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Health Legislation Amendment Bill 2011
Health Legislation Amendment Bill 2011
Explanatory Notes
Short title
The short title of the Bill is the Health Legislation Amendment Bill 2011.
Policy objectives and the reasons for them
The Health Legislation Amendment Bill 2011 (the Bill) makes
amendments to Health portfolio legislation to support policy initiatives to
protect the health of Queenslanders and to improve the effective operation
of the relevant Acts. In particular, the Bill amends the:
· Food Act 2006 to provide for the establishment of a consistent
framework for local governments to implement a food business rating
scheme for licensed food businesses in their area; to improve the
powers of the Chief Executive to respond to suspected intentional
food contamination; to alleviate the regulatory burden on operators of
food vending machines; to improve the process for considering
applications for persons applying for approval as an auditor; to
improve the mechanism by which an auditor is required to advise of a
conflict of interest; and to update modifications to the application of
the Food Standards Code in Queensland and redundant references in
the legislation;
· Health Act 1937 to create a fee-making head of power;
· Health Quality and Complaints Commission Act 2006 to clarify the
ability of the Health Quality and Complaints Commission to interact
with both state and national boards to effectively deal with complaints
concerning registered health practitioners;
· Pest Management Act 2001 to prescribe a competency document that
must be submitted to support an application for a pest management
licence;
· Public Health Act 2005 to improve the operation of powers to control
the spread of contagious conditions at schools and child care services,
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Health Legislation Amendment Bill 2011
and to allow the Chief Executive to delegate the power to release
information from the Notifiable Conditions Register;
· Public Health (Infection Control for Personal Appearance Services)
Act 2003 to update a superseded document reference; and
· Tobacco and Other Smoking Products Act 1998 (Tobacco Act) to ban
the sale of fruit-flavoured and confectionary-flavoured cigarettes; to
clarify the intent of designated outdoor smoking areas at licensed
premises; to remove a redundant obligation on some businesses to
display `no smoking signs'; to ban the sale of objects, such as novelty
items, that resemble smoking products; and to provide for smoking
products seized from minors to be forfeited to the State.
Food Act 2006
The Bill addresses a number of key policy issues related to the Food Act.
· Food business rating system
The main purposes of the Food Act are to: ensure food for sale is safe and
suitable for human consumption; to prevent misleading conduct in relation
to the sale of food; and to apply the Food Standards Code. Some of the
ways in which the purposes are achieved are by providing for the licensing
of particular food businesses and by providing for the monitoring and
enforcement of compliance with the Act and the Food Standards Code.
Using the functions of the Food Act as a basis, some local governments
have implemented, or have shown an interest in implementing, a food
business rating scheme within their local government area as a means of
improving food safety standards, reducing incidences of food borne illness
and assisting consumers to make informed food and dining choices. A
food business rating scheme operates by assessing a food business against
specific criteria to provide a rating of the food safety and hygiene standards
of the business. As confidentiality provisions of the Food Act prevent
publication of the results of food safety audits without the consent of the
food business concerned, participation in these local government schemes
is voluntary for food businesses.
If local governments implement their own framework for a food business
rating scheme, there could potentially be up to 74 different schemes
operating across Queensland. This could create inconsistency with ratings
or criteria being used by local governments, which may confuse consumers
or businesses operating over several local government areas. It may also
undermine consumer confidence in any food business rating scheme.
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Health Legislation Amendment Bill 2011
Mandating a consistent framework for local governments would ensure the
effectiveness of food business rating schemes operating across Queensland.
The merits of a consistent framework for a food business rating scheme
have been recognised at a national level, with work currently underway
through the Implementation Sub-Committee of the Australia and New
Zealand Food Regulation Ministerial Council to develop a national
framework for a scheme. Queensland is actively participating in
discussions to develop the national framework. In accordance with the
national approach to food regulation within Australia, which saw the
re-signing in 2008 of the Council of Australian Governments' Food
Regulation Agreement (in which all States and Territories agreed to adopt
Annex A of the national Model Food Act), jurisdictions may then prescribe
the national framework in their respective food legislation.
· Reducing the recurrence of suspected food contamination
The Food Act establishes a range of investigatory and enforcement powers
in relation to the suspected intentional contamination of food. In
particular:
· the responsible person for a food business must orally report
suspected intentional contamination of food to the Chief Executive,
Queensland Health immediately on first forming the suspicion; and
· the Chief Executive, on receipt of such a report, may give the
responsible person a reasonable direction about identifying the source
of the contamination and preventing or minimising the risk to public
health or safety caused by the potentially contaminated food.
However, these powers do not provide the Chief Executive with the
necessary means to direct a food business to undertake appropriate
procedures to prevent a recurrence of the contamination. Specifically, the
Food Act does not empower the Chief Executive to give a food business in
relation to which a report has been made, a direction to comply with the
provisions of the national Food Standards Code in relation to food intended
for sale. This action is prevented because local government has the
responsibility for enforcing the relevant section of the Act that requires
compliance with the Food Standards Code.
· Food businesses carried on from vending machines
To carry on a licensable food business in Queensland, the Food Act
requires a person to apply for a licence. For a business that does not
involve off-site catering, where the business is to be carried on from fixed
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Health Legislation Amendment Bill 2011
or temporary premises, the application must be made to the local
government for the area in which the premises is located. Where the
business is to be carried on from mobile premises, the application may be
made to any local government for an area in which the business intends to
operate. The selling of unpackaged foods, such as hot chips, from vending
machines is considered a licensable activity for the purposes of the Food
Act. As a vending machine does not meet the definition of mobile
premises, it must currently be licensed as fixed premises. In practice,
vending machines are frequently moved between locations based on
demand. Operators are therefore required to apply to the relevant local
government for a new licence each time they are moved into that local
government area. This creates an unnecessary burden on industry that can
be alleviated by capturing vending machines as mobile premises for the
purposes of the Food Act.
· Failure to decide a food safety program auditor application
An individual may apply to the Chief Executive for approval as an auditor
of accredited food safety programs (`an approved auditor'). The Chief
Executive has 30 days in which to decide an application for approval as an
auditor, and failure to meet this timeframe is taken to be a decision to
refuse the application. However, the Chief Executive may only grant
approval if satisfied the applicant is a suitable person to be an auditor,
which in practice requires a criminal history check to be undertaken in
relation to each applicant. Situations have occurred where information,
such as a criminal history check, has not been received in sufficient time to
allow the application to be decided within 30 days, resulting in automatic
refusal of otherwise eligible applicants. In these cases, the ability to extend
the initial 30-day time period by a further 30 days would benefit applicants.
· Conflicts of Interest
The Food Act provides that an auditor's approval is subject to the auditor
giving the Chief Executive notice of a direct or indirect financial or other
interest the auditor may have in a food business that could conflict with the
proper performance of their functions, or any other reasonable conditions
the Chief Executive considers appropriate for the proper conduct of an
audit. The approved auditor must give written notice to the Chief
Executive immediately after the auditor becomes aware of the interest. In
practice, the requirement to provide written notice is unreasonably
inflexible, taking into account legitimate reasons why immediate written
notice may be impractical, such as the auditor being in a remote location,
the time of day the conflict becomes known and other various factors.
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Health Legislation Amendment Bill 2011
Therefore, a more flexible method for an auditor to give notice of a conflict
of interest is required.
· Modifications to the application of the Food Standards Code
Queensland is a signatory to the Food Regulation Agreement in which all
States and Territories agreed to adopt Annex A of the national Model Food
Act. Annex A includes the requirement that food businesses comply with
the Australia New Zealand Food Standards Code (the Code), which
comprises national food safety standards. The Queensland Food Act was
passed before the Model Food Act was finalised and consequently varies to
some degree from the Model Food Act. In particular, the Food Act adopts
the Code with some modifications, including that Standard 3.2.1 (Food
Safety Programs) does not apply in Queensland. Instead, the Food Act
includes extensive provisions about food safety programs
A new food safety standard (Standard 3.3.1 - Food Safety Programs for
Food Service to Vulnerable Persons) commenced in October 2008,
requiring food businesses that process or serve potentially hazardous food
to six or more vulnerable persons to comply with Standard 3.2.1. As
Standard 3.2.1 does not apply in Queensland, Standard 3.3.1 also has no
effect. However, Standard 3.3.1 must be prescribed in the Food Act as a
modification. Otherwise, the obligation on food businesses to comply with
the Code can not be met. In order to address this anomaly, a regulation was
made under section 278 of the Food Act as a temporary measure (until an
amendment could be made to the Food Act) to exempt the new Standard
3.3.1 from applying to the Food Act. This regulation expired one year after
it was made and cannot be remade.
· Reference to a redundant buyer licence scheme
The Food Act provides exemptions from licensing requirements for certain
food businesses. Currently, the processing or sale of fisheries resources
under a buyer licence issued under the Fisheries Regulation 1995 (now the
Fisheries Regulation 2008) is included in these exemptions. The buyer
licence under the Fisheries Regulation was repealed on 1 January 2010 to
facilitate introduction of the Seafood Food Safety Scheme. All primary
production food businesses intended to be exempt from licensing under the
Food Act are captured by an existing exemption (i.e. for businesses
involved in the production of primary produce under an accreditation
granted under Part 5 of the Food Production (Safety) Act 2000). The
exemption for the processing or sale of fisheries resources under a buyer
licence therefore became redundant on 1 January 2010.
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Health Act 1937
In Queensland, fees and charges for government services should be set at a
level that enables departments and statutory bodies to recover costs
involved in supplying goods and services. This principle is supported by:
· the Queensland Treasury Principles for fees and charges;
· the Financial and Performance Management Standard 2009; and
· the Auditor-General's Report to Parliament No.4 of 2007.
When the Health Act was first drafted in 1937 there was not the same level
of complexity surrounding drugs and poisons that currently exists. In
addition, the Health Act has been the subject of an extensive review
commencing in 1994, which has seen much of the Act repealed to create
independent legislation for managing public health risks and licensing
regimes for the pest management industry and private health facilities. As
a result, the Health Act does not provide a specific head of power for the
prescribing of fees to be paid for endorsement services in relation to the
regulation of drugs, poisons and therapeutic substances. Consistent with
government policy and current legislation, amendments are required to
provide a head of power to enable the setting of fees for endorsement
services.
Health Quality and Complaints Commission Act 2006
The Health Quality and Complaints Commission Act (HQCC Act)
establishes the Health Quality and Complaints Commission (the
Commission) to provide oversight and review of the quality of health
services, and independent review and management of health complaints.
The HQCC Act works in concert with the Health Practitioner Regulation
National Law (the National Law), which is contained as a Schedule to the
Health Practitioner Regulation National Law Act 2009 (Qld) and is the
principal legislation for the National Registration and Accreditation
Scheme for the Health Professions (the National Scheme) which
commenced on 1 July 2010. The two Acts set out the circumstances and
requirements to enable interactions to take place in relation to complaints
about health services or health practitioners.
Section 150 of the National Law describes how the Commission and a
National Board must work together should a notification or complaint be
made about a nationally registered provider. Since the introduction of the
National Law, the Australian Health Practitioner Regulation Agency (the
National Agency) and the health complaints entities in each jurisdiction
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Health Legislation Amendment Bill 2011
(other than New South Wales) have entered into a memorandum of
understanding (MOU) to support the implementation of section 150 of the
National Law. The MOU sets out:
· the roles and responsibilities of the National Agency, the National
Boards and the health complaint entities; and
· the agreed procedures and timeframes as to how each of these bodies
will ensure compliance with section 150 in relation to the sharing of
information, making preliminary enquiries about a matter, developing
recommendations about how a matter should be dealt with having
regard to the mechanisms provided under the National Law as
compared to a jurisdictions' health complaints legislation and
reaching consensus on which body and how this body should deal
with a matter.
Chapter 5 of the HQCC Act sets out a range of provisions in relation to the
making and handling of a health complaint. The various parts under this
chapter define what a health complaint is for the purposes of the Act (i.e. a
health quality complaint or a health service complaint), who may make a
health complaint, how to make a health complaint, and the actions that may
be taken by the Commission in relation to a health complaint. This chapter
needs to work in concert with the requirements of section 150 of the
National Law.
The Commission has identified some gaps in the HQCC Act as a result of
its experience in handling matters concerning nationally registered
providers. These gaps are restricting the ability for the Commission to
continue to effectively deal with complaints relevant to nationally
registered health practitioners. It is therefore necessary to clarify the
ability of the Commission to interact with both state and national boards to
effectively deal with complaints concerning registered health practitioners.
Pest Management Act 2001
One of the requirements to be licensed in Queensland as a pest
management technician is to hold a relevant pest management qualification
for the pest management activity intended to be carried out under the
licence. A licence issued under the Act for a fumigation activity will be
limited to the site environment in which the person applying for the licence
has demonstrated competence. A fumigation activity includes measuring,
mixing or weighing when preparing a fumigant for use, and also includes
the use of a fumigant to kill a pest, or sterilise grain or seed to prevent
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Health Legislation Amendment Bill 2011
germination. Competence in a fumigation activity must be demonstrated in
one or more site environments, such as a ship's hold or a silo.
The Pest Management Act currently requires a licence to state the site
environments under which a fumigation activity may be carried out.
Despite this requirement, the Act does not stipulate that a declaration of
assessment in relation to that competence must be provided in support of an
application for a pest management licence. Instead, this competency
document is sought administratively. To overcome this discrepancy, it is
necessary to prescribe a document - a declaration of assessment - that is
required to accompany an application for a pest management technician
licence, if the application is for a licence under which a fumigation activity
may be carried out only in a certain site environment.
Public Health Act 2005
The Bill addresses a number of key policy issues related to the Public
Health Act.
· Managing outbreaks of childhood contagious conditions
In recent years, outbreaks of measles, Avian Influenza and Human Swine
Influenza in Queensland have provided a platform for a review of the
practical application of current powers under the Public Health Act for
managing the spread of childhood contagious conditions, which provide
that:
· at least one child at a school or child care service must be confirmed
as having, or must exhibit symptoms of a contagious condition before
powers to remove the child from the school or service are activated;
and
· there must be an outbreak of a contagious condition at a school or
child care service before powers to take preventative action, such as
school/service closures or issuing directions about precautions to
minimise exposure, are activated.
A review of these provisions, in light of the above outbreaks of contagious
conditions, has highlighted that these powers do not reflect that exposure
by an unvaccinated child to a contagious condition may occur outside the
school or service, such as through social functions, through interschool
sports carnivals or via a sibling coming into contact with the condition at a
different school. Having to restrict activation of these powers until a
contagious child attends the school or service, or for an outbreak to occur at
the school or service, places unvaccinated or partly vaccinated children at
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the school or service at risk of contracting the condition and does not help
to prevent an outbreak in the first place.
Recognising the broader range of scenarios in which a child or person may
be exposed to a contagious condition will enable earlier activation of
powers to remove a contagious child from a school or child care service, or
to close a school or service, as a more appropriate means of interrupting the
transmission cycles of contagious conditions, including vaccine
preventable conditions, and protecting children from contracting conditions
which can potentially have fatal outcomes.
· Releasing information from the Notifiable Conditions Register
The objects of the Public Health Act include preventing, controlling and
reducing risks to public health, and providing for the identification of, and
response to, notifiable conditions. Notifiable conditions, prescribed under
the Act, represent serious, communicable diseases, such as Acquired
Immunodeficiency Syndrome (AIDS), Avian influenza, Dengue,
Diphtheria, Hendra virus infection, Hepatitis (A, B, C, D and E), Human
Immunodeficiency Virus (HIV) infection, Measles, Meningococcal, Severe
Acute Respiratory Syndrome (SARS) and Tuberculosis.
The Notifiable Conditions Register is established under the Public Health
Act to help protect the community from death and illness from the spread
of communicable diseases (notifiable conditions), while maintaining an
appropriate balance between the health of the public and individuals' rights
and privacy. Information about people who have, or may have, a notifiable
condition must be reported to Queensland Health for inclusion on the
register. This process enables Queensland Health to, amongst other things,
undertake contact tracing, infection control and provision of relevant
information, to identify outbreaks and assist in their management, to
undertake surveillance and develop public health policy and strategies to
better manage outbreaks and transmission.
