Part 3 Scheduled medical conditions
Division 1 General precautions
11 Precautions against spread of certain medical conditions
(1) A person who:(a) suffers from a Category 2, Category 3, Category 4 or Category 5 medical condition, and(b) is in a public place or other place of public resort (including any means of public transport), and(c) fails to take reasonable precautions against spreading the medical condition,is guilty of an offence.Maximum penalty: 50 penalty units or imprisonment for 6 months.
(2) It is a defence to a prosecution of a person for an offence under this section if it is proved that the person was, at the time of commission of the alleged offence, ignorant of the existence of the medical condition on which the prosecution is based.
Division 2 Sexually transmissible medical conditions
(1) A medical practitioner who believes on reasonable grounds that a person receiving attention from the medical practitioner suffers from a sexually transmissible medical condition must, as soon as practicable, provide the person with such information concerning the condition as is required by the regulations.(2) A medical practitioner who fails to comply with this section is guilty of an offence unless the court is satisfied that the medical practitioner knew that the information to which the offence relates had been supplied to the patient by another medical practitioner.Maximum penalty: 50 penalty units.
13 Sexual intercourse—sexually transmissible medical condition
(1) A person who knows that he or she suffers from a sexually transmissible medical condition is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person:(a) has been informed of the risk of contracting a sexually transmissible medical condition from the person with whom intercourse is proposed, and(b) has voluntarily agreed to accept the risk.Maximum penalty: 50 penalty units.
(2) An owner or occupier of a building or place who knowingly permits another person to:(a) have sexual intercourse at the building or place for the purpose of prostitution, and(b) in doing so, commit an offence under subsection (1),is guilty of an offence.Maximum penalty: 50 penalty units.
(3) For the purposes of this section, a person is not to be presumed incapable of having sexual intercourse if the only ground for the presumption is the age of the person.(4) In this section, sexual intercourse means:(a) sexual connection by the introduction into the vagina, anus or mouth of a person of any part of the penis of another person, or(b) cunnilingus.
Division 3 Notification and treatment of certain medical conditions
14 Medical practitioner to notify certain scheduled medical conditions
(1) This section applies to a medical practitioner who:(a) attends a person because of a Category 1 medical condition or believes on reasonable grounds that a person receiving attention from the medical practitioner suffers from a Category 2 medical condition, or(b) as a result of any kind of post-mortem examination, believes on reasonable grounds that a person has died as a result of such a medical condition.(2) A medical practitioner to whom this section applies in relation to a person must:(a) as soon as practicable, record in accordance with the regulations particulars concerning the person, and(b) keep the record for the prescribed period, and(c) immediately after recording the particulars, send to the Director-General a certificate that relates to the particulars and is in an approved form that does not provide for the provision of information that the medical practitioner is prohibited by section 17 from disclosing, and(d) in so far as it is within the medical practitioner’s ability to do so, provide the Director-General with any information requested by the Director-General as to the medical condition from which the person is or was suffering, not including information that the medical practitioner is prohibited by section 17 from disclosing.(2A) The medical practitioner is not required to comply with any such requirements if:(a) the medical practitioner is attending the person as a patient at a hospital, and(b) the person is suffering from a notifiable disease, and(c) the medical practitioner has been notified that the chief executive officer of the hospital has, in accordance with section 69, already provided the Director-General with the relevant information concerning the person.In this subsection, notifiable disease, hospital and chief executive officer have the same meanings as in section 68.
(3) Except to the extent that the regulations otherwise provide, this section applies to a person engaged in a prescribed occupation in the same way as it applies to a medical practitioner.
(1) A person who fails to comply with a requirement of section 14 applicable to the person is guilty of an offence.Maximum penalty: 50 penalty units.
(2) It is a defence to a prosecution for an offence under this section if the court is satisfied:(a) that the record alleged not to have been made or kept, or(b) that the certificate alleged not to have been sent,had been made, kept or sent by another medical practitioner or person to whom section 14 applies.
