(b)a notifiable disease prescribed by regulation to be a controlled notifiable disease;

"controlling authority" means a controlling authority constituted under the Local Government Act 1934;

"the Council" means the Public and Environmental Health Council constituted under Part 2;

"the Department" means the department of the Minister to whom the administration of this Act is committed;

"director" of a body corporate includes any member of the governing body of the body corporate;

"local council" means a council constituted under the Local Government Act 1934;

"medical practitioner" means a legally qualified medical practitioner;

"notifiable disease" means—

(a)a communicable disease included in schedule 1; or

(b)a communicable disease prescribed by regulation to be a notifiable disease;

"occupier", in relation to premises, means a person who has, or is entitled to, possession or control of the premises and includes a person who is in charge of the premises;

"owner", in relation to premises, includes an occupier of the premises;

"place of public assembly" includes a building (in public or private ownership) at which more than 20 persons gather on a regular or irregular basis;

"pollution", in relation to water, connotes a degree of impurity that renders the water unfit for human consumption;

"premises" means—

(a)any land, building or place (including a public place, or a movable building or structure); or

(b)a part of premises;

"public place" includes a place to which the public ordinarily has access;

"refuse" includes rubbish and other forms of waste material;

"vehicle" includes an aircraft or vessel;

"vermin" includes lice, fleas and mites;

"waste control system" means any system that provides for the collection, treatment or disposal of human, commercial or industrial waste through—

(a)a drainage or sewerage system; or

(b)a system of pipes, pumps, appliances, plant or storage or treatment facilities that deals with the waste in solid or liquid form, or in a combination of both; or

(c)a system that incorporates the use of biological, chemical or artificial means, or any combination of such means, to collect, treat or dispose of the waste, or any residues,

and includes any fixture, fitting, appliance, plant or process associated with any such system but does not include any system of a class excluded by regulation from the ambit of this definition;

"water supply" includes any natural or artificial accumulation or source of water.

(2) Premises are in an insanitary condition if—

(a)the condition of the premises gives rise to a risk to health; or

(b)the premises are so filthy or neglected that there is a risk of infestation by rodents or other pests; or

(c)the condition of the premises is such as to cause justified offence to the owner of any land in the vicinity; or

(d)offensive material or odours are emitted from the premises; or

(e)the premises are for some other reason justifiably declared by the authority to be in an insanitary condition.

Note: For definition of divisional penalties (and divisional expiation fees) see Appendix 2.

Act to bind the Crown

4. This Act binds the Crown.

PART 2

ADMINISTRATION

DIVISION 1—GENERAL

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Delegation

6. (a1) The Minister may, by instrument in writing, delegate any of the Minister's powers or functions under this Act.

(1) The Commission or a local council may, by instrument in writing, delegate any of its powers or functions under this Act.

(1a) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated.

(2) A delegation under this section—

(a)may be absolute or conditional; and

(b)does not derogate from the powers of the delegator to act in a matter; and

(c)is revocable at will.

(3) No delegation may be made to a local council under this section without the concurrence of the local council.

(4) The Minister or the Commission must not revoke a delegation made to a local council under this section without first consulting with the local council.

Authorised officers

7. (1) Authorised officers may be appointed by the Minister or a local council.

(2) Subject to subsection (3), a person is not eligible for appointment as an authorised officer unless the person—

(a)holds qualifications approved by the Minister; or

(b)held, immediately before the commencement of this Act, an appointment as an officer or health surveyor under the Health Act 1935.

(3) Where, in the opinion of the Minister, a local council cannot reasonably be expected to appoint a qualified person as an authorised officer, the local council may, with the consent of the Minister, appoint a person as an authorised officer even though he or she does not comply with subsection (2).

(4) The Minister must not appoint an officer or employee of a local council as an authorised officer unless the local council consents to the appointment.

(5) Every authorised officer must be furnished with a certificate of authority and the certificate must be produced by the authorised officer on demand.

DIVISION 2—THE PUBLIC AND ENVIRONMENTAL HEALTH COUNCIL

The Public and Environmental Health Council

8. (1) The Public and Environmental Health Council is established.

(2) The Council will consist of six members appointed by the Governor, of whom—

(a)one (the presiding member) will be a member of the staff of the Department; and

(b)two will be persons selected by the Minister from a panel of five nominated by the Executive Council of the Local Government Association of South Australia; and

(c)two will be persons nominated by the Minister, being persons who are qualified in, and have extensive experience in, public and environmental health; and

(d)one will be an officer or employee of a local council, selected by the Minister from a panel of three nominated by the Australian Institute of Health Surveyors (South Australian Division).

(3) Where the Minister, by notice in writing, requests a body to make nominations for the purposes of this section, and the body fails to make the nominations within the time allowed in the notice, a person may be appointed to the Council on the Minister's nomination and that member will be taken to have been appointed on the nomination of the body in default.

(4) The Governor may appoint a suitable person to be the deputy of a member of the Council, and the deputy may, in the absence of that member, act as a member of the Council.