Information reported to the register is highly protected from disclosure,
except in specific circumstances, including for persons performing duties
under the Act (such as for contact tracing). Queensland Health can use
information reported to the register to help trace and assist persons who
may have been exposed to a notifiable condition to prevent the spread of
the condition in the community.
Section 81 of the Public Health Act permits the disclosure of confidential
information where the Chief Executive (Queensland Health) believes, on
reasonable grounds, that the disclosure is in the public interest. A `public
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Health Legislation Amendment Bill 2011
interest disclosure' must be authorised in writing by the Chief Executive
and reported (without identifying information) in the department's annual
report. In practice, there have been instances where it has been proposed
that confidential information be disclosed in the public interest, but due to
the unavailability of the Chief Executive, written approval could not be
obtained in a timely manner. This has serious public health implications in
circumstances where the urgent release of the information to parties who
may have been exposed to a condition is reasonably required to prevent the
spread of the condition. In order to avoid this situation recurring in
circumstances where action needs to be taken urgently to prevent the
spread or minimise the exposure of individuals to a notifiable condition, it
is proposed to enable the Chief Executive to delegate their authority under
section 81, but to limit the delegation to the Chief Health Officer or an
appropriately qualified senior officer of the department with the necessary
expertise and experience in public health to exercise the powers.
Public Health (Infection Control for Personal Appearance Services) Act
2003
The Public Health (Infection Control for Personal Appearance Services)
Act (Public Health (ICPAS) Act) sets out the criteria that local
governments may consider when deciding whether premises are suitable
for providing higher risk personal appearance services (such as body
piercing, scarring and tattooing), including whether the premise would
comply with the Queensland Development Code (QDC). The QDC
consolidates Queensland's building standards into a single document and
covers matters outside the scope of, or in addition to, the Building Code of
Australia. The Public Health (ICPAS) Act currently references Part 15 of
the QDC in relation to mandatory building standards to minimise the risk
of infection in a place or business where higher risk personal appearance
services are provided. The QDC has adopted a revised numbering system
and Part 15 is now referred to as MP 5.2. Therefore, the reference to Part
15 of the QDC in the Public Health (ICPAS) Act requires updating.
Tobacco and Other Smoking Products Act 1998
The Bill addresses a number of key policy issues related to the Tobacco
Act.
· Prohibited products
The Tobacco Act currently prohibits certain conduct that makes tobacco
more easily obtainable or more desirable to children. This includes
prohibiting the sale of food or toys that resemble tobacco products or the
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sale of single cigarettes. Prohibiting the sale of food or toys that resemble
tobacco products is based on studies that show that children who have used
these novelty products are more likely to experiment with tobacco than
children who have not. Recently, a number of gadgets and trinkets, such as
cigarette shaped pens and lighters, have emerged and are available for sale
in Queensland. Despite having a similar novelty value to toys, these
products do not fall within the general meaning of toys, because their use is
often for more practical purposes than to play with. However, like toys and
food, these items normalise smoking to young people and encourage
experimentation with smoking.
In addition, a number of tobacco products which appear to be specifically
targeted at young people have emerged on the market in recent years.
These include fruit-flavoured or confectionary-flavoured cigarettes sold in
attractive packaging with pleasant aromas and appealing descriptions of
their tobacco flavours, such as Cherry Cheesecake and Vanilla Filter. In
response to concerns about the impact of these products on influencing
young people to take up smoking, the Australian Health Ministers'
Conference agreed for all jurisdictions to ban the sale of fruit-flavoured and
confectionary-flavoured cigarettes; a decision later ratified by the
Ministerial Council on Drug Strategy. Queensland supported these
decisions, as the availability of these products is contrary to the intent of
the Tobacco Act to prohibit conduct which makes tobacco desirable to
children.
· Smoking at licensed premises
The Tobacco Act prohibits smoking in an outdoor place where eating or
drinking is allowed, such as an alfresco dining area of a restaurant or café.
However, licensees of licensed premises (such as clubs and hotels) may
designate a smoking area within an outdoor area of the premises, known as
a `designated outdoor smoking area' (DOSA), where drinking and smoking
is permitted (though drinks may only be brought into, and not served, in the
area). A DOSA must meet minimum statutory requirements, which
include having a buffer impervious to smoke adjacent to other parts of the
outdoor area of the premises ordinarily accessed by patrons. Offences
apply to licensees and occupiers (i.e. the manager or person in control of
the place) who do not ensure the DOSA complies with statutory
requirements.
The policy intent behind these DOSA requirements when they were
introduced in 2004 is to balance the need to protect public health by
reducing the exposure of hospitality workers and patrons to the harmful
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Health Legislation Amendment Bill 2011
effects of environmental tobacco smoke (ETS), with the ability for
licensees to provide an onsite area to be used infrequently and for short
periods of time by smoking patrons, without exposing other patrons and
staff to ETS. Licensees choosing to establish a DOSA are required to
develop a smoking management plan to manage and minimise the adverse
effects of smoking in the licensed premises.
Enforcement of the DOSA provisions has highlighted contrary
interpretations of some of the provisions by licensees. To remove
ambiguity in the legislation and improve compliance by licensees, it is
necessary to clarify the original policy intent of the statutory requirements
in relation to measuring a buffer between smoking and non-smoking areas
of different floor height, and providing appropriate examples of a screen
that is impervious to smoke.
· Forfeiture of smoking products seized from children
The Tobacco Act empowers an authorised person to seize a thing if the
person reasonably believes the thing is evidence of an offence against the
Act. If a person is convicted in relation to the alleged offence, a court may
order the forfeiture of the thing to the State. However, where the person is
not convicted, the thing is required to be returned to the person, either at the
end of six months or at the end of any proceeding in relation to the offence.
The practical effect of these provisions means that, for example, if
cigarettes are seized from a child (whether purchased by the child or
supplied to the child by an adult) and a prosecution is not pursued or is
unsuccessful in relation to offences of supplying cigarettes to children, the
cigarettes must be returned to the child. This is an undesirable policy
outcome and contrary to the intent of the Tobacco Act.
· Display of a `no smoking sign'
The Tobacco Act requires a licensee of licensed premises to display a `no
smoking sign' at the entrance to the premises. This provision was
particularly important when the smoke-free laws were first introduced and
reinforced the Government's intended anti-smoking message. However, it
has been found in practice to be broader than required, given the large
number and diverse range of premises captured by this provision, such as
licensed boats, long distance trains and bottle shops located within
shopping centres. The chief intent of this provision is to capture high risk
premises such as clubs, hotels and casinos. This is because these venues
have the option of designating an outdoor smoking area where both
drinking and smoking may occur, so it is important in these premises to
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Health Legislation Amendment Bill 2011
reinforce that smoking indoors is strictly prohibited. It is unnecessary to
require signage to be displayed at every entrance to all licensed premises,
such as those located entirely within facilities which are already
smoke-free (such as shopping centres) and those which are not available to
public use.
Achievement of policy objectives
Food Act 2006
The Bill provides for the establishment of a statewide food business rating
scheme that local governments may decide to implement for licensed food
businesses in their local government area. To achieve statewide
consistency, the Bill creates an offence that prohibits a local government
from implementing a scheme that does not comply with the model
prescribed in Regulation. A penalty of 1,000 penalty units applies to the
offence. The Bill does not provide for the immediate introduction of a
model scheme, as this is reliant upon the approval by the Australia and
New Zealand Food Regulation Ministerial Council of the national
framework for a food business rating scheme that is currently being
developed. However, the Bill establishes a head of power to provide for the
establishment of a consistent statewide model for local governments to
implement.
The Bill makes further amendments to the Food Act to:
· improve the powers of the Chief Executive for responding to
suspected intentional food contamination by requiring a business to
undertake steps to comply with the Food Standards Code, to prevent
recurrence of the contamination;
· alleviate the current burden on licensees operating food vending
machines selling unpackaged food, such as hot chips, by capturing
food vending machines as `mobile premises' rather than `fixed
premises' (to remove the requirement for those licensees to seek a
new food business licence each time a vending machine is moved to a
new location within a different local government area);
· avoid automatic refusal of an application for approval as an auditor in
cases where additional information, such as a criminal history report,
is not received within the initial 30-day time period to decide an
application, by enabling the 30-day time period to be extended by a
further 30 days;
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Health Legislation Amendment Bill 2011
· improve the current mechanism (immediate written notice) by which
an approved auditor must advise the Chief Executive of a conflict of
interest in relation to a food business, by requiring oral notification to
be provided immediately, followed by written notification within 24
hours of becoming aware of the conflict; and
· update the legislation by removing a reference to a discontinued
scheme for a fisheries buyer licence, and updating the modifications to
the Food Standards Code in Schedule 2 of the Act to accurately reflect
the way in which the Code is applied in Queensland.
Health Act 1937
The Bill amends the Health Act to create a fee-making head of power for
endorsements provided under the Health Act. This will enable Queensland
Health to appropriately recover costs involved in supplying services in
relation to endorsements, in accordance with government policy.
Health Quality and Complaints Commission Act 2006
Amendments to the Health Quality and Complaints Commission Act will
ensure that the Health Quality and Complaints Commission can interact
with state and national boards to effectively deal with complaints about
registered health practitioners.
Pest Management Act 2001
The Pest Management Act is amended to prescribe a document that is
required to accompany an application for a pest management technician
licence, if the application is for a licence under which a fumigation activity
may be carried out only in a certain site environment. The amendment will
specify that the application must be accompanied by a written declaration
of assessment, signed by an accredited assessor, which states the site
environments in which the person has demonstrated competence in
undertaking a fumigation activity.
Public Health Act 2005
The Bill amends existing powers in the contagious conditions provisions of
the Public Health Act to enable a child to be removed from a school or
child care service, or to enable the closure of a school or child care service,
in situations where exposure of a child to a contagious condition, or an
outbreak of a condition, has occurred in the community, rather than in the
school or service.
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Health Legislation Amendment Bill 2011
Amendments are also made to the Public Health Act to enable the Chief
Executive to delegate the power to authorise a public interest disclosure in
relation to a notifiable condition to the Chief Health Officer or another
appropriately qualified senior officer of the department with expertise in
public health.
Public Health (Infection Control for Personal Appearance Services) Act
2003
The Bill updates a superseded reference to part 15 of the Queensland
Development Code (QDC) in the Public Health (Infection Control for
Personal Appearance Services) Act, to reflect the renaming of this part in
2007 to `MP 5.2'.
Tobacco and Other Smoking Products Act 1998
Amendments to the Tobacco Act will ban the sale of fruit-flavoured and
confectionary-flavoured cigarettes. This amendment will bring
Queensland into line with other jurisdictions and will give effect to the
decisions of the Australian Health Ministers' Conference and the
Ministerial Council on Drug Strategy for all jurisdictions to enact
legislation to prohibit the sale of these products. The ban will not capture
the sale of menthol cigarettes or fruit flavoured loose tobacco, such as
shisha tobacco smoked in traditional hookah pipes, as these products are
not marketed specifically at children. Further minor amendments are
proposed to:
· broaden the types of products that are prohibited from sale under the
Act, from toys and food that resemble tobacco products, to all objects
that resemble tobacco products. This will capture gadgets and trinkets
with a similar `novelty' value to toys, such as cigarette shaped pens
and lighters, which normalise smoking to young people and
encourage experimentation with smoking;
· clarify the original policy intent of designated outdoor smoking areas
(DOSAs) at licensed premises by:
-- specifying how the required 2.1 metre high buffer between
smoking and non-smoking areas of different floor height must be
measured, to ensure the full 2.1 metre buffer is provided to
protect non-smoking patrons from environmental tobacco
smoke; and
-- removing `a thick screening hedge' as an example of a screen
that is impervious to smoke.
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Health Legislation Amendment Bill 2011
· narrow the current requirement for a `no smoking' sign to be
displayed at every entrance to a licensed premise, to only the public
entrances to the enclosed parts of clubs, hotels and casinos; thus
removing an onerous requirement for signage at places that already
prohibit smoking, such as a bottle shop located inside a shopping
centre; and
· provide for smoking products seized from a child in relation to an
offence to be automatically forfeited to the State, regardless of
whether a person is convicted of the offence, to avoid these items
having to be returned to the child.
Alternative ways of achieving policy objectives
For all the amendments in the Bill, there are no other viable alternatives
that would achieve the policy objectives other than the proposed Bill.
Estimated cost for government implementation
The cost of enforcing the food business rating scheme provisions are likely
to be minimal and these costs will be met within current departmental
resources. The costs for implementing the remaining amendments will be
minimal and will be met from existing budget allocations.
Consistency with fundamental legislative principles
A number of potential breaches of Fundamental Legislative Principles arise
in the Bill.
Food Act
· Compliance with the Food Standards Code
The amendment to section 271D of the Food Act will enable the Chief
Executive of Queensland Health to require a business to undertake steps to
comply with the Food Standards Code (the Code), which comprises
national food safety standards, to prevent recurrence of the contamination.
This will be in addition to existing directions the Chief Executive may give
under section 271D(3) to prevent or minimise the risk to public health or
safety caused by potentially contaminated food.
As the Code is not subject to disallowance by Parliament, the proposed
amendment to the Food Act to empower the Chief Executive to direct a
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Health Legislation Amendment Bill 2011
food business to comply with the Code raises the question of whether the
amendment has sufficient regard to the institution of Parliament
(Legislative Standards Act 1992, section 4(4)) and whether it sufficiently
subjects the exercise of a delegated legislative power to the scrutiny of the
Legislative Assembly (Legislative Standards Act 1992, section 4(4)(b)).
The Government provides input to the development of the Code through a
mechanism prescribed under the Food Standards Australia New Zealand
Act 1991(Cth). This process requires Food Standards Australia New
Zealand to conduct two rounds of public consultation on proposals to vary
existing standards or to include new standards in the Code. The Australia
and New Zealand Food Regulation Ministerial Council (ANZFRMC),
comprised of Health Ministers from each jurisdiction, needs to endorse any
proposal before it becomes law.
Further, the Food Act gives effect to a national approach to food regulation
within Australia. On 3 July 2008, the Council of Australian Governments
re-signed the Food Regulation Agreement, in which all States and
Territories agreed to adopt Annex A of the national Model Food Act.
Annex A includes the requirement that food businesses comply with the
Code.
The Food Act already requires food businesses to comply with the Code (as
modified by section 14 of the Food Act). The proposed amendment will
not impose new obligations on businesses, but will simply provide a further
means of ensuring compliance in circumstances which present an
unacceptable risk of harm to the public.
· Food Business Rating Scheme
The Bill inserts a new Part 3B into Chapter 11 of the Food Act to establish
a head of power and an offence (new section 271H), whereby a local
government may implement a food business rating scheme (defined in new
section 271F), but only if it complies with the model prescribed under
section 271G. New section 271G provides that a Regulation may prescribe
requirements applying to a food business rating scheme. In addition, a
penalty of 1,000 penalty units applies to a local government that introduces
a non-compliant scheme.
New Part 3B raises a number of fundamental legislative principles in
relation to whether the Bill has sufficient regard to the institution of
Parliament and to the rights and liberties of individuals. Specifically:
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Health Legislation Amendment Bill 2011
· whether the Part authorises the amendment of an Act by another Act
(Legislative Standards Act 1992, section 4(4)(c)) - also known as a
Henry VIII clause;
· whether the Part is unambiguous and drafted in a sufficiently clear and
precise way (Legislative Standards Act 1992, section 4(3)(k)).
In addition, the creation of a new offence and penalty raises a fundamental
legislative principle previously considered by the former Scrutiny of
Legislation Committee of whether consequences imposed by legislation
are proportionate and relevant to the actions to which the consequences are
applied by the legislation.