16 Notification of test results—Category 3 medical condition
(1) If:(a) a medical practitioner requests a serological or other prescribed test for the purpose of detecting whether a person is suffering from a Category 3 medical condition, and(b) the test has a positive result,the person who, in response to the request, certifies the result of the test to the medical practitioner must, as soon as practicable, send to the Director-General a report in the approved form that relates to the test but does not disclose the name or address of the patient if the medical condition is also a Category 5 medical condition.(2) A person who is required to send a report under this section and fails to do so is guilty of an offence.Maximum penalty: 50 penalty units.
(3) A medical practitioner who requests a person to carry out a test referred to in subsection (1) (a) must provide the person with sufficient information to enable the person to comply with subsection (1).(4) A medical practitioner who, without reasonable excuse, fails to comply with subsection (3) within the prescribed period is guilty of an offence.Maximum penalty: 50 penalty units.
(5) On receiving a report under subsection (1) that appears to the Director-General to be incomplete or contain incorrect information, the Director-General may require a medical practitioner involved in the treatment of the person the subject of the report to provide any information required to complete the report or correct the information.(6) A medical practitioner who is subject to a requirement made under subsection (1) may comply with the requirement despite any other Act or law.
Division 4 Category 5 medical condition
(1) A medical practitioner must not state the name or address of a patient:(a) in a certificate sent to the Director-General under section 14 in relation to a Category 5 medical condition, or(b) except as may be prescribed, in a written or oral communication made by the medical practitioner for the purpose of arranging a test to find out whether the patient suffers from a Category 5 medical condition.(2) A person who, in the course of providing a service, acquires information that another person:(a) has been, or is required to be, or is to be, tested for a Category 5 medical condition, or(b) is, or has been, infected with a Category 5 medical condition,must take all reasonable steps to prevent disclosure of the information to another person.(3) Information about a person that is of a kind referred to in subsection (2) may be disclosed:(a) with the consent of the other person, or(b) in connection with the administration of this Act or another Act, or(c) by order of a court or a person authorised by law to examine witnesses, or(d) to a person who is involved in the provision of care to, or treatment or counselling of, the other person if the information is required in connection with providing such care, treatment or counselling, or(e) in such circumstances as may be prescribed.(4) A medical practitioner or other person who fails to comply with the requirements of this section is guilty of an offence.Maximum penalty: 50 penalty units.
18 District Court may authorise disclosure of name and address
(1) The Director-General may apply to the District Court, in accordance with the rules of the District Court, for an order authorising the service on a medical practitioner of a notice under section 19 requiring disclosure of a name and address that would otherwise be protected by section 17 from disclosure.(2) An application under this section may be made in relation to a medical practitioner only if the Director-General has reasonable grounds for believing that:(a) the person whose name and address are sought is suffering from a Category 5 medical condition, and(b) identification of the person is necessary in order to safeguard the health of the public.(3) An application to the District Court under this section is to be heard and determined in the absence of the public but is to be otherwise heard and determined in accordance with the rules of the District Court.(4) The District Court:(a) is to make an order applied for under this section if satisfied that there are reasonable grounds for making the order, or(b) is to dismiss the application if not so satisfied.
19 Notice by Director-General requiring disclosure of name and address
(1) If authorised to do so by an order of the District Court made under section 18, the Director-General may, by written notice served personally or by post on:(a) a medical practitioner or other person who has sent a certificate to the Director-General under section 14, or(b) a medical practitioner who has requested a serological or other test to which a report under section 16 relates,require the medical practitioner or other person to provide the Director-General, within a reasonable time specified in the notice, with the name and address of the person the subject of the certificate or report.(2) A medical practitioner or other person who, without reasonable excuse, refuses or neglects to comply with the requirement of a notice served on the medical practitioner or other person under this section is guilty of an offence.Maximum penalty: 50 penalty units.
Division 5 Death from scheduled medical condition
20 Notification of certain deaths
Immediately after registration of the death of a person apparently caused by a scheduled medical condition, the Registrar of Births, Deaths and Marriages is to arrange to have sent to the Director-General, in the approved form, a notification of the death stating:(a) the name, address and age of the deceased, and(b) the name of the person who certified the cause of death, and(c) such other particulars as may be prescribed.