(5) The provisions of this section relating to the qualification and nomination of a member extend to a deputy to that member.

Term of office of members

9. (1) Subject to this section, a member of the Council will be appointed for a term of three years.

* * * * * * * * * *

(3) A member of the Council is, on the expiration of a term of office, eligible for reappointment.

(4) The Governor may remove a member of the Council from office if the member—

(a)becomes mentally or physically incapable of carrying out official duties satisfactorily; or

(b)is guilty of neglect of duty or dishonourable conduct.

(5) The office of a member of the Council becomes vacant if the member—

(a)dies; or

(b)completes a term of office and is not reappointed; or

(c)resigns by written notice addressed to the Minister; or

(d)is removed from office by the Governor pursuant to subsection (4).

(6) On the office of a member of the Council becoming vacant, a person must be appointed to that office in accordance with this Act (but a person who is to fill a casual vacancy in the office of a member will only be appointed for the balance of the term of the person's predecessor).

Conduct of business

10. (1) The presiding member will, if present at a meeting of the Council, preside at that meeting and, in the absence of that member, his or her deputy will preside.

(2) If a person is not available to preside at a meeting of the Council in accordance with subsection (1), the members present may elect one of their number to preside at the meeting.

(3) Four members constitute a quorum of the Council.

(4) A decision carried by a majority of the votes cast by the members present at a meeting of the Council is a decision of the Council.

(5) Each member present at a meeting of the Council is entitled to one vote on a question arising for decision at the meeting and, in the event of an equality of votes, the person presiding is entitled to a second, or casting, vote.

(6) Subject to this Act, the business of the Council may be conducted in such manner as it determines.

Validity of acts of Council and immunity of members

11. (1) An act or proceeding of the Council is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

(2) No liability attaches to a member of the Council for an act or omission by that member or the Council in good faith in the exercise, performance or discharge, or purported exercise, performance or discharge, of the member's or the Council's powers, functions or duties under this Act.

(3) A liability that would, but for subsection (2), lie against a member of the Council lies against the Crown.

Functions of the Council

12. (1) The functions of the Council are—

(a)to report (on its own initiative or at the request of the Commission or the Minister) to the Commission or the Minister on any matter relating to public or environmental health;

(b)to initiate, carry out or oversee programmes and activities designed to improve or promote public and environmental health;

(c)to promote or, with the approval of the Minister, conduct inquiries into any aspect of public and environmental health;

(d)to keep the operation, administration and enforcement of this Act under review and to recommend to the Minister any legislative or administrative change that appears necessary or appropriate;

(e)to consider and report to the Minister on regulations proposed to be made under this Act;

(f)to carry out any other function or duty assigned to the Council by the Minister or by or under this Act.

(2) The Council may establish such committees and sub‑committees as it thinks fit (which may, but need not consist of, or include, members of the Council) to advise it on any aspect of its functions under this Act.

(3) The Council may, by instrument in writing, delegate any of its powers or functions under this Act.

(4) A delegation under subsection (3)—

(a)may be absolute or conditional; and

(b)does not derogate from the powers of the Council itself; and

(c)is revocable at will.

DIVISION 3—ENFORCEMENT OF PROPER STANDARDS

Powers and duties of relevant authorities

12A. (1) It is the duty of the Minister—

(a)to promote proper standards of public and environmental health in the State generally; and

(b)without derogating from the powers of a local council under this Act (but subject to this section), to take adequate measures to ensure that the provisions of this Act are observed within the State.

(2) Subject to this section, it is the duty of a local council—

(a)to promote proper standards of public and environmental health in its area; and

(b)to take adequate measures to ensure that the provisions of Part 3 are observed in its area; and

(c)to take reasonable steps—

(i)to prevent the occurrence and spread of notifiable diseases within its area; and

(ii)to prevent any infestation or spread of vermin, rodents or other pests within its area.

(3) If, in the opinion of the Council, a local council has failed to discharge its duty under this section, the Council must consult with the local council in relation to the matter.

(4) If, after taking action to comply with subsection (3), the Council considers that the matter remains unresolved, the Council may take such action as appears appropriate.

(5) Without limiting the generality of subsection (4), the Council may, by notice in the Gazette, withdraw powers from a local council and transfer them to the Minister.

(6) Before taking action under subsection (5)—

(a)the Council must, by notice in writing—

(i)inform the local council of its proposed course of action (setting out the grounds on which that action is proposed); and

(ii)invite the local council to make written submissions in relation to the matter; and

(b)if the local council so requests in written submissions to the Council—the Council must discuss the matter with a delegation representing the local council.

(7) The Council must, as soon as is reasonably practicable after publishing a notice under subsection (5), furnish the local council with written reasons for its decision.

(8) The Minister may recover as a debt costs and expenses reasonably incurred in exercising powers transferred under subsection (5) from the local council from which the powers are withdrawn.

(9) The Council may, by subsequent notice in the Gazette, revoke a notice under subsection (5).

(10) The Minister may agree to discharge on behalf of a local council any part of its duty under subsection (2).

