Thursday, 24 February 2022
Bills
Public Health and Wellbeing Amendment Bill 2022
Public Health and Wellbeing Amendment Bill 2022
Introduction and first reading
The DEPUTY PRESIDENT (17:17): I have a further message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Public Health and Wellbeing Act 2008 and the Livestock Disease Control Act 1994 and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms SYMES: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (17:17): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Public Health and Wellbeing Amendment Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill amends the Public Health and Wellbeing Act 2008 (the Act) to:
• provide statutory immunity for certain officers;
• promote equality by repealing references to HIV and Hepatitis C which cause stigma and discrimination;
• expand the Chief Health Officer’s powers to make examination and testing orders under section 113;
• expanded testing data collection and further analysis powers; and
• provide for other miscellaneous matters.
Human rights issues
The Bill engages a range of human rights under the Charter, discussed below. However, to the extent that the Bill limits any Charter rights, such limits are reasonable and justifiable in accordance with section 7(2) of the Charter.
The Bill also promotes the right to equality by removing all direct references to HIV and Hepatitis C from the Act, which has the effect of removing stigma.
Certain officers are immune from liability when exercising powers under the Act
The Bill inserts new section 227AA into the Act, which establishes that the Chief Health Officer, a delegate of the Chief Health Officer, an authorised officer and a detention review officer are not subject to personal liability for their acts, decisions and omissions conducted in good faith under the Act. In circumstances that give rise to a civil claim, liability is transferred to the State.
Right to a fair hearing (s 24)
Section 24(1) of the Charter provides that a person who is party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The term ‘civil proceeding’ in section 24(1) has been interpreted as encompassing proceedings that are determinative of private rights and interests in a broad sense, including some administrative proceedings.
The fair hearing right is relevant to new section 227AA as the right has been held to encompass a right of access to the courts to have one’s civil claims submitted to a judge for determination. Ordinarily, statutory immunity would operate to abolish a cause of action, abrogating the right. However, the new section 227AA(2) provides that where actions or omissions of the relevant Officer give rise to a civil claim, liability is transferred to the Crown. Accordingly, the exclusion from personal liability under the provision will not interfere with the right to a fair hearing, because parties seeking redress are instead able to bring a claim against the State. The provision also serves a necessary purpose by ensuring that officers are able to exercise their duties effectively without the threat of significant personal repercussions and overall interference that responding to court claims has. Additionally, the officers will still remain personally liable for any conduct not performed in good faith. Accordingly, this provision does not limit the right to a fair hearing under the Charter.
Chief Health Officer’s powers to make examination and testing orders to test if a person is likely to transmit an infectious disease
Section 113 of the Act allows the Chief Health Officer to make an examination and testing order, in relation to a person who has or may have an infectious disease and who is, as a result, a serious risk to public health, if the making of the order is necessary to ascertain whether the person has the infectious disease. The Bill substitutes new section 113(1)(d) into the Act which expands the purposes for making such an examination and testing order to include testing to determine if a person is likely to transmit an infectious disease (rather than merely whether they have an infectious disease). This is relevant to the rights to privacy, to not be subjected to medical treatment without consent and equality.
Right to privacy (s 13)
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
The expansion of the scope of the s 113 powers are relevant to a person’s right to bodily privacy, as the powers require a person to undergo one or more specified examination or test and permits a police officer to use reasonable force to detain a person to take them to a place for the examination and testing order to be carried out. It also permits a magistrate to issue a warrant for the person’s arrest. The provision also involves the compelled gathering of health information. The prohibition on arbitrariness requires that any interference with privacy must be reasonable and proportionate to the law’s legitimate purpose. Expanding the purpose for making these orders is necessary to conform with advancements in laboratory methods and treatments of infectious diseases, to ensure these mechanisms are fit for the important purpose of management and control of infectious diseases. In order to determine if a person is a serious risk to public health, in addition to knowing whether the person has the infectious disease, it is sometimes also necessary to know whether they are able to transmit the disease. For example, a person living with an infectious disease may be unable to transmit it to other persons if they have an undetectable viral load. A range of tests can be undertaken to ascertain transmissibility and the type of tests required will vary depending on the condition and course of an individual’s infection. Ascertaining if someone has an infectious disease only (without regard to their capacity to transmit) is no longer sufficient to make an assessment whether that person constitutes a risk to public health.
Making the Chief Health Officer aware of any potential risk of transmission serves a public health purpose. It enhances the Chief Health Officer’s ability to manage people known to have the disease, which increases the Chief Health Officer’s capacity to effectively respond to the risk. Further, granting the Chief Health Officer the power to ascertain likelihood of transmission enhances the ability to manage people already known to have an infectious disease in a less restrictive way, in line with best practice guidance. By better understanding transmissibility risks, the Chief Health Officer can tailor the use of public health orders according to the relevant information, and in some cases orders may not be required at all. In this way, providing these powers to the Chief Health Officer may safeguard individuals’ rights, as the use of public health orders will be guided and informed by a more accurate risk profile.
