EXPLANATORY STATEMENT
Ordinance No. 9, 2018
Issued by the authority of the Minister for Regional Development, Local Government and the Territories
Norfolk Island Act 1979
Norfolk Island Legislation Amendment (Public Health) Ordinance 2018
The Norfolk Island Act 1979 (the Act) provides for the Government of the Territory of Norfolk Island.
Section 19A of the Act provides that the Governor General may make Ordinances for the peace, order and good government of the Territory of Norfolk Island. The Norfolk Island Legislation Amendment (Public Health) Ordinance 2018 (the Ordinance) is made under section 19A of the Act.
The purpose of the Ordinance is to amend the Norfolk Island Applied Laws Ordinance 2016 to apply remaining suspended provisions of the Public Health Act 2010 (NSW) and Public Health Regulation 2012 (NSW) to Norfolk Island. Laws in force in NSW are in force on Norfolk Island under subsection 18A(1) of the Act, although are largely suspended by a section 19A Ordinance.
The Ordinance also makes consequential amendments to continued Norfolk Island legislation, and repeals the Public Health Act 1996 (NI) and Health (General) Regulation (NI). Norfolk Island enactments made by the former Legislative Assembly have continued in force under section 16A of the Act and (under section 17) may also be amended or repealed by a section 19A Ordinance.
The Australian Government is committed to providing Norfolk Island services that are at a level comparable to similar-sized mainland communities. The Ordinance contributes to delivering this commitment by enhancing public health regulation and monitoring, according to the robust standards in place under the NSW legislation. The Ordinance focusses on environmental health, particularly drinking water, legionella control, public swimming pools and spas, and skin penetration procedures, to increase the level of community safety and help ensure that public health risks are avoided, or caught early.
Specifically, the Ordinance clarifies public health obligations for businesses, which benefits both community members and visitors by encouraging the safety of services offered by businesses while containing potential public health risks. For example, businesses offering supplied water are required to create a water Quality Assurance Program to outline how water quality will be managed. For water tank users, who make up the majority of water suppliers on Norfolk Island, quarterly testing is required at an accredited laboratory in Sydney. Previously, testing occurred at an informal on-Island laboratory. The new testing approach offers suppliers a robust model of their water supply, reducing public health risks.
To facilitate the Ordinance, amendments were made to the NSW Public Health legislation as applied on Norfolk Island to help ensure that the legislation meets the requirements of the community structure and special features of Norfolk Island. In addition, the Ordinance amends the Interpretation Act 1979 (NI), to simplify references to NSW legislation in Norfolk Island continued laws. The amendments permit (NSW) (NI) or (NSW) to be written after the short title of Acts or legislative instruments to indicate whether they are applied to Norfolk Island or not, rather than explaining in full terms each time a reference is made.
Prior to drafting the Ordinance, extensive consultation was undertaken to ensure that anyone affected by the legislation understood why the changes were sought for Norfolk Island, and to assist them to meet any new requirements the proposed legislation would raise. Further, the Norfolk Island Regional Council has been working with the community and stakeholders to prepare for the legislation since 2016, through a service delivery agreement with the Department of Infrastructure, Regional Development and Cities. The Council has been supported, as required, through an agreement with the Port Macquarie Hastings Council.
In addition, the South Eastern Sydney Local Health District (SESLHD) Public Health Unit (the PHU) will extend support to the Norfolk Island Health and Residential Aged Care Service (NIHRACS), as NIHRACS is taken to be an affiliated Health Organisation of SESLHD under the Health Services Act 1997 (NSW) (NI). The PHU has agreed to liaise with water suppliers regarding their responsibilities under the legislation once it is applied, and will monitor the water Quality Assurance Programs provided by water suppliers.
Details of the Ordinance are set out in the Attachment.
The Ordinance is a legislative instrument for the purposes of the Legislation Act 2003.
The Ordinance will commence the day after it is registered on the Federal Register of Legislation.