(11) An agreement under subsection (10) may be made subject to conditions and limitations.

(12) Where the Minister enters into an agreement under subsection (10), the Minister is, to the extent contemplated by the agreement, vested with the powers of the local council in respect of which the agreement is made.

(13) A breach of duty under this section does not give rise to any civil liability.

PART 3

PROTECTION OF PUBLIC HEALTH

* * * * * * * * * *

DIVISION 2—PROVISIONS RELATING TO SANITATION, DRAINAGE, ETC.

Prevention of insanitary conditions on premises

15. (1) If premises are in an insanitary condition, the authority may, by notice in writing, require an owner of the premises or any other person who is apparently responsible for causing the insanitary condition or allowing the insanitary condition to occur—

(a)to take specified action to improve the condition of the premises; or

(b)to desist from a specified activity to which the condition of the premises is apparently attributable.

(2) If residential premises are, by reason of their insanitary condition, unfit for human habitation, the authority may include in a notice under subsection (1), a direction that, after a date specified in the notice, the premises must not be occupied until—

(a)specified action to render the premises fit for human habitation has been taken; and

(b)the authority is satisfied that the premises are fit for human habitation.

(3) A person to whom a notice under subsection (1) is addressed shall not, without reasonable excuse, fail to comply with the notice.

Penalty: Division 5 fine.

Expiation fee: Division 6 fee.

(4) Where a notice under subsection (1) includes a direction under subsection (2), the authority must have a copy of the notice affixed to a conspicuous part of the premises to which it relates.

(5) A person shall not, knowing that a direction exists under subsection (2), occupy premises in contravention of that direction.

Penalty: Division 6 fine.

Expiation fee: Division 7 fee.

(6) The authority may, by further notice in writing, vary or revoke a notice given under this section.

Offence in relation to insanitary conditions on premises

16. (1) If premises are in an insanitary condition, any person who is responsible for causing the condition or allowing the condition to occur is guilty of an offence.

Penalty: Division 5 fine.

Expiation fee: Division 6 fee.

(2) It is a defence to a charge for an offence against subsection (1) to prove that there is a reasonable excuse for the condition of the premises.

Control of offensive activities

17. (1) If an activity—

(a)gives rise to a risk to health; or

(b)results in the emission of offensive material or odours,

the authority may, by notice in writing to the person responsible for the activity, require that person to desist from the activity or to observe requirements stipulated in the notice in relation to the carrying on of the activity.

(2) A person who, without reasonable excuse, fails to comply with a notice under subsection (1) is guilty of an offence.

Penalty: Division 5 fine.

Expiation fee: Division 6 fee.

Discharge of wastes in a public place

18. (1) A person who discharges waste into a public place is guilty of an offence.

Penalty: Division 3 fine.

(2) A person who, without lawful permission, discharges waste into premises of which he or she is not an owner is guilty of an offence.

Penalty: Division 3 fine.

(3) The authority may, by notice in writing, require the owner to take specified action (immediately or within a period specified in the notice)—

(a)to prevent the discharge or potential discharge of waste from those premises into a public place or other premises; or

(b)to remove waste discharged by the owner into a public place or other premises.

(4) A person to whom a notice under subsection (3) is addressed shall not, without reasonable excuse, fail to comply with the notice.

Penalty: Division 3 fine.

Expiation fee: Division 6 fee.

(5) The authority may, by further notice in writing, vary or revoke a notice given under this section.

Private thoroughfare

19. (1) The owner of a private thoroughfare shall keep the thoroughfare clean and free of refuse.

Penalty: Division 6 fine.

Expiation fee: Division 7 fee.

(2) Where the owner of a private thoroughfare fails to comply with subsection (1), the authority may, by notice in writing, require the owner to take specified action to remedy the default within such time as the authority allows in the notice.

(3) A person to whom a notice under subsection (2) is addressed shall not, without reasonable excuse, fail to comply with the notice.

Penalty: Division 6 fine.

Expiation fee: Division 7 fee.

(4) The authority may, by further notice in writing, vary or revoke a notice given under this section.

(5) In this section—

"private thoroughfare" means a private street, road, lane, footway, alley, court or thoroughfare that the public is allowed to use.

Provision of adequate sanitation

20. (1) Where the authority is of the opinion that premises have inadequate facilities for sanitation or personal hygiene, the authority may, by notice in writing, require an owner of the premises to take such action as the authority thinks necessary, and specifies in the notice, to provide adequate facilities within such time, and in such manner, as is specified in the notice.

(2) A person to whom a notice under subsection (1) is addressed shall not, without reasonable excuse, fail to comply with the notice.

Penalty: Division 6 fine.

Expiation fee: Division 7 fee.

(3) The authority may, by further notice in writing, vary or revoke a notice given under this section.

(4) The owner of a building that is used as a place of public assembly shall keep the building clean and properly ventilated.

Penalty: Division 6 fine.

Expiation fee: Division 7 fee.

DIVISION 3—PROTECTION OF WATER SUPPLIES

Pollution of water