Finally, I note that the expanded section 113 powers remain subject to the safeguards in sections 111 and 112, which require, in giving effect to examination and testing orders under the Act, that the least restrictive measures should be used on the rights of any person.
In my view the amendment is therefore compatible with the right to privacy.
Right not to be subjected to medical treatment without consent (s 10)
Section 10(1)(c) of the Charter protects a person’s right not to be subjected to medical treatment unless the person has given their full and free informed consent. In this context ‘medical treatment’ includes examinations and testing.
The right not to be subjected to unwanted medical treatment is not, however, an absolute right in international human rights law. It is accepted that it may be legitimate to require a person to undergo medical treatment in exceptional circumstances, including where it is necessary for the prevention and control of infectious diseases.
New subsection 113(1)(d) engages the right not to be subjected to medical treatment without full, free and informed consent because it expands the purposes for which the Chief Health Officer may make an order to require a person to undergo an examination and/or testing. However, for the reasons advanced above, any limits are justified to achieve the overarching purpose of infectious disease management and control, by being better able to ascertain the actual risk a person, with an infectious disease, poses of transmitting that disease, and thus better able to take less restrictive measures in minimising that risk required by the Act. Accordingly, in my view the amendment is compatible with this right.
The right to equality (s 8)
Section 8(3) provides that every person is equal before the law and is entitled to equal protection of the law without discrimination.
The expansion of the purposes for which s 113 can be exercised is relevant to the right to equality, in that the powers are exercised in relation to a person who has an infectious disease or has been exposed to an infectious disease, and therefore directly discriminates against people on the basis of a protected attribute (disability). However, I note that the Equal Opportunity Act 2010 provides that it is lawful for discrimination to occur on the basis of disability or physical features where it is reasonably necessary to protect health and safety of any person or the public generally. Accordingly, for the public health reasons advanced above relating to management and control of infectious diseases, I consider that any limits on the right to equality caused by the expansion of this power would be reasonably justified.
Repeal of references to HIV and Hepatitis C
The right to equality (s 8)
The Bill promotes the right to recognition and equality before law by the repeal of references to HIV and Hepatitis C in the Act. The repeal of these references removes structural stigma for people living with the respective viruses, which unnecessarily singled out such persons and contributed to their discrimination. Repealing the relevant sections has the effect of HIV being more appropriately treated like any other blood-borne virus or medical condition. Further, it ensures a principles-based approach is adopted to achieve legislation that is agnostic of disease.
Information gathering on testing data
The right to privacy (s 13)
The Bill amends section 128(1)(c) of the Act to include a requirement that the Secretary be notified of data collected by a pathology service if the test relates to a notifiable condition.
The amendment provides access to all data that includes, but is not limited to, both negative and positive results. It expands the powers of notification as they currently stand under the Act, where the Secretary is only notified if a person has, or may have, a notifiable condition. The amendment of the section is relevant to the right to privacy as the Secretary has greater access to data relating to notifiable health conditions, which may include personal and health information. However, in my opinion the expansion of this power is reasonable and proportionate. In order to determine the risk to public health, in addition to knowing whether the person has a notifiable condition, it is sometimes necessary to know related information such as negative test results. All testing data is important in informing the public health interventions and managing outbreak response. Further, having all testing data is important in outbreak management and response, as it improves that ability of policy makers and public health practitioners to develop, monitor and evaluate prevention and control activities. Accordingly, in my view the amendment is compatible with the right to privacy.
Jaclyn Symes MLC
Attorney-General
Minister for Emergency Services
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms SYMES: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Public Health and Wellbeing Act 2008 is a comprehensive framework designed to protect the health and wellbeing of Victorians across businesses and our community.
I am proud to bring this Bill to the House today, which:
• responds to cross portfolio commitments relating to prescribed accommodation
• enables expanded testing data collection to improve infectious disease management and expands how we undertake further analysis to precisely identify infectious diseases
• expands the circumstances in which the Chief Health Officer may make an examination and testing order to better understand the risks to public health
• removes references to HIV and Hepatitis C to remove stigma
• provides statutory immunity to the Chief Health Officer and certain other officers acting in good faith.
The Bill also makes consequential amendments to the Livestock Disease Control Act 1994 and some minor administrative changes.
Prescribed Accommodation—Labour hire accommodation
This Bill progresses one element of the Government’s broader reform package to improve the regulation of the labour hire industry.