Division 6 Public health orders—Categories 4 and 5
In this Division:appropriate reviewer, in relation to a public health order, means:
(a) if the order relates to a Category 5 medical condition and there has been no application to the Tribunal for its continuation—the Tribunal (as constituted for the purposes of section 25), or(b) in any other case—the Tribunal (as constituted for the purposes of section 26).authorised medical practitioner means:
(a) the Chief Health Officer, Department of Health, or(b) a medical practitioner authorised by the Director-General to exercise the functions of an authorised medical practitioner under this Division.proceeding includes an inquiry and an application to the Tribunal relating to a matter arising under this Division.
22 Power to require medical examination
(1) The Director-General may, by written notice, require a named person to undergo a medical examination that:(a) is carried out by a medical practitioner chosen by the person, and(b) is of a kind described in the notice,if the Director-General believes on reasonable grounds that the person is suffering from a Category 4 or Category 5 medical condition.(2) If:(a) a notice under this section is served personally on the person to whom it relates, and(b) the person fails, without reasonable excuse, to comply with the requirements of the notice,the person is guilty of an offence.Maximum penalty: 50 penalty units.
23 Making of public health order
(1) An authorised medical practitioner may make a written public health order in respect of a person if satisfied on reasonable grounds that the person:(a) is suffering from a Category 4 or Category 5 medical condition, and(b) is behaving in a way that is endangering, or is likely to endanger, the health of the public because the person is suffering from that medical condition.(2) A public health order must:(a) name the person to whom it applies, and(b) state the circumstances purporting to justify the making of the order, and(c) state that, unless the order is earlier varied as to its duration or is earlier revoked, it expires a specified number of days (not exceeding 28) after its service on the person, and(d) comply with subsection (3).(3) A public health order must require the person to whom it applies to do any one or more of the following:(a) refrain from specified conduct,(b) undergo specified treatment,(c) undergo counselling by a specified person or by one or more persons belonging to a specified class of persons,(d) submit to the supervision of a specified person or one or more persons belonging to a specified class of persons,(e) undergo specified treatment and be detained at a specified place while undergoing the treatment,(f) if the order is based on a Category 5 medical condition—be detained at a specified place while the order is in force.(3A) In making a public health order, the authorised medical practitioner must take into account:(a) such guidelines relating to public health orders as may be approved by the Director-General from time to time, and(b) the principle that any requirement restricting the liberty of the person to whom the order applies should be imposed only if it is the only effective way to ensure that the health of the public is not endangered or likely to be endangered.(4) A public health order may include provisions ancillary to, or consequential upon, the matters required to be included in the order.(5) A public health order does not take effect until it is served personally on the person to whom it applies.
24 Duration of public health order
(1) A public health order that relates to a Category 5 medical condition ceases to have any effect if:(a) the person subject to the order is not, within 3 business days after service on the person of the order, also served with a copy of an application made to the Tribunal for confirmation of the order under section 25, or(b) such an application is made and the Tribunal revokes the order under section 25, or(c) the order expires before it is confirmed or revoked by the Tribunal under section 25, or(d) the order expires before or after an application to continue the order is made to the Tribunal under section 26.(2) In this section, business days means successive days excluding any Saturday, Sunday and public holidays.
25 Tribunal to review certain public health orders
(1) An application may be made to the Tribunal for confirmation of a public health order based on a Category 5 medical condition.(2) The Tribunal is, as soon as practicable, to inquire into the circumstances surrounding the making of the order and:(a) if satisfied that the making of the order was justified—is to confirm the order or vary the order and confirm it as varied, or(b) if not so satisfied—is to revoke the order.(3) The Tribunal may vary the order only by:(a) adding a requirement that could have been included in the order when made, or(b) substituting any such requirement for any one or more of them already included in the order.(4) The Tribunal may, from time to time, adjourn an inquiry under this section for not more than 7 days.(5) For the purposes of an inquiry under this section, the Tribunal may:(a) obtain the assistance of any person having medical or other qualifications relevant to the subject-matter of the inquiry, and(b) take into account a certificate given by such a person.(6) A decision of the Tribunal made in proceedings determining an application under this section is an appealable decision for the purposes of Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997.