Authority: Section 19A of the Norfolk Island Act 1979
Statement of compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Norfolk Island Legislation Amendment (Public Health) Ordinance 2017
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instrument listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of Disallowable Legislative Instrument
The Norfolk Island Legislation Amendment (Public Health) Ordinance 2018 will remove the suspension on remaining parts of the Public Health Act 2010 (NSW) and Public Health Regulation 2012 (NSW). The provisions relate to environmental health, public health registers, notification of certain deaths and codes of conduct for health professionals. The Ordinance also amends those provisions as appropriate for their application to Norfolk Island.
These NSW laws are in force on Norfolk Island under section 18A of the Norfolk Island Act 1979 (Cth) not this instrument. This Statement of Compatibility with Human Rights is therefore limited to considering the human rights implications of the specific modifications to NSW laws, rather than of the NSW laws themselves.
Human Rights Implications
This Disallowable Legislative Instrument engages the following right:
- Fair trial and fair hearing rights, as set out in Article 14 of the International Covenant on Civil and Political Rights. See also Article 40 of the Convention on the Rights of the Child and Article 13 of the Convention on the Rights of Persons with Disabilities.
The Territory of Norfolk Island has its own system of courts and tribunals. The Supreme Court of Norfolk Island exists under the Norfolk Island Act 1979 (Cth). In addition, Norfolk Island continued laws have established both the Norfolk Island Court of Petty Sessions and the Norfolk Island Administrative Review Tribunal.
The relevant provisions of the Public Health Act 2010 (NSW) which will be in force on Norfolk Island from 2 March 2018 under section 18A of the Norfolk Island Act 1979 (Cth), makes provision for both merits and judicial review in relation to certain matters. As these are laws of NSW, they provide for NSW Courts and Tribunals to undertake these review functions.
To ensure that review rights continue in relation to Norfolk Island, provisions have been inserted into the Norfolk Island Applied Laws Ordinance 2016 (Cth) which will operate to clarify that in matters which arise under the Public Health Act 2010 (NSW) review options are vested in the relevant Norfolk Island court of tribunal.
Whilst this instrument changes review rights on Norfolk Island, by directing review mechanisms to Norfok Island courts and tribunals instead of NSW courts and tribunals, it does not reduce or limit appeal rights. Accordingly, the instrument may be considered to promote human rights by ensuring that access to justice for Norfolk Islanders is protected under applied NSW laws.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights because it promotes the protection of human rights.
ATTACHMENT
Norfolk Island Legislation Amendment (Public Health) Ordinance 2017
Section 1 – Name
This section provides that the name of the Ordinance is the Norfolk Island Legislation Amendment (Public Health) Ordinance 2018.
Section 2 – Commencement
This section provides that the whole of the Ordinance commence on the day after registration.
Section 3 – Authority
This section provides that the Ordinance has been made under s 19A of the Norfolk Island Act 1979.
Section 4 – Schedules
This section provides that each instrument specified in a Schedule to the Ordinance is amended or repealed as set out in the Schedule. The section also provides that any other item in a Schedule to that Ordinance has effect according to its terms.
Schedule 1 – Public Health Legislation
Norfolk Island Applied Laws Ordinance 2016
Norfolk Island Applied Laws Ordinance 2016 Schedule 6—Amendment of the Public Health Act 2010 (NSW) and the Public Health Regulation 2012 (NSW)
Part 1—Amendment of the Public Health Act 2010 (NSW)
Overview
The items below apply the remaining suspended provisions of the Public Health Act 2010 (NSW), which provide for action on the prevention and control of environmental health matters. Amendments were made sparingly, to meet the needs of the Norfolk Island context and maintain the intent of the NSW legislation without unnecessarily complicating the NSW legislation.
Item 1
The amendment to subsection 5(1) redirects the definitions of Civil and Administrative Review Tribunal and District Court to refer to the Administrative Review Tribunal of Norfolk Island and the Supreme Court of Norfolk Island, as the appropriate Norfolk Island equivalents.
New subsection 5(1)(da) provides that, for the purposes of the Public Health Act 2010, the definition of Hospital under the Act includes the Norfolk Island Health and Residential Aged Care Service facility.
The amendment to subsection 5(1) also amends the definitions of Local Court, Supreme Court and Tribunal to refer to the Court of Petty Sessions of Norfolk Island, the Supreme Court of Norfolk Island and the Administrative Review Tribunal of Norfolk Island respectively.