Henry VIII clause
Prescribing the details of the scheme in Regulation raises the fundamental
legislative principle of whether the Bill has sufficient regard to the
institution of Parliament and whether it authorises the amendment of an
Act by another Act (Legislative Standards Act 1992, section 4(4)(c)).
The food business rating scheme to be prescribed in Regulation will reflect
the national framework currently being developed through the
Implementation Sub-Committee of the ANZFRMC. It is anticipated that a
national framework will not be finalised until at least 2012, shortly after
which Queensland will make a Regulation to prescribe the details and
requirements of the nationally agreed framework.
The Bill is consistent with the national approach to food regulation within
Australia, including the model food legislation, and with the intent of the
ANZFRMC to maintain national consistency by developing a framework
for a food business rating scheme for all jurisdictions to adopt. It is
expected that other jurisdictions will introduce similar amendments to their
food legislation in the future to prescribe the national framework.
The use of a statutory instrument to prescribe the requirements of the
scheme was deemed the most appropriate mechanism, as the translation of
the national framework into legislation has the potential to result in
provisions that are technical, complex and prescriptive in nature. The
regulation will facilitate the effective application of an innovative
legislative concept.
The benefits to be gained from the introduction of a consistent regulatory
framework for a local government to conduct a food business rating
scheme will be lost if it falls out of step with refinements that may be made
at the national level once jurisdictional implementation of the approved
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Health Legislation Amendment Bill 2011
scheme has occurred. Furthermore, as the Regulation is subordinate
legislation, it will be subject to Part 6, Division 3 of the Statutory
Instruments Act 1992, which allows the Legislative Assembly to pass a
resolution disallowing the subordinate legislation.
Ambiguity
Adherence to fundamental legislative principles requires that liability
should be expressed with clarity, as it is important where a sanction applies
that a person should be able to determine with a degree of confidence
whether they are subject to the sanction.
New section 271H prescribes the offence of a local government that
conducts a food business rating scheme other than in compliance with the
requirements prescribed in Regulation (under new section 271G). It is
essential for a local government to know what it does, or does not do, that
would constitute a breach of the offence. For this reason, the meaning of
`conduct' has been sufficiently defined in new section 271H. In addition,
new section 271E, which outlines the purpose of new Part 3, has been
inserted to help mitigate the potential ambiguity that arises from the current
lack of detail about the prescribed scheme.
Penalty
The offence penalty of 1,000 penalty units is consistent with other penalties
in the Food Act in relation to compliance with food and hygiene standards.
As a scheme may be indicative of a licensed food business's level of
compliance with the Food Act and may potentially influence consumer
choice, ensuring a robust and consistent scheme throughout the State is as
imperative to the success of the scheme as the food standards and hygiene
legislation on which it is based. Consequently, an adequate and
proportionate penalty was required to ensure compliance by local
governments. The penalty is therefore considered proportionate to the
offence and is consistent with other penalties within the Food Act that
relate to similar matters.
Health Act
· Regulation-making power to set fees for endorsements
An amendment to the Health Act will insert a regulation-making head of
power to prescribe fees for endorsements. This amendment raises the
fundamental legislative principle of whether the Bill has sufficient regard to
the institution of Parliament and whether it allows the delegation of
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Health Legislation Amendment Bill 2011
legislative power only in appropriate cases and to appropriate persons
(Legislative Standards Act 1992, section 4(4)(a)).
Agencies have a responsibility under the Financial and Performance
Management Standard 2009 (the Standard) to set user charges at a rate
which accurately reflects the cost of providing the related service. The
Standard, issued under the Financial Accountability Act 2009 authorises
the accountable officer of a department (such as the Chief Executive) to fix
fees and charges for goods and services provided by the department. When
identifying goods and services for which users are to be charged, the
accountable officer must consider whether the administrative costs of
charging and collecting charges for the goods and services offered are more
than, or may be more than, the revenue collected.
Similarly, the Auditor-General's Report to Parliament No. 4 of 2007
requested departments develop and implement suitable methodologies to
accurately identify the costs of delivering the products and services that
make up the department's output.
The clear intent behind the provisions of the Financial Accountability Act,
the Standard and the Auditor-General's Report is that fees and charges for
government services should be set at a level that enables a department to
recover costs involved in supplying goods and services.
Furthermore, in Queensland, the setting of fees and charges must be
undertaken in accordance with Queensland Treasury's Principles for fees
and charges issued in January 2006. Fees and charges for departments and
statutory bodies are to be indexed annually by the full movement in the
Australian Bureau of Statistics Brisbane All Groups Consumer Price Index
(CPI).
Consistent with other legislation, particularly within the Health portfolio,
the setting of fees by subordinate legislation is a more appropriate means of
prescribing fees, as it saves pressure on Parliamentary time and enables
fees to be prescribed and updated in a timely manner in order to meet
statutory obligations and adhere to government policy.
Public Health Act
· Releasing information from the Notifiable Conditions Register
The power for the Chief Executive to delegate their authority to authorise a
public interest disclosure from the Notifiable Conditions Register (the
Register) to an appropriately qualified senior officer of the department
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Health Legislation Amendment Bill 2011
raises the fundamental legislative principle of whether the clause has
sufficient regard to rights and liberties of individuals, specifically whether
it allows the delegation of administrative power only in appropriate cases
and to appropriate persons (Legislative Standards Act 1992, section
4(3)(c)).
It is recognised that the power to disclose confidential information from the
Register creates significant implications for the rights of affected
individuals. Any disclosure on public interest grounds should only occur
where the public interest is clearly established, such as to prevent the
imminent risk of the transmission of a notifiable condition. In order to
maintain public confidence in, and cooperation with, public health
authorities, it is critical that the power to disclose information is at all times
exercised transparently and accountably.
With these strong precautionary points in mind, a number of strict
safeguards are built into the legislation to provide transparency and to
prevent any misuse, or perception of misuse, from arising in relation to this
delegation. These include providing that:
· a delegation may only be made to the Chief Health Officer or another
appropriately qualified senior officer of Queensland Health that the
Chief Executive is satisfied has the necessary expertise or experience
in public health issues;
· sub-delegation of the power by either delegate is not permitted; and
· any decisions by the delegate to disclose confidential information
from the Register, and the nature of the information disclosed, must be
included in Queensland Health's annual report (as is currently
required for public interest disclosures by the Chief Executive).
Tobacco and Other Smoking Products Act
· Forfeiture of seized tobacco products from children
Amendments to the Tobacco Act provide for tobacco products seized from
a minor to be forfeited to the State, rather than be returned to the child,
even where no person is convicted over the offence in relation to which the
products were seized. This raises the fundamental legislative principle of
whether the clause has sufficient regard to rights and liberties of
individuals, specifically whether it provides for the compulsory acquisition
of property without fair compensation (Legislative Standards Act 1992,
section 4(3)(i)). However, it is considered that the forfeiture of tobacco
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Health Legislation Amendment Bill 2011
products in these circumstances is amply justified by the clear public
interest in limiting children's access to tobacco products, which is the
overriding objective of the Tobacco Act. To require the products to be
returned to the minor or the minor to be otherwise compensated for the
forfeiture would have the effect of sanctioning the illegal sale or supply of
smoking products and harmful behaviour by children, and potentially
enabling its recurrence.
Consultation
Targeted consultation was undertaken with key stakeholders in relation to
the Bill.
A consultation draft of the amendments to the Food Act was provided to
the Local Government Association of Queensland.
Consultations were also undertaken with the Health Quality and
Complaints Commission, the Australian Health Practitioner Regulation
Agency and the Office of Health Practitioner Registration Boards in
relation to the amendments to the HQCC Act.
The following stakeholders were provided with a consultation draft of the
amendments to the Public Health Act in relation to responses to childhood
contagious conditions:
· C & K Pre-schooling Professionals
· Childcare Queensland
· Queensland Catholic Education Commission
· Independent Schools Queensland
· The Gowrie (Queensland)
· Queensland Lutheran Early Childhood Services.
The Cancer Council Queensland was advised of the amendments to the
Tobacco Act, and Clubs Queensland and the Queensland Hotels
Association were advised of the amendments to the DOSA provisions of
the Tobacco Act.
Consistency with legislation of other jurisdictions
The Bill is mostly specific to the State of Queensland and, with the
exception of the matters outlined below, the extent to which it is uniform
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Health Legislation Amendment Bill 2011
with or complementary to the Commonwealth or another state is not
relevant in this context.
· Food business rating scheme
Amendments to the Food Act will establish a framework for local
governments to implement a food business rating scheme for licensed food
businesses in their area. The development of a national framework for a
food business rating scheme, for adoption by jurisdictions, will continue at
a national level. However, the introduction of the Bill will provide
Queensland with a legislative basis for later prescribing the national
framework in advance of the national agenda. This will enable Queensland
to act quickly to prescribe the scheme, in order for interested local
governments to implement a food business rating scheme as soon as
possible after the national framework is agreed upon and approved by the
Australia and New Zealand Food Regulation Ministerial Council.
· Fruit-flavoured and confectionary-flavoured cigarettes
The introduction of amendments to the Tobacco Act will align Queensland
with all other jurisdictions, except Western Australia, who have already
introduced a ban on fruit-flavoured and confectionary-flavoured cigarettes.
· Health practitioner complaint investigations
The amendments to the HQCC Act to clarify the ability of the Health
Quality and Complaints Commission to share information with the national
health practitioner registration boards in relation to complaint
investigations, will ensure consistency with the Health Practitioner
Regulation National Law, which gives effect to the Council of Australian
Governments' Intergovernmental Agreement for a National Registration
and Accreditation Scheme for the Health Professions.
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Health Legislation Amendment Bill 2011
Notes on provisions
Part 1 Preliminary
Short Title
Clause 1 provides that, when enacted, the short title of the Act will be the
Health Legislation Amendment Act 2011.
Commencement
Clause 2 provides for commencement of the Act.
To facilitate implementation of some of the amendments, the following
sections will commence on a day to be fixed by proclamation:
· sections 5 and 14, and section 18 (to the extent it inserts new
definition food business rating scheme), which relate to the
amendments to the Food Act to provide for the establishment of a
food business rating scheme;
· sections 52 to 63, which relate to the amendments to the Public Health
Act to improve the operation of powers to control the spread of
contagious conditions at schools and child care services; and
· sections 70 to 72, which relate to the amendments to the Tobacco Act
to ban the sale of fruit-flavoured and confectionary-flavoured
cigarettes, to clarify the intent of designated outdoor smoking areas at
licensed premises, and to ban the sale of objects that resemble
smoking products.
The remainder of the Act will commence on Assent.
Part 2 Amendment of Food Act 2006
Act amended
Clause 3 specifies that this Part amends the Food Act 2006.
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Health Legislation Amendment Bill 2011
Amendment of s 14 (Meaning of food standards code)
Clause 4 amends section 14 of the Food Act, which prescribes the meaning
of the term food standards code for the purposes of the Act, and which also
provides for modifications to the Code to ensure consistency with
Queensland's food safety regulatory system. The modifications specify
which parts of the Code are applied with changes and which parts of the
Code are not applied.
Section 14(2)(b) is amended to remove `clause 9 of standard 1.6.2' from,
and to insert `standard 3.3.1' into, the list of parts of the Food Standards
Code that do not apply in Queensland. These amendments reflect that:
· Standard 3.3.1 does not apply in Queensland, because it relies upon
the application of Standard 3.2.1 which is already prescribed in
section 14(2)(b) as not having effect in Queensland; and
· Clause 9 of Standard 1.6.2 was removed from the Code in 2005 and
the reference to this clause in section 14(2)(b) is redundant.
Amendment of s 22 (Provisions that are administered only by
the State)
Clause 5 amends section 22 of the Food Act, which prescribes the
provisions of the Act which are administered only by the State and not by
local governments.
The Bill amends section 22(1) to insert a reference to new section 271H,
which relates to the administering by the State of a new offence about a
local government conducting a food business rating scheme that does not
comply with the prescribed model. This is a consequential amendment
arising from the insertion of new Part 3B under clause 14, which provides
for the establishment of a statewide food business rating scheme that local
governments may choose to implement in their local area, for voluntary
participation by licensed food businesses.
Amendment of s 48 (Meaning of licensable food business)
Clause 6 amends section 48 of the Food Act, which prescribes the meaning
of licensable food business for the purposes of the Act. Section 48(1)(b)
provides a list of examples of food businesses that involve the sale of
unpackaged food by retail, which are considered to be licensable food
businesses. Included in this list is a food business that involves selling
unpackaged food from a vending machine. Section 48(2) lists food
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Health Legislation Amendment Bill 2011
businesses that are not considered to be a licensable food business.
Included in subsection (2)(b) is a business that consists of the processing or
sale of fisheries resources under a buyer licence issued under the Fisheries
Regulation 1995.
Section 48(1)(b) is amended to refer to a food vending machine, rather than
a vending machine in the example referred to above. This is a
consequential amendment that arises from other amendments to capture
food vending machines as mobile premises for licensing purposes and will
ensure consistency with the use of terms in relation to food vending
machines across the Act.
Section 48(2) is amended to omit subsection (b), which refers to a buyer
licence issued under the Fisheries Regulation 1995. This amendment
reflects the repeal of the Fisheries Regulation 1995, which makes this
exemption under the Food Act redundant. Section 48(2)(c) to (l) are
renumbered as section 48(2)(b) to (k) as a consequence of omitting
subsection (b). A consequential amendment is made to section 48(3) to
remove the definition for processing, which was used for omitted section
48(2)(b).
Amendment of s 53 (What the application must state)
Clause 7 amends section 53 of the Food Act, which prescribes what must
be stated in an application for a licence to carry on a licensable food
business. Section 53(1)(e) prescribes the information that must be included
in an application for a business operated from mobile premises. A minor
amendment to this section is required as a result of capturing food vending
machines as mobile premises.
The Bill amends section 53(1)(e) to include information required if the
mobile premise is a food vending machine. New section 53(1)(e)(i)(B)
requires an applicant to state the serial number or other unique identifying
number or mark of the food vending machine on an application. This will
assist with identification of the food vending machine.
Amendment of s 94 (Form of licence)
Clause 8 amends section 94 of the Food Act, which prescribes the form and
content of a licence to carry on a licensable food business issued to a
person under the Act. Section 94(b)(iii) prescribes the information that
must be stated on a licence for a business operated from mobile premises.
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Health Legislation Amendment Bill 2011
A minor amendment to this section is required as a result of capturing food
vending machines as mobile premises.
The Bill amends section 94(b)(iii) to include information required if the
mobile premise is a food vending machine. New section 94(b)(iii)(B)
requires a licence to state the serial number or other unique identifying
number or mark of the food vending machine. This will assist with
identification of the food vending machine. This identifying information is
provided in the application for a licence under the amendment to section 53
made under clause 7.
Amendment of s 134 (Failure to decide application)
Clause 9 amends section 134 of the Food Act, which specifies that failure
by the Chief Executive (Queensland Health) to decide an application for
approval as an auditor under the Act within 30 days after the receipt of the
application is taken to be a decision to refuse to grant the application.
However, this action is subject to section 134(2), which states that the
Chief Executive may require the applicant to provide further information or
a document to support the applicant's information, and to section 134(3),
which states that the Chief Executive is taken to have refused to grant the
application if it is not decided within 30 days after receipt of the further
information or document requested under section 134(2).
The Bill amends section 134(1) to state that the automatic refusal to grant
an application for approval as an auditor within 30 days after the receipt of
the application is also subject to new section 134A. New section 134A
enables an extension of the 30-day time period in certain circumstances
because of the complexity of the matters that need to be considered.
Insertion of new s 134A
Clause 10 inserts new section 134A into the Food Act to provide for an
extension of the 30-day time period for the Chief Executive (Queensland
Health) to decide an application for approval as an auditor under the Act,
by a further 30 days, in certain circumstances. The Chief Executive may
only extend the time period if more time is needed to make a decision about
the application because of the complexity of the matters that need to be
considered (section 134A(1)).