26 Tribunal may continue public health order
(1) An authorised medical practitioner may, before the expiration of a public health order, apply to the Tribunal for continuation of an order if:(a) the order is based on a Category 4 medical condition, or(b) the order is based on a Category 5 medical condition and has been confirmed by the Tribunal under section 25.(2) An application for continuation of a public health order may be made under this section only if the applicant is satisfied, on reasonable grounds, that the person to whom the order relates would, if not subject to such an order, continue to endanger the health of the public as a consequence of suffering from a Category 4 or Category 5 medical condition.(3) If continuation of a public health order is applied for under this section and the person subject to the order notifies the Tribunal that continuation of the order is not opposed, the Tribunal may, without inquiry, continue the order for a period not exceeding 6 months.(4) Unless the order is continued under subsection (3), the Tribunal is to make such inquiries as it thinks fit in relation to the application and may:(a) continue the order, with or without variation, for a period not exceeding 6 months, or(b) refuse to continue the order, or(c) revoke the order.(5) The Tribunal may vary the order only by:(a) omitting a requirement included in the order, or(b) adding a requirement that could have been included in the order when made, or(c) substituting any such requirement for any one or more of them already included in the order.(6) For the purposes of an inquiry under this section, the Tribunal may:(a) obtain the assistance of any person having medical or other qualifications relevant to the subject-matter of the inquiry, and(b) take into account a certificate given by such a person.
27 Conditions applicable if person detained
(1) A person detained under the authority of a public health order may be so detained subject to such conditions with respect to the person’s security as the medical practitioner making the order considers necessary in the interests of the health of the public and specifies in the order.(2) A person detained under the authority of a public health order may, for any special reason accepted by an authorised medical practitioner, be permitted to leave the place of detention, but only under the constant personal supervision of a person, or any one of a number of persons, nominated by the medical practitioner.(3) A person who is detained under a public health order and:(a) is in breach of a condition specified in the order, or(b) evades supervision to which he or she is subject under this section,is to be taken to have contravened the public health order.
28 Offence to contravene public health order
(1) If the person to whom a public health order applies contravenes the order, the person is guilty of an offence.Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
(2) Proceedings for an offence under this section may be brought only by the Director-General or a police officer.(3) Prosecution for an offence under this section does not preclude action under section 30 in respect of the contravention on which the prosecution is based.
29 Apprehension of person who contravenes public health order
(1) A certificate by an authorised medical practitioner to the effect that a named person is contravening a public health order is a sufficient ground for the issue to a police officer of a warrant to apprehend the person and detain the person in custody pending an inquiry under section 30.(2) A police officer who is provided with such a certificate is, as soon as practicable, to:(a) obtain a warrant for which the certificate is a ground, and(b) apprehend the person named in the certificate, and(c) detain the person in custody pending an inquiry under section 30.(3) Section 27 applies in relation to detention following apprehension under this section in the same way as it would apply if the certificate that led to the apprehension had been a public health order.
30 Action following apprehension or surrender
(1) If a person alleged to have contravened a public health order:(a) is apprehended and brought before the appropriate reviewer, or(b) appears voluntarily before the appropriate reviewer,the reviewer is to inquire into the allegation.(2) If, after inquiry, the appropriate reviewer is not satisfied that the person has contravened a public health order, it is to order that the person be discharged.(3) If, after inquiry, the appropriate reviewer is satisfied that a person has contravened a public health order, it may confirm the public health order or:(a) vary the public health order by adding a requirement, direction or other provision that could have been included in the order when made, or(b) vary the public health order by substituting any such requirement, direction or other provision for any one or more of them already included in the order, or(c) caution the person and take no further action in the matter.(4) A person may be dealt with under this section in respect of an alleged contravention of a public health order whether or not the person has been charged under section 28 for an offence in relation to the same contravention.
31 Revocation of public health order by authorised medical practitioner
If an authorised medical practitioner considers that the person to whom a public health order applies is no longer endangering, or likely to endanger, the health of the public, the medical practitioner is to revoke the order and immediately give written notice of the revocation to:(a) the person to whom the order applied, and(b) the appropriate reviewer.
32 Restriction on making of further public health order
(1) This section applies to a person who was the subject of a public health order if:(a) the order was revoked by the Tribunal under section 25 or 26, by an authorised medical practitioner under section 31 or on an appeal against the order, or(b) the Tribunal has refused under section 26 to continue the order.(2) A further public health order may be made in respect of a person to whom this section applies only if the authorised medical practitioner proposing to make the further order is satisfied on reasonable grounds that, since the earlier order ceased to have effect, there has been a change in the person’s health or behaviour which increases the risk of endangering the health of the public.