In 2016, the Forsyth Inquiry into the Labour Hire Industry and Insecure Work found that the public health regulatory framework did not capture substandard accommodation associated with labour hire arrangements, such as overcrowded conditions and insufficient amenities. In some instances, labour hire workers are being housed in substandard accommodation through arrangements designed to avoid the regulatory framework. The Inquiry recommended that we strengthen the definition of prescribed accommodation to address this problem.
The Bill extends the definition of prescribed accommodation to broaden the circumstances in which accommodation can be prescribed. The definition will include accommodation provided to a worker under, or in connection with, a labour hire arrangement, whether or not that worker pays for the accommodation. This will enable labour hire accommodation to be prescribed in regulations as a class of accommodation and require the accommodation proprietor to register the accommodation and meet public health standards.
Regulation will improve living conditions to protect the health and wellbeing of vulnerable labour hire workers who support critical Victorian agricultural industries, such as fruit picking and harvesting. It will also serve to reduce exploitation and align Victoria’s labour hire licensing and public health regulatory frameworks.
This Bill also strengthens the definition of proprietor, as it relates to labour hire accommodation, responding to various arrangements where the responsibility for providing and managing the accommodation may be unclear. Strengthening this definition will attribute responsibility and accountability, and support councils and the Labour Hire Licensing Authority to monitor and enforce compliance.
To give full operational effect to our objective to regulate labour hire accommodation, the Public Health and Wellbeing (Prescribed Accommodation) Regulations 2020 will also be amended to prescribe and clearly capture labour hire accommodation arrangements. We will consult with key stakeholders to amend these regulations to ensure they are fit-for-purpose.
To give sufficient time for the industry to prepare, it is intended that these changes commence in February 2023. The reforms will complement our significant investment to support the Victorian agricultural industry to meet workforce challenges.
Reducing burden—Creating a lower-risk prescribed accommodation framework
In 2018, the Small Business Regulation Review (Visitor Economy) Action Statement identified reforms to reduce the regulatory burden for small business visitor accommodation. This included enabling one-off registration for bed and breakfasts, guest houses and farm stays, which may be captured under the prescribed accommodation regulatory framework. These small businesses present low public health risks due to their nature and market forces. However, they face disproportionate regulatory burden.
As a necessary first step, the Bill creates a definition and category of registration for lower risk prescribed accommodation, which requires an ongoing registration, rather than a periodic registration. An ongoing or a once-off registration will reduce regulatory burden such as paying annual fees and completing paperwork. The new definition is based on prescribing lower-risk accommodation in regulations. Failure to register a lower-risk prescribed accommodation will be an offence commensurate with existing provisions.
To give effect to the Action Statement, there is a need to prescribe and define lower-risk prescribed accommodation in regulations. To guide this process, we will consult with key stakeholders after several cross-portfolio reviews are completed and consider criteria and other factors.
Control and management of infectious diseases—expanded testing data collection
During the pandemic, all Victorians have come to recognise and appreciate the importance of testing data collection and the vital role that pathology and laboratory services, epidemiologists, researchers and others play in the public health response.
Under the Act, mandatory notification of notifiable conditions and micro-organisms is the foundation for how we manage and control an array of infectious diseases and medical conditions. The Public Health and Wellbeing Regulations 2019 currently prescribes 79 notifiable conditions and 10 notifiable micro-organisms. It sets out the testing details and results needed, urgency and the way notification is to occur. Additionally, the Governor in Council can also declare an infectious disease to be a notifiable condition and specify details required.
Currently, the trigger for a pathology service to notify a notifiable condition is a suspected or positive result. However, at the moment we are not being fully informed by the available testing data. Negative test results and aggregate results provide valuable information about infectious disease. As such, we are only obtaining half the story.
We all clearly understand the need and rationale for testing data collection. Unequivocally, expanded testing data collection supports surveillance, identifying emerging trends and informs prevention and control measures. For example, aggregate data about influenza enables us to monitor trends, deliver responses to rising cases, improve how we assess the timing and peak of flu season and improve our preparedness activities.
The Bill expands the notification requirement for pathology services to enable the collection of all testing data that relates to notifiable conditions, not only suspected or positive cases of notifiable conditions. Regulations need to be made to give effect to expanded testing data collection; the regulations will specify the conditions, details and timing. We will consult with stakeholders to balance the impacts of the regulations and are cognisant of current demand on pathology services as a result of the COVID-19 pandemic. Consultation will allow for the determination of what information is required to boost our ability to analyse infectious diseases and develop, monitor and evaluate public health measures. Ultimately, this will help reduce the detrimental health, social and economic impacts of infectious diseases in Victoria.