In practice, there are a range of scenarios that may require the extension of
time. For example, if the Chief Executive has requested criminal history
information about the applicant, which is a necessary part of determining
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Health Legislation Amendment Bill 2011
the suitability of a person for approval as an auditor, and has not received
that information from another entity within the 30 days. Ultimately, it is
undesirable for a person's application to be automatically refused if
supporting documentation or other information, such as a criminal history
report, that would otherwise have resulted in the approval of the
application, has not been received within the prescribed period.
Section 134A(2) requires the Chief Executive to give the applicant notice
of the extension of time to consider the application. Although the initial
time period may be extended by a further 30 days, section 134A(3) enables
the applicant and the Chief Executive to agree in writing on a day by which
the application must be decided.
Similar to section 134, under section 134(4), the Chief Executive is taken
to have refused to grant the application if the Chief Executive does not
decide the application by:
· the end of the extended 30-day period (the extended day); or
· the day agreed upon between the Chief Executive and the applicant
(the agreed extended day); or
· the later of the above two days, if both apply.
If automatic refusal occurs, the Chief Executive is required to advise the
applicant of the decision via an information notice (section 134A(5)).
Section 134A(6) provides a meaning for the term final consideration day,
as it applies to the new section.
Amendment of s 136 (Conditions of approval)
Clause 11 amends section 136 of the Food Act, which specifies the
standard conditions of an auditor's approval, including additional
conditions the Chief Executive (Queensland Health) considers appropriate
for the proper conduct of an audit. It is a statutory condition that an
approved auditor must give notice to the Chief Executive (Queensland
Health), of any direct or indirect financial or other interest the auditor has
in a food business that could conflict with the proper performance of the
auditor's functions (section 136(1)(a)). A notice in these circumstances
must be given to the Chief Executive immediately after the auditor
becomes aware of the interest (section 136(2)).
In practice, the ability of an auditor to immediately give a notice to the
Chief Executive of a conflict of interest is unreasonably inflexible, taking
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Health Legislation Amendment Bill 2011
into account legitimate reasons why immediate written notice may be
impractical. For example, at the time of becoming aware of the interest the
auditor may be in a remote location or it may be outside of business hours.
The Bill amends section 136 to provide appropriate flexibility for an
auditor to notify the Chief Executive of a conflict of interest. Subsection
(2) is replaced with a revised requirement that an auditor must, unless the
auditor has a reasonable excuse:
· orally notify the Chief Executive of the interest immediately; and
· give the Chief Executive notice about the interest in the approved form
within 24 hours after becoming aware of the interest.
Amendment of s 265 (Content of registers)
Clause 12 amends section 265 of the Food Act, which prescribes what must
be contained on the register of food businesses required to be kept by the
Chief Executive (Queensland Health) under section 264 of the Act. A
minor amendment to this section is required as a result of capturing food
vending machines as mobile premises.
The Bill amends section 265 to include information required if the mobile
premise is a food vending machine. New section 265(2)(e)(ii) requires the
register to contain the serial number or other unique identifying number or
mark of the food vending machine. This is consistent with other
amendments that require this same information to be stated on an
application for a food business licence and on a licence issued under the
Act.
Amendment of s 271D (Chief Executive may give direction)
Clause 13 amends section 271D of the Food Act, which enables the Chief
Executive (Queensland Health) to give a person responsible for a food
business, a reasonable direction in response to a report by that person of
suspected intentional contamination of food at the business. Currently, the
directions the Chief Executive may give are limited to:
· identifying the source of the contamination or the potentially
contaminated food; or
· preventing or minimising the risk to public health or safety caused by
the potentially contaminated food.
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Health Legislation Amendment Bill 2011
Section 271D does not provide authority for the Chief Executive to require
a food business to undertake appropriate procedures to prevent a recurrence
of the contamination. Specifically, it does not empower the Chief
Executive to give a a direction to comply with the provisions of the national
Food Standards Code in relation to food intended for sale. This is because
local government has the responsibility of enforcing compliance with
section 39(1) of the Food Act, which requires compliance with the Food
Standards Code.
The Bill amends section 271D to enable the Chief Executive, where a
report has been made under section 271B, to direct the responsible person
for the food business to undertake steps to comply with the Food Standards
Code. This will improve the operation and enforcement of these provisions
and minimise the risk to public safety caused by potentially contaminated
food without unduly expanding the Chief Executive's powers or enabling
the imposition of unreasonable requirements on food businesses. Steps
required of a business may include such things as:
· providing protective barriers that minimise the likelihood of
contamination by customers (clause 8(2)(c) of Standard 3.2.2); or
· storing chemicals in a separate area from the food processing area to
prevent the likelihood of food being contaminated (clause 7(1)(b)(i) of
Standard 3.2.2).
Insertion of new ch 11, pt 3B
Clause 14 inserts new Part 3B into Chapter 11 of the Food Act, which deals
with miscellaneous matters relating to food regulation, to provide for the
establishment of a statewide food business rating scheme which local
governments may choose to implement in their local area, for voluntary
participation by licensed food businesses. The new part consists of new
sections 271E, 271F, 271G and 271H.
Section 271E - Purpose of pt 3B and how purpose is achieved
New section 271E prescribes the purpose of Part 3B and how the purpose is
to be achieved. This section is included to help provide clarity about the
purpose of prescribing matters in relation to a food business rating scheme.
The purpose of Part 3B is to enshrine in legislation a consistent way for
local governments to provide information to consumers about compliance
by food businesses with the Food Act and the Food Standards Code, and
with information about food hygiene in premises from which food
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Health Legislation Amendment Bill 2011
businesses are carried on. The way in which this is achieved is by
regulating local governments in relation to the conduct of rating schemes
that provide this information to consumers.
Section 271F - Meaning of food business rating scheme
New section 271F prescribes the meaning of food business rating scheme
to capture the key elements of a rating scheme, which are:
· to assess the compliance by food businesses with the Food Act and
with the Food Standards Code, or with food hygiene in premises from
which food businesses are carried on; and
· to assign a rating to the food business according to the assessed level.
Section 271G - Prescribed requirements for food business rating
schemes
New section 271G prescribes the requirements applying to a food business
rating scheme. The provision states that these requirements will be
prescribed in a regulation.
The requirements to be prescribed in regulation will reflect the national
framework for a food business rating scheme currently being developed by
a working group of the Implementation Sub-Committee (ISC) of the
Australia and New Zealand Food Regulation Ministerial Council
(ANZFRMC).
Section 271H - Offence about conducting food business rating scheme
New section 271H establishes an offence for a local government to conduct
a food business rating scheme that does not comply with the scheme
prescribed in regulation under new section 271G. A penalty of 1,000
penalty units applies to this offence. To remove ambiguity, the term
conduct is defined to encapsulate the actions a local government may take
that would constitute non-compliance.
As the scheme may be indicative of the level of compliance of a licensed
food business with the Food Act, the penalty is proportionate to the offence
and is consistent with other penalties in the Act in relation to compliance
with food standards and hygiene.
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Health Legislation Amendment Bill 2011
Amendment of ch 12, pt 2, hdg (Transitional provisions)
Clause 15 amends the heading for Chapter 12, Part 2, which provides for
the transitional provisions arising from the repeal of the Food Act 1981 and
commencement of the Food Act 2006 (Act No. 3 of 2006) on 1 July 2006.
The heading is amended to specify that Part 2 relates only to the original
transitional provisions for Act No.3 of 2006, so that a new Part 3 can be
inserted for transitional provisions that apply to the Health Legislation
Amendment Act 2011 as a result of capturing food vending machines as
mobile premises for licensing purposes.
Insertion of new ch 12, pt 3
Clause 16 inserts new Part 3 into Chapter 12 to provide for transitional
provisions that relate to amendments being made in this Bill as a result of
capturing food vending machines as mobile premises. Part 3 consists of
new sections 299, 300, 301 and 302.
Section 299 - Definitions for Part 3
New section 299 provides for definitions used in the new Part and provides
the meaning of commencement and relevant licence.
The term commencement is defined to mean the commencement of new
Part 3 and is included to differentiate from the meaning of the same term in
Part 2, which refers to commencement of that part. In accordance with
clause 2, which provides for commencement of the Bill, new Part 3 will
commence on assent. This will coincide with the commencement of other
provisions in the Bill that relate to amendments to capture food vending
machines as mobile premises for licensing purposes.
The term relevant licence refers to a licence for a food business that is
carried on from fixed or temporary premises, where the premise is a food
vending machine, on the commencement of Part 3. A relevant licence is
therefore referring to the existing regime for a licence for a food vending
machine.
Section 300 - Existing relevant licence
New section 300 provides for the transition of an existing licence for a food
vending machine (i.e. an existing relevant licence) from being a fixed or
temporary premises licence to being a mobile premises licence.
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Health Legislation Amendment Bill 2011
Section 300(1) specifies that section 300 applies to an existing licence (i.e.
a relevant licence) that was in force immediately before commencement of
new Part 3.
Section 300(2) specifies that, on and from the commencement of new Part
3 (which will coincide with commencement of other provisions of the Bill
relating to food vending machines on assent), a licence for a vending
machine that has been issued as if the premise was a fixed or temporary
premise is taken to be a licence issued as if the premise was a mobile
premise. An existing licence will continue in force with any conditions to
which the licence was subject to immediately before commencement.
Amendments to sections 94 and 265 require the serial number or other
identifying number or mark of a food vending machine to be stated on the
licence (section 94) and included on the register of food businesses kept by
the Chief Executive, Queensland Health (section 265). However, to reduce
the burden on local governments and licensees, upon commencement of
these provisions an existing licence for a food vending machine is taken to
comply with these requirements.
Providing that existing licences automatically comply with amended
sections 94 and 265 is not deemed to present a risk to any person, as there
are only a small number of food vending machines in operation throughout
the State. In addition, section 300(3) provides that this deeming provision
is only temporary.
Section 300(3) specifies that subsection (2) ceases to apply when the
existing licence is first renewed after the commencement date. Therefore,
upon the first renewal of the licence, local governments and existing
licensees will need to comply with sections 94 and 265, by ensuring the
serial number or other identifying mark of the food vending machine is
provided for inclusion on the licence and register of food businesses.
Section 301 - Pending applications for relevant licence
Section 301 provides for the transition of an existing application (i.e. a
pending application) for a licence for a food vending machine that was
made, but undecided, prior to commencement of new Part 3.
Section 301(1) specifies that section 301 applies to an application for a
licence for a food vending machine (i.e. a relevant licence) that was made,
but not decided, before commencement of new Part 3.
Section 301(2) specifies that, on and from the commencement of new Part
3, the application is taken to be an application for a food vending machine
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Health Legislation Amendment Bill 2011
(i.e. a licence for a food business carried on from mobile premises that are a
food vending machine).
Section 301(3) specifies that the application is not invalid if it does not
comply with section 53(1)(e). Section 53 is amended under this Bill to
specify that an application for a food vending machine is to include the
serial number or other identifying number or mark of the vending machine.
If the serial number or other identifying mark of the food vending machine
information is not provided on the application, section 301(3) specifies that
this will not invalidate the application. However, a local government may,
under section 59 of the Food Act, require the applicant to give this
information to the local government. Section 59 of the Food Act enables a
local government to make further inquiries before deciding an application.
This may include the local government, by notice given to the applicant,
requiring the applicant to give the local government further information or
a document the local government reasonably requires to decide the
application. Therefore, the local government can use this power to request
the applicant to provide the serial number or other identifying number or
mark of the vending machine, in order to comply with amended sections
53, 94 and 265.
Section 302 - Pending applications for renewal, restoration or
amendment of relevant licence
Section 302 provides for the transition of an existing application (i.e. a
pending application) for the renewal, restoration or amendment of an
existing licence for a food vending machine (i.e. a relevant licence) that
was made, but undecided, prior to commencement of new Part 3.
Section 302(1) specifies that section 302 applies to an application for the
renewal, restoration or amendment of an existing licence for a food
vending machine (i.e. a relevant licence) that was made, but not decided,
before commencement of new Part 3.
Section 302(2) specifies that, on and from the commencement of new Part
3, the application is taken to be an application for the renewal, restoration
or amendment of an existing licence for a food vending machine (i.e. a
food business carried on from mobile premises that are a food vending
machine).
The renewal, restoration or amendment of a licence may require the local
government to reissue the licence. Therefore, this will require the local
government to comply with amended section 94 of the Food Act, which
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Health Legislation Amendment Bill 2011
requires a licence to state the serial number or other identifying number or
mark of the machine. If this information has not previously been provided,
a local government may, under section 75 of the Food Act, require the
applicant to give this information to the local government.
Section 75 of the Food Act enables a local government to make further
inquiries before deciding an application for the renewal, restoration or
amendment of a licence. This may include the local government, by notice
given to the applicant, requiring the applicant to give the local government
further information or a document the local government reasonably
requires to decide the application. Therefore, the local government can use
this power to request the applicant to provide the serial number or other
identifying number or mark of the vending machine, in order to comply
with amended sections 94 and 265.
Amendment of sch 2 (Changes to food standards code)
Clause 17 amends Schedule 2 of the Food Act, which outlines the
amendments or modifications made to the Food Standards Code, as they
are applied in Queensland.
Subsection (1) of this clause inserts a note in Schedule 2, item 2, in relation
to the definition of appropriate enforcement agency as it applies in the
Queensland context. The note specifies that section 23 of the Food Act
outlines the provisions of the Act that are administered only by local
governments. This is to clarify the link between the current definition of
appropriate enforcement agency, which refers to local government areas,
and the provision under the Act that provides for enforcement of certain
matters by local governments, and not the state government.
Subsection (2) of this clause replaces the current definition of food
premises in Schedule 2, item 3 to ensure the Food Standards Code applies
to food vending machines, as a result of capturing food vending machines
as mobile premises for licensing purposes. The Food Standards Code
classifies food vending machines as equipment rather than premises.
However, for licensing purposes in Queensland, a food vending machine is
considered to be premises (currently fixed or temporary premises, but
under amendments made in this Bill, they will be considered mobile
premises).
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Health Legislation Amendment Bill 2011
Amendment of sch 3 (Dictionary)
Clause 18 amends Schedule 3 of the Food Act, to update or insert
definitions for application throughout the Act.
Subsection (1) of this clause omits the current definitions for
commencement and mobile premises. These definitions are replaced with
new definitions as a result of capturing food vending machines as mobile
premises.
Subsection (2) of this clause inserts new or modified definitions for
commencement, food business rating scheme, food vending machine,
mobile premises and relevant licence.
Definition of `commencement'
The current definition of commencement, which was omitted in subsection
(1) of this clause, is replaced to include a reference to the two sets of
transitional provisions in the Food Act in section 280 and new section 299.
Definition of `food business rating scheme'
A definition of food business rating scheme is inserted to refer to the
meaning of this term as provided for in new section 271F.
Definition of `food vending machine'
A definition of food vending machine is inserted to mean a machine or
device operated by money, token, debit card or credit card and used, or
intended for use, for the sale of food. This is a consequential amendment
as a result of capturing food vending machines as mobile premises
throughout the Food Act.
Definition of `mobile premises'
The current definition of mobile premises, which was omitted in subsection
(1) of this clause, is replaced to also mean a food vending machine. This is
a consequential amendment as a result of capturing food vending machines
as mobile premises throughout the Food Act.
Definition of `relevant licence'
A definition of relevant licence is inserted to refer to the meaning of this
term as provided for in section 299.
Definition of `premises'
Subsection (3) of this clause amends the current definition for premises to
include new subsection (e) which refers to a food vending machine. This
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Health Legislation Amendment Bill 2011
captures food vending machines as premises under the Act, which means
standards and hygiene that apply to other premises will also apply to food
vending machines, as appropriate.
Part 3 Amendment of Health Act 1937
Act amended
Clause 19 specifies that this Part amends the Health Act 1937.
