Chief Health Officer, NSW Department of Health v A (No.2)

[2001] NSWADT 99

CITATION:	Chief Health Officer, NSW Department of Health v A (No.2) [2001] NSWADT 99
DIVISION:	General Division
PARTIES:	APPLICANT Chief Health Officer, New South Wales Department of Health RESPONDENT A
FILE NUMBER:	013112
HEARING DATES:	10/05/2001
SUBMISSIONS CLOSED:	05/10/2001
DATE OF DECISION:	05/10/2001
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Hennessy A Dr - Member
APPLICATION:	Public Health Act - contravention of public health order - Public health Order - contravention of public health order
MATTER FOR DECISION:	Principle matter
LEGISLATION CITED:	Public Health Act 1991
CASES CITED:	Chief Health Officer, NSW Department of Health v A [2001] NSWADT 69
REPRESENTATION:	APPLICANT C Ronalds, counsel RESPONDENT A Haesler, counsel
ORDERS:	1 The Tribunal varies the public health order made in relation to A which took effect on 3 April 2001 and was continued by the Tribunal on 1 May 2001 for a period of six months, so as to require that A be detained under appropriate supervision at the premises of Foley House, 6-8 Bellevue Street, Surry Hills, for a period of three months from the date of this order.

Delivered Ex Tempore

1 The proceedings today were convened at relatively short notice to deal with an application by the Chief Officer of Health that the Tribunal conduct an inquiry as provided for by s 30 of the Public Health Act 1991 (the Act), following A (the respondent) having made herself voluntarily available after an alleged contravention of a public health order. [That order was made pursuant to s 23 of the Act and took effect on 3 April 2001. It was formally continued by the Tribunal pursuant to s 26 on 1 May 2001 for a period not exceeding six months.] Section 30 provides as follows:

‘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.’

2 The order sought now is that the Tribunal vary the public health order continued previously on 1 May to require that A be detained under appropriate supervision at the premises of Foley House for a period of three months from the date of the Tribunal’s order.

3 The conclusion that the panel has reached is that it is appropriate to make an order in the terms proposed. We have given consideration to the issues raised on behalf of A by Mr Haesler and we make the following short observations.

4 The application as we saw it, and in particular, as Dr Hennessy (non-judicial member with expertise in public health) saw it, is one that needs to be approached from a public health perspective. In particular, we note that the proposed arrangement is essentially a proposal about supervision rather than detention in any sense of how that term is traditionally used in the law at least.

5 We acknowledge that the difference that will now apply to A’s immediate circumstances is that she will not be able to leave her new home without permission and if she does absent herself from Foley House without permission, that itself would constitute a breach. In that sense, through the loss of her ability voluntarily to go and come from her home as she pleases, it could possibly be said that she is being detained. But that is a far cry, as I think Ms Ronalds has suggested, from much more severe and more draconian levels of detention that could be applied to A’s circumstances.

6 We also wish to take this opportunity to acknowledge that we accept that there is a significant personal change now involved for A in that it does appear that she has established a lifestyle at [name of suburb suppressed] which certainly for her has been an improvement in her life as compared to the way things have gone previously. We acknowledge that this order will have the kind of consequences that Mr Robertson (Manager, Foley House) and others have referred to in terms of having to give up that house.

7 But the fundamental task of the Tribunal as prescribed in the Act is to have regard to the matters to which the Act is addressed. On two earlier occasions, the Tribunal has issued orders requiring A to refrain from sex work. For background, see Chief Health Officer, NSW Department of Health v A [2001] NSWADT 69. That, we are satisfied, on the material presented today, has not occurred. We do note from the material today that there does appear to have been a change to the extent that A now indicates that she seeks to engage in safe sex. But that is really not the answer. The prior orders required her to refrain entirely from sex work.

8 As to the proposed time period, three months, we appreciate much of what Mr Haesler had to say in submissions and put through questions. In its own right the maximum length of time for which short term care can be provided by an institution is not the factor that should determine the appropriate length of time for an order of this kind. But having heard in detail from Ms Stewart as to the needs for care and support that the care team feels apply to A’s case, and also having heard what Mr Robertson said about the practicalities of moving to make appropriate arrangements if and when it is convenient for A to leave Foley House, it seemed to us that a period of about three months was probably an appropriate period.

9 Also, we felt that a much shorter length of time, let’s say one month, would probably not offer the opportunity to enable the new relationships which will need to be developed in the new environment to reach a reasonable degree of strength. It seemed to us that for the various reasons that were given, especially Ms Stewart and Mr Robertson’s, we felt that that three month period was reasonable. I do not think there are any other matters to address.

10 The only further point I think we should make is that we gave some thought to whether the matter of what might constitute ‘appropriate supervision’ should be spelt out to any degree. It seemed to us more appropriate to leave that mater in the general terms in which it is addressed in the order. We have taken account of the material that was presented today, including the notes, as to the arrangements which the Department and the relevant team at Foley House propose to enter into.

11 The Tribunal is satisfied that A, as alleged by the applicant, has breached the public health order that was continued on 1 May 2001. The application is granted in the terms sought.

Order

1. The Tribunal varies the public health order made in relation to A which took effect on 3 April 2001 and was continued by the Tribunal on 1 May 2001 for a period of six months, so as to require that A be detained under appropriate supervision at the premises of Foley House, 6-8 Bellevue Street, Surry Hills, for a period of three months from the date of this order.