Control and management of infectious diseases—Further analysis
Fundamental to our public health response is the need to refer samples or isolates of infectious diseases and microorganisms to other laboratory services for further analysis. This is needed to support case classification (whether an infection is chronic or acute), case characterisation (whether the infection is type or strain) or case clearance (whether it is no longer infectious). This information optimises our ability to provide appropriate, targeted and rapid responses to illness and outbreaks.
Pathology and laboratory services often forward samples and isolates to other reference laboratories, which are suitably equipped to perform further and more complex testing. However, this practice occurs voluntarily, either routinely or at the request of the Department. The voluntary nature is due to limitations in the current regulation-making powers and there is a need to safeguard this crucial practice.
Therefore, the Bill strengthens the regulation-making powers in relation to the forwarding of samples or isolates and further analysis for the purposes of the Act. It will provide greater flexibility to make regulations covering a broader range of tests and analysis as well as the laboratories and pathology services that can perform these functions. The Bill helps safeguard our practice to obtain the most up-to-date and robust evidence to inform the public health response. Again, we are very aware of current demand on pathology services and will duly consult to inform implementation.
Additionally, the Bill will enable the Chief Health Officer to request in writing a person transfer a sample or isolate to a specified laboratory for further analysis or conduct further analysis of a sample or isolate. The request can be made if the Chief Health Officer considers these further investigations are necessary to investigate whether there is a risk to public health, or for the management or control of a risk to public health. This new power will support investigations into exotic disease agents and other environmental samples where public health risks may exist.
To complement this power, the Bill amends the Livestock Disease Control Act 1994 to ensure the legislative frameworks operate harmoniously.
Control and management of infectious diseases—Examination and testing powers
The Act currently provides for the Chief Health Officer to make an examination and testing order, in relation to a person who has or may have an infectious disease and who may pose a serious risk to public health. As such, the making of an order is necessary to ascertain whether a person has an infectious disease, which informs the action needed to protect public health.
With the advances in treatment, many infectious diseases have a reduced risk or no risk of transmission. To keep in step with these advances, the Bill expands the circumstances in which the Chief Health Officer can make an examination and testing order to include likelihood of transmission. It will also enable the making of an order necessary to ascertain the likelihood of a person transmitting an infectious disease if the person is known to already have that infectious disease. Determining the likelihood of transmission will inform a more targeted and potentially less restrictive response for the individual involved.
Removal of HIV and Hep C
References to HIV and Hepatitis C in the Act unnecessarily stigmatise and highlight these conditions when there is avenue to prescribe specific diseases in regulations. We are heartened to announce that the Bill removes references to HIV and Hepatitis C in the Act, which is another important step to reduce structural stigma and discrimination experienced by people living with these conditions.
We expect that those living with these conditions and key stakeholders will welcome these changes. In particular, it will help us achieve Victoria’s strategies to ensure that Victorians are free from HIV- and hepatitis-C-related stigma and discrimination.
The amendments will not alter the operation of the Act as all diseases to which the provisions apply will be prescribed in regulations.
Statutory immunity
All other Australian jurisdictions include protection from personal liability for their Chief Health Officer and other officers who perform functions in good faith under their respective public health legislation. Our intent is to bring Victoria in line with other jurisdictions to protect officers acting in good faith so they are not distracted or dissuaded from performing critical public health functions.
Litigation against individual officers acting in good faith can impede them from performing critical public health functions needed to protect our community. Additionally, the threat of being personally named in litigation remains, and this impacts relevant officers acting in good faith to pursue functions without fear of reprisal.
The Bill creates a statutory immunity for the Chief Health Officer and delegates, Detention Review Officers and certain authorised officers.
Statutory immunity means individuals performing these roles will not be personally liable for actions or omissions undertaken in good faith, when they exercise powers or discharge functions. Any liability is instead transferred to the State. Additionally, statutory immunity is contingent on acting in good faith. It will not apply to criminal liability.
Administrative amendments
The Bill also makes some minor amendments to update terminology and remove redundancies.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:18): I move, on behalf of my colleague Ms Crozier:
That debate on this matter be adjourned for one week.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (17:18): On 8 February 2022 the Public Health and Wellbeing Amendment Bill 2022 was introduced into the Legislative Assembly. Following the second reading of the bill on 9 February an anomaly was identified in the bill with the term ‘detention review officer’ used instead of the correct term ‘detention appeals officer’, and the term ‘detention review officer’ is now redundant. To rectify this anomaly in line with the bill’s original intent an amendment has been made in the Legislative Assembly to ensure that the term ‘detention appeals officer’ is used instead of ‘detention review officer’. It is a minor clarification to ensure that these officers can effectively respond outside of a pandemic context. An example of this could be a biological threat or an agent with high transmissibility and mortality such as smallpox.
Motion agreed to and debate adjourned for one week.