Amendment of s 132 (Regulations about drugs, articles,
substances, appliances etc.)
Clause 20 amends section 132 of the Health Act, which prescribes the
matters about which a regulation may be made under the Act.
Amendments are made to ensure that terms used in the Act are up-to-date
and accurately reflect the purpose of the Act.
A comprehensive, staged review of the Health Act commenced in 1994 in
response to concerns that, due to its age and the breadth of areas it covered,
the Act was becoming increasingly outdated and unwieldy, causing
significant operational difficulties. As each stage of the review has been
completed, stand-alone primary and subordinate legislation have been
made to modernise and replace selected components of the Health Act,
including the Public Health Act 2005 and the Private Health Facilities Act
1999.
The remaining provisions of the Health Act, together with the Health
(Drugs and Poisons) Regulation 1996 and the Health Regulation 1996,
relate primarily the regulation of drugs, poisons and therapeutic goods.
Section 132(zd) of the Health Act specifies that a regulation may be made
about the conditions on which licences and registrations may be granted,
suspended, or revoked. Section 132(ze) of the Health Act provides for a
regulation to be made to prescribe the fees to be paid for:
· licences and registration (including annual renewal);
· applications for approval or registration as a public analyst or public
expert; and
· the analysis of any drug or article by an analyst.
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Health Legislation Amendment Bill 2011
The head of power for licences and registrations under the Act have been
repealed and licences, in relation to the regulation of drugs, poisons and
therapeutic goods, are now covered under the meaning of endorsements. In
accordance with section 136 of the Health Act, endorsement is defined by
regulation in the Health (Drugs and Poisons) Regulation 1996 as meaning
an authority, an approval, a drug licence, a wholesale representative
licence, a poison licence, a cyanide permit, or a strychnine permit.
Therefore, the Bill amends section 132(zd) and 132(ze) to provide a more
accurate head of power for a regulation to be made in relation to
endorsements. Section 132(zd) is amended to replace the outdated
reference to licences and registrations with a reference to endorsements.
Section 132(ze) is omitted and replaced with a more appropriate head of
power for prescribing fees payable for:
· an application for, or renewal of, an endorsement;
· an application for an amendment of, or the repeal of a decision to
suspend or cancel, an endorsement; or
· the analysis of a drug or article by a State analyst.
In relation to the third item - analysis of a drug or article by a State analyst
- this ensures consistency of terms across the Act, as the Health Act now
only refers to a State analyst.
A consequential amendment is made to the sub-heading for section 132(ze)
to more accurately correspond with the substance of section 132(ze), which
is to provide authority for a regulation to prescribe fees payable under the
Act.
Part 4 Amendment of Health Quality
and Complaints Commission Act
2006
Act amended
Clause 21 specifies that this Part amends the Health Quality and
Complaints Commission Act 2006 (the HQCC Act).
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Health Legislation Amendment Bill 2011
Amendment of s 2 (Commencement)
Clause 22 amends section 2 which details how the Act commenced. The
amendment omits subsection (2) in accordance with current drafting
practices.
Amendment of ch 5, hdg (Health complaints)
Clause 23 provides for a note to be included at the beginning of Chapter 5,
which sets out a range of provisions in relation to the making and handling
of a health complaint. The various parts under this chapter define what is a
health complaint for the purposes of the HQCC Act (i.e. a health quality
complaint or a health service complaint), who may make a health
complaint, how to make a health complaint, and the actions that may be
taken by the Health Quality and Complaints Commission (the
Commission) in relation to a health complaint.
The note has been included to alert the reader to the requirements of the
Health Practitioner Regulation National Law Act 2009 (the National Law),
particularly section 150. The Commission and a registration board
established under the National Law (a National Board) have obligations in
relation to the management of:
· a health complaint made to the Commission under the HQCC Act
about a health practitioner registered under the National Law (a
nationally registered provider); and
· a notification made to a National Board about a nationally registered
provider under the National Law that also provides a ground for a
health complaint to the Commission.
Section 150 of the National Law details how the Commission and a
National Board must work together should a notification or complaint be
made about a nationally registered provider.
If a notification made under the National Law provides a ground for a
health complaint under the HQCC Act, the National Board that received
the notification must:
· notify the Commission about the notification, as soon as practicable;
and
· give the Commission a copy of the notification and any other
information relevant to the notification.
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Health Legislation Amendment Bill 2011
Similarly, if a health complaint is made under the HQCC Act concerning a
nationally registered provider, the Commission must:
· notify the relevant National Board as soon as practicable; and
· give the National Board a copy of the complaint and any other
information relevant to the complaint.
A National Board and the Commission must then consult each other in
order to determine how a notification or complaint is to be managed - that
is, which body is to deal with the matter (in whole or part) and how that
body proposes to deal with the matter. If agreement on the proposed course
of action cannot be reached, the more serious action proposed by either the
Board or Commission must be taken.
Section 150 also requires a National Board and the Commission to
exchange information as a result of any action taken to deal with a matter.
If action is taken at a national level, the relevant National Board must
advise the Commission about the action taken in relation to concerns raised
about the health, conduct or performance of the practitioner. On the other
hand, if an assessment, investigation, conciliation or other action taken by
the Commission raises issues about the health, conduct or performance of a
nationally registered practitioner, the Commission must advise the relevant
National Board about these issues and any action taken to deal with these
issues.
Insertion of new s 37A
Clause 24 inserts a new section 37A to clarify how the Commission may
deal with a notification made under the National Law, which also provides
a ground for a health complaint (i.e. a health quality complaint or a health
service complaint) under the HQCC Act.
A health quality complaint may be made about the quality of a health
service, problems affecting the provision of services to more than one
healthcare consumer or the failure of a provider to comply with their duty
under the HQCC Act to establish, maintain and implement reasonable
processes to improve the quality of health services they provide. Anyone
may make a health quality complaint at any time.
A health service complaint may be made about a provider (an individual
health professional) or an entity (such as a hospital or clinic). Complaints
may, for example, be made that a provider acted unreasonably in providing
a health service, a provider shared confidential information without
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Health Legislation Amendment Bill 2011
permission or the provider's behaviour was inappropriate. This type of
complaint may be made by health consumers, a person acting on behalf of
a health consumer, or the Minister for Health. Health service complaints
must be made within one year of an incident occurring, or within one year
of the person making the complaint becoming aware of the matter.
If a notification is referred to the Commission under section 150 of the
National Law, the Commission may deal with the notification as if it were a
health quality complaint or health service complaint made under the
HQCC Act. Although it should be noted that the HQCC Act enables the
Commission to deal with a health quality complaint, or a matter arising in
the course of the Commission dealing with a health quality complaint, as a
health service complaint.
Once it is agreed that the Commission is to deal with a notification or
complaint, the Commission will be able to use the powers under the HQCC
Act to deal with the matter, including facilitating early resolution of the
matter, conducting an assessment of the matter, conciliating the matter,
investigating the matter, holding an inquiry into the matter, referring the
complaint to a more appropriate body to deal with any issues raised during
the course of an assessment or investigation, or deciding not to take any
action on the matter (e.g. if it was found that the complaint was frivolous,
vexatious or trivial).
Insertion of new ch 5, pt 2A
Clause 25 inserts a new part 2A in chapter 5, comprised of sections 49A to
and 49E, to complement the processes under the National Law (section
149), whereby a National Board must conduct a preliminary assessment to
decide whether a notification:
· relates to a person who is a health practitioner or a student registered
by the Board; and
· relates to a matter that is a ground for notification under the National
Law; and
· could also be made to a health complaints entity.
New section 49A specifies that part 2A applies to a health complaint (i.e. a
health quality complaint or health service complaint) about a nationally
registered provider. As explained above, such a complaint may be referred
to the Commission as a result of:
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Health Legislation Amendment Bill 2011
· a health complaint made to the Commission about a nationally
registered provider; or
· a notification made to a National Board about a nationally registered
provider that also provides a ground for a health complaint to the
Commission.
New section 49B states that the Commission must immediately conduct a
preliminary assessment of a health complaint and consider:
· whether the health complaint is a health quality complaint or health
service complaint;
· if the complaint is a health service complaint, whether the complaint
may be able to resolve their concerns directly with the provider;
· whether the Commission could help to facilitate the resolution of a
health complaint under the new section 49E;
· whether it is more appropriate for a National Board to deal with the
health complaint;
· whether another entity may be able to investigate or take other
appropriate action about the health complaint.
This section ensures the Commission has the necessary authority to
conduct a preliminary assessment of a matter to help inform their
discussions with a National Board, as required by section 150 of the
National Law, about how a complaint or notification concerning a
nationally registered provider should be managed. Consideration of these
matters will inform their discussions with a National Board about what
complaint resolution mechanisms under the HQCC Act may be appropriate
to deal with a matter, or if it may be more appropriate for the Board or
another entity to deal with a matter (e.g. Queensland's Crime and
Misconduct Commission).
However, the Commission is not required to start a preliminary assessment
until it is provided with all relevant material. In relation to a health
complaint arising from a notification under the National Law, subsection
49B(2) states that the Commission need not conduct the preliminary
assessment until the relevant National Board has given the Commission a
copy of the notification and any other information relevant to the
notification.
Section 49B also clarifies that a preliminary assessment is subject to
section 66 of the HQCC Act and also to (new) section 49C. Section 66
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Health Legislation Amendment Bill 2011
enables the Commission to immediately refer a health service complaint
about a registered provider to the relevant Registration Board (i.e. state or
national). Such referrals may be made in the public interest, for example, if
the Commission considers that the behaviour of a registered provider has
the potential to place health consumers at risk of serious harm. Under these
circumstances, rather than commencing or continuing with a preliminary
assessment, the Commission may determine that it is more appropriate to
immediately refer the complaint to a Board (e.g. so that the Board could
instigate the necessary processes to suspend the practitioner's registration).
New section 49C, which applies to a health complaint made under the
HQCC Act, states that the Commission must not start a preliminary
assessment until:
· the Commission is satisfied that the complainant is eligible to make
the health service complaint
· if the complaint is made orally, that the complainant has confirmed the
complaint in writing or the Commission decides that there is a good
reason this not necessary
· the complainant gives the Commission their name, address and other
information the Commission requires in relation to the complainant's
identity or the Commission decides to accept the complaint in the
public interest
· the complainant complies with any request by the Commission for
further information or for the further information or complaint to be
verified by oath or statutory declaration.
The new section 49C has been modelled on existing provisions within the
HQCC Act (e.g. see sections 53 and 64) that ensure the Commission is
provided with all necessary information that may be requested by the
Commission under division 3, part 2 of Chapter 5 in relation to the making
of a health complaint.
New section 49D clarifies what actions the Commission may take
following the conduct of a preliminary assessment and consultations with
the relevant National Board under section 150 of the National Law. Such
actions include:
· attempting to resolve the health complaint under new section 49E
discussed below
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Health Legislation Amendment Bill 2011
· referring the complaint to another entity that the Commission
considers is able to investigate or take other appropriate action about
the complaint
· taking action under part 3 of chapter 5 to deal with a health quality
complaint
· taking action under part 4 of chapter 5 to deal with a health service
complaint
· deciding not to take action about the health complaint.
The circumstances under which the Commission may decide not to take
action have been modelled on existing provisions within the HQCC Act. In
relation to a health quality complaint, the Commission may decide that no
action is warranted or no action needs to be taken as the complaint is being
dealt with by a National Board. In relation to a health service complaint,
the Commission may decide not to take action having regard to:
· section 63 which sets out the circumstances when the Commission
must decide not to take action on a health service complaint. For
example, if it is considered that the complaint: is frivolous, vexatious
or trivial; is misconceived or lacking in substance; or has been
adequately dealt with by the Commission, a registration board or
another public authority.
· section 64 which sets out the circumstances when the Commission
may decide not to take action on a health service complaint. For
example, if the complaint has been resolved since it was made; or the
health consumer has commenced a civil proceeding about the matter
and a court has begun to hear it, or the matter has been referred to an
alternative dispute resolution process under the Uniform Civil
Procedure Rules 1999.
· section 65 which specifies that the Commission may decide not to
take action if a complainant withdraws a health service complaint.
If it is decided that the Commission is not to take any action on a health
complaint, subsection 49D(3) requires that as soon as practicable after the
making the decision, the Commission must notify the complainant and
explain the Commission's decision.
Section 49E enables the Commission to facilitate the early resolution of a
health complaint concerning a nationally registered provider subject to this
course of action being agreed to by the relevant National Board under
section 150 of the National Law.
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Health Legislation Amendment Bill 2011
One of the key objects of the Commission is to facilitate the timely
resolution of complaints. Consequently, when a person contacts the
Commission, the Commission will always consider if an issue can be
resolved through direct resolution between a health consumer and
healthcare provider; or whether the Commission may be able to facilitate
early resolution of a complaint.
It is envisaged that some complaints about a nationally registered provider
may be able to resolved in a timely fashion (e.g. if a clear explanation is
provided that addresses a consumer's concerns) and that it would be
appropriate for the Commission to facilitate this process. Consequently,
section 49E empowers the Commission to take the action it considers
necessary to facilitate the resolution of a health complaint. However, the
Commission must cease to act under this section, if it becomes apparent
that early resolution is not possible or that 30 days have lapsed since receipt
of the complaint by the Commission.
If early resolution is not successful, dependent on the agreement reached
between the Commission and a National Board under section 150, the
Commission may continue to deal with the matter under the HQCC Act or
the matter may be dealt with by the Board under the National Law. As
detailed in new section 49D, the Commission may deal with the matter as a
health quality complaint under part 3 of chapter 5 or a health service
complaint under part 4 of chapter 5.
Amendment of s 50 (How Commission must deal with a health
quality complaint)
Clause 26 amends section 50, which requires the Commission to deal with
a health quality complaint in a way that is consistent with protecting the
public and improving the quality of health services.
A new subsection (4) is to be inserted to clarify that as soon as practicable
after making a decision about how the Commission will deal with a health
quality complaint, the Commission must notify the complainant and
explain the Commission's decision. Under subsection 50(2) the
Commission may deal with a health quality complaint by doing any or all
of the following:
· seek information from a provider, user, the complainant or anyone
else
· refer the complaint to a registration board, if the complaint is about a
registered provider and the Commission considers the provider may
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Health Legislation Amendment Bill 2011
have acted in a way that would provide a ground for disciplinary
action against the provider under the Health Practitioners
(Professional Standards) Act 1999 or the National Law
· refer the complaint to another entity that the Commission considers is
able to investigate or take other appropriate action about the complaint
· investigate the complaint under chapter 7 of the Act
· inquire into the complaint under chapter 8 of the Act.
A new subsection (5) is to be inserted to also specify that if the
Commission decides no action is warranted, the Commission must notify
the complainant and explain the Commission's decision.
Amendment of s 52 (Early resolution)
Clause 27 amends section 52, which provides for the early resolution of a
health service complaint, if the Commission considers early resolution is
possible and the complainant agrees. In such circumstances the
Commission has up to 30 days to take the action it considers reasonable to
facilitate the resolution of the complaint, before it must commence an
assessment of the complaint.
Section 52 is to be amended as a consequence of the new section 49E,
which providers for the early resolution of health complaints about
nationally registered providers. The amendment replaces the reference to
section 53 with a reference to subsection 53(1), to clarify that the
Commission will only be able to facilitate early resolution of a health
service complaint that does not concern a nationally registered provider
under section 52.
As discussed above, early resolution of a complaint concerning a nationally
registered provider may be attempted under the new section 49E. This
section enables early resolution to be attempted at an earlier point in the
complaint handling process given that the Commission and National
Boards are required to work together to manage notifications or
complaints about a nationally registered providers.
As a consequence of a preliminary assessment and consultations with the
relevant National Board it may be decided that a notification or complaint
concerning a nationally registered provider should initially be managed by
the Commission. As a first step it may be agreed that the Commission
should attempt to facilitate resolution of the complaint under the new
section 49E. However, if this was not successful, it is possible that the
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Health Legislation Amendment Bill 2011
matter may then be dealt with by either the Commission under the HQCC
Act or the Board under the National Law.