(1) If a person detained under a public health order or following apprehension under section 29 escapes from the place of detention, he or she may be apprehended at any time by:(a) the person for the time being in charge of the place from which the person escaped, or(b) an authorised medical practitioner, or(c) a police officer, or(d) any person assisting a person referred to in paragraphs (a)–(c).(2) On being apprehended, the escapee must be returned to the place from which he or she escaped.
34 Unlawful release from detention
(1) A person who, without lawful authority, releases, or attempts to release:(a) a person detained under a public health order or following apprehension under section 29 or 33, or(b) a person being conveyed to a place at which he or she is to be so detained,is guilty of an offence.Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
(2) It is a defence to a prosecution for:(a) an offence under this section, or(b) aiding, abetting, counselling or procuring the escape of a person detained under a public health order or following apprehension under section 29 or 33,if it is proved that the action of the defendant did not endanger the health of the public and that the defendant knew this to be so.
35 Restrictions on publication
(1) The court in which proceedings under this Division have been instituted or are being heard may make orders having the effect of prohibiting or restricting the publication of matters relating to the proceedings or to a person in respect of whom the proceedings have been instituted.(2) The orders that a court may make under this section include orders prohibiting or restricting publication of any one or more of the following:(a) any report that relates to the proceedings,(b) the identity of the person in respect of whom the proceedings have been instituted,(c) any information from which the identity of that person could be deduced,(d) any information from which could be deduced the identity of a person in respect of whom a public health order is, or at any time was, sought or made, whether or not in the proceedings.(3) An order under this section may be made by the court of its own motion or on the application of a party to the proceedings.(4) If an application under this section is made by a party to the proceedings, the onus is on the other party to show cause why the application should be refused.(5) An order made under this section does not operate to prevent publication of a report of the proceedings if:(a) the report is published in a genuine volume of law reports, a legal journal or any other publication intended to be read mainly by Australian lawyers, Magistrates and Judges, and(b) the person in respect of whom the proceedings were instituted, or in respect of whom a public health order is sought or made, is not identified in the report.(6) A person who contravenes an order in force under this section (whether aware of the order or not) is guilty of an offence.Maximum penalty:
(a) in the case of a corporation—100 penalty units, or(b) in any other case—50 penalty units or imprisonment for 6 months, or both.(7) This section does not prevent punishment, as a contempt, of a contravention of an order made in proceedings before a court but, in respect of such a contravention, a person may not be dealt with both for a contempt of the court and by prosecution for an offence.(8) In this section:publish means:
(a) publish in a newspaper, magazine or other periodical publication, or(b) publish by radio or television transmission, or(c) include in a cinematographic film or videotape that is, or is to be, available to the public, or(d) include in a book or sound recording that is, or is to be, available to the public, or(e) make known to the public in any other manner or by any other means.
36 Inspection of medical records
(1) A person to whom a public health order applies, or the authorised agent of such a person, is, unless the appropriate reviewer otherwise directs, entitled to inspect, and make copies of, medical records relating to the person that are kept by another person.(2) If the medical records are not kept in a readable form, the person in charge of the records is to provide a readable copy of them.
37 Proceedings—Divisions 2 and 3
Proceedings for offences under Divisions 2 and 3 are to be heard and determined in the absence of the public.
Proceedings under Division 6 before a court:(a) are to be open to the public unless an objection is made by or on behalf of a party to the proceedings and is upheld by the court, or(b) are to be held in closed court if such an objection is made and upheld.
39 Representation in proceedings under Division 6
A party to proceedings under Division 6 before a court may be represented by an Australian legal practitioner or, with the leave of the court, by a person other than an Australian legal practitioner.
Division 8 Other applications to Administrative Decisions Tribunal
40 Applications to Tribunal for review of action or direction of Minister
An application may be made to the Tribunal for a review of any of the following decisions:(a) any action taken by the Minister under section 5 other than the giving of a direction by an order published under that section, or(b) any direction given by an order so published.
41 Applications to Tribunal for review of public health order relating to Category 4 medical condition
An application may be made to the Tribunal for a review of a public health order that is based on a Category 4 medical condition.