Amendment of s 53 (Commission to immediately assess each
health service complaint)
Clause 28 amends section 53, which specifies that the Commission must
immediately assess a health service complaint, unless the Commission has
taken action to facilitate the early resolution of a complaint under section
52.
Section 53 is to be amended as a consequence of the insertion of the new
part 2A to provide for the conduct of a preliminary assessment and early
resolution of a health complaint about a nationally registered provider. The
new part 2A has been inserted to enable the Commission to comply with
their obligations under section 150 of the National Law and therefore work
collaboratively with a National Board to deal with a complaint or
notification concerning a nationally registered provider.
As outlined above, it may be decided that a notification or complaint
concerning a nationally registered provider should be managed by the
Commission. As a first step it may be agreed that the Commission attempt
to facilitate resolution of the complaint under the new section 49E.
However, if this was not successful, then the Commission may need to
utilise the complaint handling processes under the HQCC Act to deal with
the matter.
Should the Commission be required to deal with the matter as a health
service complaint, the Commission will need to assess the complaint as
provided for in division 2 of part 4. The information obtained during the
assessment (e.g. inviting submissions from the complainant and provider)
will then inform the Commission's decision as to what further action it
would be appropriate for the Commission to take on the matter. As detailed
in section 61 of the HQCC Act, if the Commission accepts a health service
complaint, the Commission may conciliate or investigate the complaint or
refer the complaint to another entity that may be better placed to investigate
or take action about the matter. It should be noted, however, that the
Commission may attempt to resolve a health service complaint during the
assessment phase should new information come to light that indicates that
this may be appropriate. Section 71 of the HQCC Act clearly states that the
Commission may attempt, at any time, to resolve a health service
complaint in whatever lawful way it considers appropriate.
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Health Legislation Amendment Bill 2011
Amendment of s 54 (Notice of decision to assess health service
complaint)
Clause 29 amends section 54 which specifies that the Commission must, as
soon as practicable, and within 14 days of beginning the assessment of a
complaint, notify the complainant, the provider to whom the complaint
relates, and the provider's registration board that the complaint is being
assessed.
As a consequence of the enactment of the National Law, an amendment is
required to limit the application of section 54 to providers who are
registered with one of the four State Boards - the Dental Technicians
Registration Act 2001, Medical Radiation Technologists Registration Act
2001, Occupational Therapists Registration Act 2001 or the Speech
Pathologists Registration Act 2001.
As currently occurs, if a complaint is made about a provider who is
registered with one of these boards, the Commission must notify the
relevant board that it is assessing a complaint against the provider.
However, if a complaint is made about a nationally registered provider, the
Commission will notify the relevant National Board about the complaint in
accordance with the requirements of section 150 of the National Law.
Amendment of s 57 (Consultation with registration board)
Clause 30 amends section 57, which requires the Commission to consult
with the relevant registration board about a health service complaint about
a registered provider.
As a consequence of the enactment of the National Law, an amendment is
required to limit the application of section 57 to providers who are
registered with one of the four state-based registration boards - the Dental
Technicians Registration Act 2001, Medical Radiation Technologists
Registration Act 2001, Occupational Therapists Registration Act 2001 or
the Speech Pathologists Registration Act 2001. As currently occurs, if a
health service complaint has been made about a provider who is registered
with one of these boards, the Commission must consult the relevant board
before a decision is made to accept the complaint for action or that no
action will be taken (e.g. the complaint is vexatious, lacking in substance or
has been adequately dealt with by commission or another authority).
If a complaint is made against a provider registered under the national
registration and accreditation scheme, consultation between the
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Health Legislation Amendment Bill 2011
Commission and the relevant national body will be undertaken in
accordance with the requirements of section 150 of the National Law.
Amendment of s 64 (When Commission may decide not to take
action)
Clause 31 amends section 64, which sets out some of the circumstances
whereby the Commission may decide not to take action on a health service
complaint. They are: the complainant fails to comply with the
Commission's request to confirm the complaint in writing; provide more
information about their identity; provide more information about their
complaint or verify the complaint or information by oath or statutory
declaration; the complaint has been resolved since it was made; or the user
has commenced a civil proceeding about the matter and a court has begun
to hear it, or the matter has been referred to an alternative dispute
resolution process under the Uniform Civil Procedure Rules 1999.
This section is to be amended to also specify that the Commission may
decide not to take action about a health service complaint, if a National
Board or adjudication body under the National Law is dealing with the
complaint. This may occur if a health service complaint concerning a
nationally registered provider is made to the Commission but as a result of
consultations with the relevant National Board, it is decided under section
150 of the National Law that the Board is the more appropriate body to
deal with the matter. In the event that action is taken against the registered
provider under the National Law, the Commission will be advised of any
issues raised about the health, conduct or performance of the registered
provider and the action taken in relation to these issues.
Amendment of s 65 (Withdrawal of complaint)
Clause 32 amends section 65, which specifies that the Commission may
decide not to take action if a complainant withdraws a health service
complaint. However, the withdrawal of a complaint does not prevent the
Commission from assessing the complaint, referring the complaint to
another entity, investigating the complaint or conducting an inquiry in
relation to the complaint.
Section 65 is to be amended as a consequence of the inclusion of a
preliminary assessment process for complaints concerning nationally
registered providers. That is, the withdrawal of a complaint will not
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Health Legislation Amendment Bill 2011
prevent the Commission from conducting a preliminary assessment of a
health service complaint.
The ability of the Commission to conduct a preliminary assessment,
although a complaint has been withdrawn, is consistent with the
Commission's obligations to act in the public interest.
Amendment of s 68 (Registration board may delegate function
under s 57)
Clause 33 amends section 68, which provides that either a State or National
Board may delegate a function or power of the board under section 57
(Consultation with registration board) to specified persons. Under section
57, if the Commission consults a registration board about a health service
complaint concerning a registered health practitioner, the board is required
to provide the Commission with comments, which may include whether or
not the complaint warrants action by the board.
The reference to a registration board established under the National Law in
subsection 68(1)(d) is to be omitted. As explained above, the need to
consult with a registration board under section 57 is to be limited to the
four State Boards - the Dental Technicians Registration Act 2001, Medical
Radiation Technologists Registration Act 2001, Occupational Therapists
Registration Act 2001 or the Speech Pathologists Registration Act 2001.
Consultations between the Commission and National Boards will be
carried out in accordance with the requirements of section 150 of the
National Law.
The amendment renumbers subsection (1) (c) (i) and (ii) as subsection (1)
(c) and (1) (d) respectively. As currently provided for by the HQCC Act, a
State Board may delegate a function of the Board under section 57 to either
the executive officer of the Office of Health Practitioner Registration
Boards appointed under the Health Practitioner Registration Boards
(Administration) Act 1999 or with the executive officer's
agreement--another member of the staff of the Office of Health
Practitioner Registration Boards.
In addition, the amendment provides for the definition of `State health law'
in subsection 68(2) to be omitted. This definition is redundant as the
omission of subsection 68(1)(d) means that there is no need to make a
distinction between State and National Boards for the purposes of section
68.
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Health Legislation Amendment Bill 2011
Amendment of s 87 (Referral to another entity)
Clause 34 amends section 87, which enables the Commission to refer a
matter raised in the course of an investigation to another entity that may be
better placed to investigate or take action about the matter. Such an entity
may include a National Board.
It may be appropriate for the Commission to refer a matter to a National
Board if, for example, the Commission was investigating a complaint about
the quality of health services at a hospital and concerns were raised about
the professional conduct of a nationally registered practitioner. However,
as a consequence of the enactment of the National Law, the Commission
must not only act in accordance with the requirements of section 87, but
also with section 150 of the National Law.
Consequently, section 87 is to be amended to include a note to clarify that,
as required by section 150 of the National Law, if an investigation
conducted by the Commission raises issues about the health, conduct or
performance of a nationally registered provider, the Commission must
notify the relevant National Board. Such a notice must include sufficient
information in order to identify the provider, details of the issues raised
about the health, conduct or performance of the provider, or details of
action taken by the Commission in response to the health, conduct or
performance issues raised about the provider.
Amendment of s 89 (Commission's powers not affected by
reference)
Clause 35 amends section 89, which provides that the Commission's
powers to investigate a matter are not affected by referral of the matter to
another entity under section 87.
As a consequence of the enactment of the National Law, section 89 is to be
amended to clarify that the Commission's powers to investigate a matter
are not affected by the requirement that it must advise a National Board if
an investigation being conducted by the Commission raises issues about
the health, conduct or performance of a nationally registered provider.
Section 89 enables the Commission to continue with an investigation, even
though a matter raised during the course of an investigation is referred to
another entity (including a National Board) that has the prerequisite
statutory authority to investigate or otherwise act on the matter. This
provision, for example, enables the Commission to continue with a
systemic investigation into the quality of a health service, despite the fact
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Health Legislation Amendment Bill 2011
that the Commission may have advised a National Board about the
unprofessional conduct or unsatisfactory professional performance of a
provider registered by the Board.
The amendment also clarifies, that as required by section 150, the
Commission must notify a National Board if an investigation by the
Commission raises issues about the health, conduct or performance of a
nationally registered provider.
Amendment of s 149 (Assistant Commissioners)
Clause 36 amends section 149, which provides that there are to be a
minimum of 5 and a maximum of 7 Health Quality and Complaints
Assistant Commissioners.
Currently, this section specifies at least one of the assistant Commissioners
must be a lawyer, one must be a person who is a medical practitioner with
clinical experience, at least one must be a nurse or midwife, one must be
an allied health professional, and one must have skills and experience in
consumer issues.
Subsection 149(4) sets out a number of definitions for the purposes of
section 149, including for example, who may be considered to be an allied
health professional, medical practitioner, midwife, registered nurse, or
registered provider. The definition of `health practitioner registration Act'
needs to be amended, as a consequence of the term `State health law' being
defined for the purposes of the Act to collectively refer to the four Acts
providing for the registration of certain health practitioners at a state level.
Amendment of s 164 (Other directions by Minister)
Clause 37 amends section 164, which sets out what directions the Minister
for Health may give to the Commission, including the provision of a report
on a specified matter; investigating a health complaint or systemic issues
relating to the quality of health services; and intervening in disciplinary
proceedings against a registered provider.
As a consequence of the insertion of the new section 190A, subsection 164
(1) (d) is to be amended. That is, to clarify that the Minister may give a
written direction to the Commission to intervene in disciplinary
proceedings against a registered provider under section 190 (which deals
with disciplinary proceedings concerning state registered health
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Health Legislation Amendment Bill 2011
practitioners) or section 190A (which deals with disciplinary proceedings
concerning nationally registered providers).
Amendment of s 176 (Status)
Clause 38 amends section 176, which clarifies that the Office of the Health
Quality and Complaints Commission is not a statutory body for the
Financial Administration and Audit Act 1977 or the Statutory Bodies
Financial Arrangements Act 1982.
This section is to be amended to correct an error - the year in the title of the
Statutory Bodies Financial Arrangements Act is cited as being 1992 rather
than 1982.
Amendment of s 188 (Information from registration board)
Clause 39 amends section 188, which allows the Commission to ask, and
allows a registration board to give the Commission information, comment
and recommendations about a health complaint or a registered provider to
whom the complaint relates.
A minor amendment is to be made to this section to ensure parity with
section 189, which enables a registration board to ask the Commission for
information. An amendment is to be made to subsection (3) to specify that
the board must comply with the Commission's request as soon as
practicable.
Amendment of s 189 (Registration board may ask Commission
for information)
Clause 40 amends section 189, which allows a registration board to ask the
Commission for information about any complaints made to the
Commission about the registration board's registered providers. The
Commission must comply with a request from the registration board.
In order to ensure parity with section 188, which enables a registration
board to ask the Commission for information, a new subsection (3) is to be
inserted. This subsection clarifies that the Commission's obligation to
comply with a request from a registration board, only applies to
information in the possession of the Commission.
Under subsection 189(2), the Commission is already required to comply
with the board's request as soon as practicable.
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Health Legislation Amendment Bill 2011
Replacement of s 190 (Commission may intervene in
disciplinary proceedings)
Clause 41 replaces section 190, which allows the Commission to intervene
in disciplinary proceedings taken against a registered provider and appeal
against decisions made in those proceedings.
As a consequence of the enactment of the National Law, section 190 has
been redrafted to limit its application to disciplinary proceedings
concerning state registered providers being conducted under Health
Practitioners (Professional Standards) Act 1999. The new section 190A
will enable the Commission to intervene in disciplinary proceedings
concerning a nationally registered provider being conducted under the
National Law.
As currently provided for by section 190, this will mean that the
Commission may:
· intervene in disciplinary proceeding before a disciplinary body under
the Health Practitioners (Professional Standards) Act 1999 because
of a health complaint or a matter in relation to which the Commission
is conducting an inquiry under the HQCC Act
· intervene at any time and, on intervention, become a party to the
disciplinary proceeding
· be represented by a lawyer or another person, if it intervenes in a
disciplinary proceeding before Queensland Civil and Administrative
Tribunal (QCAT)
· nominate a person, other than a lawyer, to appear in a disciplinary
proceeding before a State Board or a professional conduct review
panel established under the Health Practitioners (Professional
Standards) Act 1999
· intervene in an appeal against a decision of a disciplinary body made
in a disciplinary proceeding. On intervention in the appeal, the
Commission becomes a party to the appeal.
The ability to intervene in such proceedings is warranted in light of the
Commission's statutory responsibilities to identify, review and improve the
quality of health services provided in Queensland as well as to act in the
public interest when responding to health complaints.
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Health Legislation Amendment Bill 2011
This clause also inserts a new section 190A to enable the Commission to
intervene in the following disciplinary proceedings concerning a nationally
registered provider being conducted under the National Law:
· the hearing of a matter by a performance and professional standards
panel established under section 182 of the National Law
· a proceeding before QCAT, for a matter referred to QCAT under
section 193 of the National Law
· an appeal before QCAT of a specified decision made by a National
Board or a panel established to assess the health or performance of a
nationally registered provider as listed in section 199 of the National
Law.
The Commission may intervene in a disciplinary proceeding at any time
and, on intervention, becomes a party to the disciplinary proceeding.
If the Commission intervenes in a disciplinary proceeding before a
performance and professional standards panel, the Commission may be
represented by a lawyer or another person with leave of the panel.
If the Commission intervenes in a disciplinary proceeding before QCAT,
the Commission may be represented by a lawyer or another person.
The ability to intervene in such proceedings is warranted in light of the
Commission's statutory responsibilities to identify, review and improve the
quality of health services provided in Queensland as well as to act in the
public interest when responding to health complaints.
Replacement of s 210 (Commission may provide information)
Clause 42 replaces section 210, which states that if the Commission refers
a health complaint to a registration board or other entity under Chapter 5
(Health complaints) or Chapter 7 (Investigations by Commission), the
Commission may give the board or other entity any information given to,
or gathered by, the Commission in the course of dealing with the
complaint, except for information obtained through conciliation.
As a result of the enactment of the National Law, this section has been
redrafted to clarify that it also applies when the Commission notifies a
National Board that it has received a health complaint about a nationally
registered provider. This amendment removes any doubt that the
Commission is able to share information with a National Board as part of
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Health Legislation Amendment Bill 2011
the notification and consultation processes under section 150 of the
National Law.
Amendment of ch 15, pt 2, hdg (Transitional provisions)
Clause 43 amends the heading for part 2 as a consequence of the insertion
of a new part 3 to set out the transitional arrangements for the amendments
to the HQCC Act being made by the Bill. The transitional arrangements
under part 2 emanate from the introduction of the HQCC Act in 2006.
Insertion of new ch 15, part 3
Clause 44 inserts a new part 3 into Chapter 15, comprised of sections 231
to 233, to set out the transitional arrangements for the amendments to the
HQCC Act being made by the Bill.
Section 231 - Definitions for Part 3
Section 231 defines the term `amendment Act' and `commencement' for
the purposes of the part - that is, amendment Act means the Health
Legislation Amendment Act 2011 and commencement means the
commencement of this part.
Section 232 - Existing health complaints not finally dealt with
Section 232 clarifies how a health complaint or notification under the
National Law is to be dealt with, if the complaint or notification has not
been finally dealt with before the commencement of part 3. That is, the
Commission must continue to deal with the complaint or notification under
the HQCC Act as if the amendment Act had not been made.
Section 233 - Health complaints made after the commencement
Section 233 clarifies how a health complaint or notification under the
National Law is to be dealt with after the commencement of part 3. That is,
the HQCC Act, as amended by the Bill, will apply to all health complaints
and notifications whether or not the complaint or notification is about a
matter that happened before the commencement of part 3.
Omission of sch 2 (Registration boards)
Clause 45 omits Schedule 2, which lists the entities that are "registration
boards" for the purpose of the definition of that term in Schedule 5 of the
Act.
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Health Legislation Amendment Bill 2011
This schedule is to be omitted as a result of the inclusion of a definition for
the term "State health law". State health law is to be defined for the
purposes of the Act as meaning any 1 of the following Acts: the Dental
Technicians Registration Act 2001; the Medical Radiation Technologists
Registration Act 2001; the Occupational Therapists Registration Act 2001;
or the Speech Pathologists Registration Act 2001.
Amendment of sch 5 (Dictionary)
Clause 46 amends Schedule 5, which sets out the definitions for certain
terms used in the Act. As a consequence of the amendments being made to
the Act:
A new definition of `registration board' is to be inserted to mean a State
Board (defined as a board established under a State health law) or a
National Board (defined as a national board established under the Health
Practitioner Regulation National Law).
A definition for the term `State health law' is to be inserted to mean any 1
of the following Acts: the Dental Technicians Registration Act 2001; the
Medical Radiation Technologists Registration Act 2001; the Occupational
Therapists Registration Act 2001; or the Speech Pathologists Registration
Act 2001.
A definition for the term `notification' is to be inserted to pick up the
meaning of this term as defined in the Health Practitioner Regulation
National Law.
The definition of `completion notice' is to be amended to cite the new term
`State health law' - that is, a completion notice means for a registration
board established under a State health law, a notice under the Health
Practitioners (Professional Standards) Act 1999, section 383. Under
certain circumstances, the Commission is prevented from taking any
further action in relation to a health service complaint until it has received a
completion notice that no further action is to be taken by a registration
board in relation to the complaint. That is, if a complaint about a registrant
is being dealt with by the registrant's board or a disciplinary body under the
Health Practitioners (Professional Standards) Act 1999 and the
Commission has advised the registrant's board that the Commission
intends to conciliate, or continue to conciliate, the complaint as provided
for by sections 62(3), 66(3) and 76(3) of the HQCC Act.
The definition of `disciplinary body is to be amended to include a reference
to the new term `performance and professional standards panel'. Under the
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Health Legislation Amendment Bill 2011
National Law, a National Board may establish a performance and
professional standards panel if the Board reasonably believes, because of a
notification or for any other reason, that the practise of a registered
practitioner is or may be unsatisfactory; or that the professional conduct of
a registered practitioner is or may be unsatisfactory. Under the new section
190A, the Commission may intervene in a disciplinary proceeding before a
performance and professional standards panel.
In addition, a number of definitions are to be amended to confirm with
current drafting practices whereby a reference to the applicable chapter and
section of the Act is to be cited in the definition. For example, the
definition of the term "proposed action" will now appear as "proposed
action for chapter 3, see section 25(1)(c)".
Part 6 Amendment of Pest Management
Act 2001
Act amended
Clause 47 specifies that this Part amends the Pest Management Act 2001.
Amendment of s 19 (Requirements about application for
licence)
Clause 48 amends section 19 of the Pest Management Act, which
prescribes the elements required for an application by a person for a pest
management technician licence (in order to carry out pest management
activities). Section 19(c) requires the application to be accompanied by an
application fee prescribed under a regulation.
One of the requirements to be licensed as a pest management technician is
to hold a relevant pest management qualification for the pest management
activity intended to be carried out under the licence. A licence issued
under the Act for a fumigation activity will be limited to the site
environment in which the person applying for the licence has demonstrated
competence. A fumigation activity includes measuring, mixing or
weighing when preparing a fumigant for use, and also includes the use of a
fumigant to kill a pest, or sterilise grain or seed to prevent germination.
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Health Legislation Amendment Bill 2011
Competence in a fumigation activity must be demonstrated in one or more
site environments, such as a ship's hold or a silo.
Section 24 of the Pest Management Act currently requires a licence to state
the site environments under which a fumigation activity may be carried out.
Despite this requirement, the Pest Management Act does not stipulate that
a declaration of assessment in relation to that competence must be provided
in support of an application for a pest management licence. Instead, this
competency document is sought administratively. To overcome this
discrepancy, the Bill amends section 19 to prescribe a document - a
declaration of assessment - that is also required to accompany an
application for a pest management technician licence, if the application is
for a licence under which a fumigation activity may be carried out only in a
certain site environment. The declaration of assessment must be in writing
and signed by an accredited assessor. Section 19 is further amended to
include definitions for accredited assessor and declaration of assessment.
Amendment of sch 3 (Dictionary)
Clause 49 amends Schedule 3 of the Pest Management Act to correct a
minor punctuation error in the current definition of site environment.
Part 7 Amendment of Public Health Act
2005
Act amended
Clause 50 specifies that this Part amends the Public Health Act 2005.
Amendment of s 81 (Disclosure of confidential information in
the public interest)
Clause 51 amends section 81, which enables confidential information held
in the Notifiable Conditions Register (the Register) if the Chief Executive
believes, on reasonable grounds, that the disclosure is in the public interest.
Chapter 3, Part 2 of the Public Health Act provides for the establishment of
the Notifiable Conditions Register (the Register) to help protect the
community from notifiable conditions, while maintaining an appropriate
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Health Legislation Amendment Bill 2011
balance between the health of the public and individuals' rights and
privacy. In accordance with this objective, the Register is used to:
· supply data to monitor and analyse the incidence and patterns of
notifiable conditions, to study the management and treatment of these
conditions, and to increase public awareness about these conditions;
· identify outbreaks of notifiable conditions so the Commonwealth, the
State or a local government can take steps to protect public health;
· help in the identification of persons who have, or may have,
contracted a notifiable condition so that action can be taken to provide
treatment in order to prevent or minimise the transmission of the
notifiable condition; or
· help in the planning of services and strategies to prevent or minimise
the transmission of notifiable conditions.
Given the sensitive nature of information that may be included on the
Register, the Act regulates how this information may be used and disclosed
(see sections 76 to 88). It is an offence for a person to disclose information
obtained as a result of the person performing a function under part 2, unless
the disclosure is expressly authorised. While section 81 enables the
disclosure of information in the public interest, the only individual within
Queensland Health who may authorise such a disclosure is the Chief
Executive.
The Bill therefore provides for section 81 to be amended to enable the
Chief Executive to delegate this responsibility to the Chief Health Officer
or another officer who has expertise or experience in the management of
public health issues. As currently provided for by the Act, should the Chief
Executive, Chief Health Officer or another senior officer approve the
release of information in the public interest, this must be detailed in the
department's annual report tabled in the Queensland Parliament. The
information included in the report will not include any identifying data but
rather the type of information released and the purpose for which the
information was released.
This amendment will ensure that Queensland Health will be able to
respond to an imminent public health concern, involving a notifiable
condition, which requires the timely release of information in the public
interest. Such action may be warranted in order to prevent or minimise the
spread of a notifiable condition with potentially fatal or long-term
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Health Legislation Amendment Bill 2011
consequences for the health of a person (e.g. HIV, hepatitis A, a pandemic
flu, etc).
Amendment of s 160 (Meaning of prescribed period)
Clause 52 amends section 160 of the Public Health Act, which defines the
term prescribed period for the purposes of Chapter 5, Part 2 of the Act. A
prescribed period is the period of time that a child, who is the subject of a
direction under Part 2, must not attend school or a child care service.
As a consequence of the amendments being made to Part 2, the head of
power for the making of a regulation about the prescribed period for a
vaccine preventable condition under subsection 160(3) is to be amended.
The amendment will enable a prescribed period to be set for a child who
does not have a vaccine preventable condition but who is suspected of (i)
not having been vaccinated for the condition and (ii) being at risk of
contracting the condition if the child continues to attend a school or child
care service.
The amendment changes the focus of the existing provision from a
non-vaccinated child having contact with a child suspected of having a
vaccine preventable condition to the non-vaccinated child being at risk of
contracting the condition if they continue to attend school or child care.
The periods prescribed under the regulation will be set having regard to the
recommendations of the National Health and Medical Research Council
(NHMRC) about the prevention of infectious conditions in schools,
pre-schools and child care services. The minimum periods for excluding a
child from school, pre-school and child care centres recommended by the
NHMRC are currently utilised by schools and child care services to inform
their policies on how to deal with children who are ill when they arrive at
the facility, or who become ill while in care.
Amendment of s 161 (When parent must not send a child to
school or child care service)
Clause 53 amends section 161 of the Public Health Act, which imposes an
obligation on parents not to send their children to school or child care if
they know, or ought reasonably to know, their child has a contagious
condition or the parent has been directed under Chapter 5, Part 2 to remove
and not to send their child to the school or service for a prescribed period.
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Health Legislation Amendment Bill 2011
This section is amended to provide clarity about when a parent must not
send a child to school or child care service, by capturing cases where the
parent knows or ought reasonably to know the child has, or may have, a
contagious condition. Reasons for the suspicion may include exposure of
the child to another person with the contagious condition.
Currently, the focus of the provisions under Chapter 5, Part 2 is on the
spread of contagious conditions within a particular school or child care
service. As such, it fails to adequately recognise that an outbreak of a
contagious condition within the broader community may spread to children
attending a particular school or child care service. For example, a child
may be exposed through their attendance at social functions, participation
in club sports or contact with their younger siblings attending a different
school or child care.
The NHMRC recommends that one of the most important ways of
preventing the spread of an infectious condition is to exclude children who
have the condition and, in some cases, children who have had contact with
other persons who have the condition. Section 161 reinforces the role
parents have in helping to prevent the spread of contagious conditions.
Preventing the spread, or breaking the transmission cycle, of a contagious
condition among children at school or in child care will not only help to
maintain the health of Queensland children but help to curtail the overall
incidence of these conditions within the broader community.
Amendment of s 162 (When teacher or carer must advise
person in charge)
Clause 54 amends section 162 of the Public Health Act, which requires a
teacher or child care worker to advise the person in charge of their school
or child care service that a child attending the school or service may have a
contagious condition.
This section is to be amended to more clearly state that this obligation
applies to a teacher or carer who reasonably suspects that a child has, or
may have, a contagious condition. It also provides consistency with
terminology used across Part 2 in relation to whether a child "has or may
have" a contagious condition and reflects that a suspicion may be based on
a number of reasons, including as a result of exposure of a child to another
person with a contagious condition that has occurred within or outside the
school or child care service.
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Health Legislation Amendment Bill 2011
Amendment of s 163 (Person in charge may advise parent
about suspicion of contagious condition)
Clause 55 amends section 163 of the Public Health Act, which enables a
person in charge of a school or child care service to provide advice to the
parents of the children attending the school or service if it is suspected that
a child at the school or service may have a contagious condition.
This section is to be amended to more clearly state that the person in charge
may provide such advice if they reasonably suspect that a child has, or may
have, a contagious condition. It also provides consistency with
terminology used across Part 2 in relation to whether a child "has or may
have" a contagious condition and reflects that a suspicion may be based on
a number of reasons, including as a result of exposure of a child to another
person with a contagious condition that has occurred within or outside the
school or child care service.
Under this section, the person in charge may advise a child's parent:
· that a child attending the school or service has, or may have, a
contagious condition and other children attending the school or
service may be at risk of contracting the condition; and
· about their obligation under section 161 to keep their child away from
school or child care if they know, or ought reasonably know, their
child has or may have a contagious condition; and
· about their obligation to remove their child, and keep their child away
from school or child care for a prescribed period, if the parent is
issued with a direction under chapter 5, part 2.
Amendment of s 164 (Person in charge may direct parent not to
send child to school or child care service)
Clause 56 amends section 164 of the Public Health Act, which enables the
person in charge of a school or child care service to direct the parent of a
child to remove and not send their child to the school or service for a
prescribed period.
This section is to be amended to more clearly state that this section will
apply if the person in charge reasonably suspects that a child has, or may
have, a contagious condition. It also provides consistency with
terminology used across Part 2 in relation to whether a child "has or may
have" a contagious condition and reflects that a suspicion may be based on
a number of reasons, including as a result of exposure of a child to another
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Health Legislation Amendment Bill 2011
person with a contagious condition that has occurred within or outside the
school or child care service.
A direction under section 164 may only be issued if:
· the person in charge has provided at least one of the child's parents
with advice as provided for by section 163; and
· the child continues to attend the school or service, or the parent tells
the person in charge that the child will continue to attend the school or
service; and
· the person in charge reasonably suspects that the child still has, or
may have, a contagious condition and that this may place other
children at risk of contracting the condition; and
· the person in charge has consulted a doctor or another person
authorised by the Chief Executive (Health).
Amendment of s 165 (Person in charge may advise parent of
child not vaccinated about suspicion of vaccine preventable
condition)
Clause 57 amends section 165 of the Public Health Act, which enables a
person in charge of a school or child care service to advise a child's parent
if they reasonably suspect that a child attending the school or service who
has not been vaccinated for a contagious condition (i.e. a vaccine
preventable condition) may be at risk of contracting the condition because
another child attending the school or service has the condition.
This section is to be amended to enable a person in charge to provide
advice to parents, when the person in charge reasonably suspects that a
child attending the school or service:
· has not been vaccinated for a vaccine preventable condition; and
· may be at risk of contracting the condition if the child continues to
attend the school or service.
This amendment more accurately reflects the risk a non-vaccinated child
may face if there is an outbreak of a vaccine preventable condition in their
community and there is evidence to suggest that the condition may be
spread to children attending a particular school or child care service.
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Amendment of s 167 (Chief executive may authorise
examination of children at school or child care service)
Clause 58 amends section 167 of the Public Health Act, which enables the
Chief Executive (Health) to arrange for a doctor to examine the children
attending a school or child care service to decide whether the children,
have or may have, a contagious condition, including a vaccine preventable
condition.
Subsection (1) is to be amended to more clearly state that this section will
apply if it is reasonably suspects that some or all of the children at a school
or child care service should be examined because a child attending the
school or service has, or may have, a contagious condition. It also provides
consistency with terminology used across Part 2 in relation to whether a
child "has or may have" a contagious condition and reflects that a suspicion
may be based on a number of reasons, including as a result of exposure of a
child to another person with a contagious condition that has occurred
within or outside the school or child care service.
Section 167 specifies that the Chief Executive must consult with the person
in charge of the school or service and give the person in charge prior notice
about the date, time, reasons and who will be conducting the examination
as well as the children, or class of children, to be examined.
In addition, section 168 requires that if a child is to be examined, prior
notice must be given to at least one of the child's parents, including:
· the date, time, reasons and who will be conducting the examination;
· that the parent's consent is required for the examination to be carried
out;
· that the parent may be present during the examination;
· that the parent may elect to have a doctor of their own choice certify
whether or not the child has, or may have, the condition.
The Chief Executive must also advise the parent that they may be directed
to remove and not send their child to school or child care service, if:
· the parent fails to have their child examined either by a doctor of their
choice or the doctor nominated by the Chief Executive; or
· the examination of their child reveals the child has, or may have, the
condition.
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Amendment of s 169 (Chief executive may direct person in
charge in relation to child)
Clause 59 amends section 169 of the Public Health Act, which sets out the
circumstances under which the Chief Executive may direct a person in
charge of a school or child care service to direct a parent that they must
remove and not send their child to school or child care.
Section 169 is to be amended in line with the amendments being made to
Chapter 5, Part 2 to reflect the risk a non-vaccinated child may face if there
is an outbreak of a vaccine preventable condition in their community. The
Chief Executive will be able to issue a direction under section 169 if the
Chief Executive reasonably suspects that a child attending a school or child
care service has not been vaccinated for a vaccine preventable condition
and will be at risk of contracting the condition if they continue to attend
school or child care. Under such a direction, the parent will be asked to
remove their child from the school or service for the prescribed period for
the condition.
As explained above, the prescribed period for a condition will be set having
regard to the recommendations of the NHMRC about the prevention of
infectious conditions in schools, pre-schools and child care services.
Amendment of s 172 (Chief executive may require details if
child suspected of having a contagious condition)
Clause 60 amends section 172 of the Public Health Act, which enables the
Chief Executive to obtain specified information from the person in charge
of a school or child care service, to the extent that it is available to the
person in charge. The information that may be required is limited to that
which is necessary for the Chief Executive to act under Chapter 5, Part 2.
For example, a child's place and date of birth, contact details for a child's
parents and if available, whether the child has been vaccinated for a
particular condition.
Subsection (1) is to be amended to more clearly state that this section will
apply if it is reasonably suspects that a child attending at a school or child
care service has or may have a contagious condition and other children at
the school or service may be at risk of contracting the contagious condition.
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Amendment of s 173 (Giving health information held by the
department)
Clause 61 amends section 173 of the Public Health Act, which enables
health information held by the health department to be given to the Chief
Executive, a person in charge of a school or child care service, or another
person involved in the administration of part 2.
Subsection (4) is to be amended as a consequence of the changes being
made to section 165. That is, to enable a person in charge to advise the
parent of a child who may be at risk of contracting a vaccine preventable
condition if the child continues to attend the school or service. In order to
be able to act under this section, a person in charge may need to obtain
information from Queensland Health about whether or not a child has been
vaccinated for a vaccine preventable condition.
Amendment of s 180 (Directions to person in charge of school
or child care service)
Clause 62 amends section 180 of the Public Health Act, which enables the
Chief Executive (Health) to give directions to a person in charge of a
school or child care service about the ways to minimise the risk of children
and staff at the school or service contracting a contagious condition, if the
Chief Executive is satisfied there is an outbreak of the condition at the
school or service.
The amendment broadens the circumstances under which the Chief
Executive may issue such a direction to more accurately reflect the risk
children face when there is an outbreak of a contagious condition in their
community and there is evidence to suggest that the condition may be
spread to children attending a particular school or child care service.
Currently, this provision may only be utilised when the Chief Executive is
satisfied there is an outbreak at a school or child care service. The
amendment will enable such directions to also be issued if the Chief
Executive is satisfied that there is an outbreak of a contagious condition in
the community and there is a risk that children or staff at a school or service
may contract the condition.
As currently provided for by section 180, a direction must be in writing and
state ways of minimising the risk of contracting the contagious condition
by children and staff at the school or service including, for example, by:
· preventing the sharing of eating utensils, drinking cups, bed linen and
clothing;
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· requiring that eating utensils, drinking cups, bed linen, toys or other
equipment be disinfected;
· requiring that stated procedures for cleaning and disinfecting be
followed; or
· requiring the person in charge to give information to staff, children or
parents about the contagious condition including about the way it may
be treated and measures to prevent its spread.
The amendment does not alter the obligation on the Chief Executive
(Health) to consult with the school or child care service and the relevant
Chief Executive of the department responsible for the education sector or
child care sector, prior to issuing a written direction. The ability to issue
such directions may be an important step in controlling the spread of a
contagious condition. However, the first line of response of the public
health sector, when managing an outbreak, will be to provide expert advice
and work collaboratively with schools, child care services and parents to
manage an outbreak.
Amendment of s 181 (Temporary closure of school or child care
service)
Clause 63 amends section 181 of the Public Health Act, which enables the
Minister for Health to issue a written notice to a person in charge of a
school or child care service to temporarily close the school or service for a
period of not more than 1 month.
Similar to the previous amendment, section 181 is to be amended to enable
the Minister to act under this section if satisfied that there is an outbreak of
a contagious condition in the community and there is a risk that the
children or staff at a school or service may contract the condition. In this
case, however, the Minister must be satisfied that the risk is significant.
The amendment does not alter the obligation on the Minister to consult
with the relevant Minister responsible for either the education sector or the
child care sector, prior to issue a written notice under section 181.
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Part 8 Amendment of Public Health
(Infection Control for Personal
Appearance Services) Act 2003
Act amended
Clause 64 specifies that this Part amends the Public Health (Infection
Control for Personal Appearance Services) Act 2003.
Amendment of s 36 (Suitability of premises at which higher risk
personal appearance services are to be provided)
Clause 65 amends section 36, which sets out the criteria that local
government may consider when deciding whether premises are suitable for
providing higher risk personal appearance services, including whether the
premise would comply with the Queensland Development Code (QDC).
A minor amendment is required to section 36 to reflect the revised
numbering system adopted by the QDC. MP 5.2 of the QDC (previously
Part 15) sets out mandatory building standards to minimise the risk of
infection in a place or business where higher risk personal appearance
services are provided. Higher risk personal appearance services are those
skin penetration procedures in which the release of blood or other bodily
fluid is an expected result (e.g. body piercing; scarring; tattooing;
implanting natural or synthetic substances into a person's skin).
The amendment is machinery in nature and does not alter the intent of the
provision.
Amendment of s 41 (Conditions of licence)
Clause 66 amends section 41, which sets out the standards conditions for a
licence to carry on a business providing higher risk personal appearance
services, including that the licensee comply with the QDC.
A minor amendment is required to section 36 to reflect the revised
numbering system adopted by the QDC. MP 5.2 of the QDC (previously
Part 15) sets out mandatory building standards to minimise the risk of
infection in a place of business where higher risk personal appearance
services are provided.
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Health Legislation Amendment Bill 2011
The amendment is machinery in nature and does not alter the intent of the
provision.
Amendment of sch 2 (Dictionary)
Clause 67 amends the definition of second local government in the
dictionary for the Act to correct a grammatical error.
Part 9 Amendment of Tobacco and
Other Smoking Products Act
1998
Act amended
Clause 68 specifies that this Part amends the Tobacco and Other Smoking
Products Act 1998 (the Tobacco Act).
Amendment of s 26S (No smoking sign)
Clause 69 amends section 26S of the Tobacco Act, which provides for the
display of a `no smoking sign' by a licensee at the entrance to a licensed
premise. In practice, this requires the licensee to display a `no smoking
sign' at all entrances to the premises. This provision was particularly
important when smoke-free laws were first introduced in Queensland, as a
means of both educating the public and reinforcing the no smoking
message. However, it has been found in practice to be broader than
required, given the large number and diverse range of premises captured by
this provision (including licensed boats, long distance trains and bottle
shops located within an enclosed shopping centre).
The intent is not for signage to be displayed at every entrance to all
licensed premises, such as those located entirely within facilities that are
already smoke-free (such as shopping centres) and those that are not
available to public use. The amendments will focus the intent of this
provision on premises such as clubs, hotels and casinos that have the option
of establishing a designated outdoor smoking area (DOSA) where both
drinking and smoking may occur. It is important for these premises to
continue to reinforce that smoking indoors is strictly prohibited.
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To achieve this policy intent, section 26S is amended to apply only to the
licensee of premises to which a commercial hotel, community club or
commercial special facility (that contains all or part of a casino) licence
under the Liquor Act 1992 applies, and only in relation to a public entrance
from an outdoor area to an enclosed place at licensed premises. The
current requirement for the sign to be displayed as prescribed under a
regulation will continue.
Amendment of s 26ZA (Designating an outdoor smoking area)
Clause 70 amends section 26ZA of the Tobacco Act, which provides for a
licensee of particular licensed premises (i.e. premises to which a
commercial hotel, community club or commercial special facility licence
under the Liquor Act 1992 applies) to designate a part of the licensed
outdoor area of the premises as an area in which drinking and smoking, but
not eating, is allowed (known as a designated outdoor smoking area or
DOSA).
Under section 26ZA, a DOSA must meet certain minimum requirements,
which include having a buffer adjacent to other parts of the outdoor area of
the premises ordinarily accessed by patrons. The buffer may be either a 2.1
metre high vertical screen impervious to smoke, or a two metre horizontal
area in which patrons are not allowed to eat, drink or smoke. The policy
intent behind the buffer requirements for a DOSA is to reduce exposure of
workers and patrons to environmental tobacco smoke (ETS) and clearly
separate smoking areas from non-smoking outdoor areas. The buffer
between a smoking and non-smoking outdoor area is integral to a DOSA
and essential to reduce the flow of ETS into non-smoking areas.
Examples of buffers are currently provided in section 26ZA(7) to assist
licensees in identifying what may be considered to be a vertical screen
impervious to smoke and in order to be clear that licensees are afforded
some flexibility in satisfying their statutory obligations.
The Bill clarifies the original policy intent of the buffer requirements by
clarifying what constitutes a screen that is impervious to smoke and how a
buffer height should be measured between areas with different floor
heights.
Screen impervious to smoke
The amendment to section 26ZA(7) removes the current example of a
`thick screening hedge' as a permitted buffer. In practice, it has been found
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Health Legislation Amendment Bill 2011
that a thick hedge typically does not meet the requirements of a screen that
is impervious to smoke and the example has been found to be ambiguous
and vulnerable to abuse. Some licensees have interpreted this example as
meaning that any plant material of the required height will provide a
sufficient buffer. This is not consistent with the legislative intent behind
giving examples of acceptable buffers.
Measuring vertical buffers
Section 26ZA is further amended to specify that the height of a buffer
screen is to be measured as if the base of the screen were level with the
highest point of the ground or floor within one metre on either side of the
screen.
The Tobacco Act does not currently specify the topographical features of
the area that must be taken into account when measuring the height of a
vertical screen buffer to determine whether it satisfies the statutory height
requirement. In practice, some premises have a DOSA and non-smoking
area adjacent to each other, but with different floor heights. Typically, the
DOSA in these instances is located on the higher level, and the
non-smoking area on the lower level. In these cases, the licensees have
correctly placed a vertical buffer between the two areas of differing heights,
but have measured the height of the buffer from the lower (non-smoking)
area to satisfy their statutory obligations. The differing heights, however,
mean that the buffer on the higher (DOSA) level typically has a height of
less than 2.1 metres. This allows for smoke to drift over the screen and into
non-smoking areas, increasing exposure of patrons and staff in those
non-smoking areas to ETS. This is inconsistent with the legislative intent
of a 2.1 metre high vertical screening buffer between a DOSA and
non-smoking area.
· The intended effect of this amendment is to ensure that where a buffer
screen is placed between two areas of different heights, the screen
must be 2.1 metres from the highest point of the ground or floor
within one metre on either side of the screen. In practice, this will
provide licensees with two alternatives:
· locate the vertical buffer one metre or more from the perimeter of the
DOSA and measure the 2.1 metre screen from the lowest ground or
floor level of the two areas (in this case, the one metre between the
DOSA and the non-smoking area works in conjunction with the 2.1
metre screen to provide an adequate buffer from ETS); or
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locate the vertical buffer at less than one metre from the perimeter of the
DOSA and measure the 2.1 metre screen from the highest ground or floor
level of the two areas (in this case, the screen would be greater than 2.1
metres in total, but would be the statutory 2.1 metres from the ground or
floor level of the highest area).
Renumbering of subsections (8) and (9), to subsections (9) and (10)
enables this clarification to be inserted at an appropriate place within
section 26ZA, as new subsection (8).
Amendment of s 26ZS (Supply of food or toys resembling
tobacco products)
Clause 71 amends section 26ZS of the Tobacco Act, which prohibits, as
part of a business activity, the supply (which includes sale) of a toy or food
that is not a tobacco product, but resembles a tobacco product.
The primary objective of the Tobacco Act when introduced in 1997
(enacted at that time as the Tobacco Products (Prevention of Supply to
Children) Act 1998) was to reduce the number children in Queensland who
take up smoking. This objective was supported by studies that show that
reducing the number of children who take up smoking is the most effective
way of reducing the incidence of smoking in the community and reducing
the deaths and illnesses caused by smoking and the resultant demands on
the health care system.
Accordingly, the Tobacco Act prohibits certain conduct which makes
tobacco more easily obtainable or more desirable to children, or which
normalises smoking to children (e.g. the sale of single cigarettes, or food or
toys that resemble tobacco products). The policy of prohibiting the supply
of food or toys that resemble tobacco products is based on studies that
show that children who have used such products are more likely to
experiment with tobacco than children who have not.
Despite capturing toys, the sale of other novelty items that resemble
tobacco products (such as cigarette shaped pens) is not currently prohibited
under section 26ZS. This is because these items would not normally fall
within the meaning ordinarily ascribed to the term `toy' (which are not
defined in the Act), despite having a similar `novelty' value. These novelty
items may therefore be legally sold, and are in fact available for sale in
Queensland. Like toys and food that resemble smoking products, these
novelty items normalise smoking to young people and may encourage
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young people to experiment with smoking, and should therefore be subject
to the same prohibition.
The Bill amends section s26ZS to clarify that the supply of any object that
is not a tobacco product but resembles a tobacco product is prohibited.
This amendment is intended to capture more broadly any food, toy or
novelty item.
Insertion of new s 26ZT
Clause 72 inserts new section 26ZT into the Tobacco Act to prohibit the
sale of cigarettes that are confectionary-flavoured or fruit-flavoured. An
offence is created for breaching this provision, with a maximum penalty of
140 penalty units (currently $14,000).
The Bill does not prohibit the sale of menthol cigarettes. In addition, this
clause will not capture the sale of loose tobacco which may contain fruit
flavouring, such as shisha used for smoking in traditional hookah pipes.
This is because the definitions of cigarette and loose smoking blend are
mutually exclusive.
Insertion of new s 42E
Clause 73 inserts new section 42E into the Tobacco Act to provide for the
forfeiture to the State of smoking products seized in relation to an offence
of supplying a smoking product to a child under the Act.
Sections 40 and 41 of the Tobacco Act empower authorised persons to
seize a smoking product or thing if they reasonably believe the smoking
product or thing is evidence of an offence against the Act. In particular,
section 40 relates to the seizure of smoking products in instances where the
products have been, or are reasonably believed to have been, supplied to a
child, which constitutes evidence of an offence against the Tobacco Act
(e.g. section 10 prescribes an offence for a supplier to supply a smoking
product to a child and section 11 prescribes an offence for a supplier failing
to ensure an employee of the supplier does not supply a smoking product to
a child).
If a person is convicted in relation to the alleged offence, section 43
provides that a court may order the forfeiture of the seized smoking product
to the State. Where the person is not convicted, section 44A requires the
smoking product to be returned to the person, either at the end of six
months or at the end of any proceeding in relation to the offence.
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In practice, the effect of section 44A means that, for example, if cigarettes
are seized from a child (whether purchased by the child or supplied to the
child by an adult) and a prosecution is not pursued or is unsuccessful, the
cigarettes must be returned to the child. This is an undesirable policy
outcome and contrary to the intent of the Tobacco Act.
The Bill, therefore, inserts new section 42E to clarify that where a smoking
product is seized under section 40, the smoking product is forfeited to the
State at the end of six months from the day it was seized, or if a proceeding
involving the supply of the smoking product is started within six months
from the day it was seized - at the end of the proceeding and any appeal
from the proceeding.
In effect, this means that cigarettes and tobacco products seized from a
minor as evidence of an offence against the Tobacco Act are automatically
forfeited to the State, regardless of whether a person is subsequently
convicted in relation to the suspected offence to which the cigarettes or
products relate.
© State of Queensland 2011
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