Item 2
This item repeals subsections 6A(1) and (2), which previously functioned to identify the provisions of the Public Health Act 2010 (NSW) that applied to Norfolk Island. As the Public Health Act 2010 (NSW), as amended, now applies in full to Norfolk Island, subsections 6A(1) and (2) are no longer required.
Item 3
This item amends subsection 6A(3)(c) so that in that section only “Local Court” is read as “Local Court of New South Wales”. The subsection then explains that where jurisdiction would, in NSW, be conferred on the Local Court of New South Wales, it will instead go to the Court of Petty Sessions of Norfolk Island. Note that this makes drafting consistent with subsections 6A(3)(a) and 6A(3)(b).
Item 4
The amendment to subsection 7(7) omits reference to the Administrative Decisions Review Act 1997 (NSW), which remains suspended on Norfolk Island, instead substituting the Administrative Review Tribunal Act 1996 (NI) as the appropriate equivalent legislation.
Item 5
The amendment to paragraph 24(1)(a) repeals the paragraph, substituting a provision protecting relevant Commonwealth, NSW and Norfolk Island entities from liability under the Division.
This item stages the dates of introduction of certain provisions of the Public Health Act 2010 (NSW), to permit ongoing and targeted stakeholder consultation during implementation phase, and a staged increase in oversight responsibilities of the Norfolk Island Regional Council:
- Subsection 25(1AA), which provides that section 25 of Division 1 of Part 3 (quality assurance programs for drinking water suppliers) does not commence until 1 November 2018.
- Section 25A, which provides that Division 2 of Part 3 (Legionella Control) does not commence until 1 October 2018.
- Section 33A, which provides that Division 3 of Part 3 (control of public swimming pools and spa pools) does not commence until 1 November 2018.
The amendment to sections 48 and 49(6) omits reference to the Administrative Decisions Review Act 1997 (NSW), which remains suspended on Norfolk Island, instead substituting the Administrative Review Tribunal Act 1996 (NI) as the appropriate equivalent.
The amendment to section 53 omits reference to the NSW “Registrar of Births, Deaths and Marriages”, which remains without active jurisdiction on Norfolk Island, instead substituting the “Registrar (within the meaning of the Registration of Births, Deaths and Marriages Act 1963 of Norfolk Island)”.
Sections 64 and 65 relate to public health orders for people with a Category 4 or 5 condition. The amendments to the sections ensure that the Administrative Review Tribunal of Norfolk Island distributes a copy of its decision and written reasons to affected parties in order for the decision to take effect, which is consistent with section 31(3) of the Administrative Review Tribunal Act 1996 (NI).
The amendment to section 66 omits reference to the Administrative Decisions Review Act 1997 (NSW), which remains suspended on Norfolk Island, instead substituting the Administrative Review Tribunal Act 1996 (NI) as the appropriate equivalent legislation.
Item 6
The amendment to section 73(3) ensures that the Administrative Review Tribunal of Norfolk Island distributes copies of its decisions and written reasons to affected parties to take effect, which is consistent with section 31(3) of the Administrative Review Tribunal Act 1996 (NI).
Item 7
The amendment to subsection 118(3) removes reference to the Fines Act 1996 (NSW) (which remains suspended on Norfolk Island). Instead, new section 118A, which is based on section 22A of the Fines Act 1996 (NSW), states the effect of payment of a fine.
The amendment to 118(5) expands subsection 118(5) by replacing “Act” with “law”. This amendment allows that the provision to be read in relation to both NSW applied legislation and the continued laws of Norfolk Island, to ensure that the provision does not inadvertently restrict the operation of other laws in force on Norfolk Island.
Item 8
The amendment to subclause 3(1) repeals the definition of correctional centre (which refers to the currently suspended Crimes (Administration of Sentences) Act 1999 (NSW)), substituting a definition relevant to Norfolk Island (being the police station or court cell complex, or detention centre within the meaning of the Sentencing Act 2007 (NI)).
Subclause 3A provides that Part 2 (Legionella Control) does not apply until 1 October 2018. This provides additional time for stakeholders to meet compliance requirements before the Part takes effect, and supports a staged increase of the Norfolk Island Regional Council’s oversight responsibilities.
The amendment to subclause 5(2) omits “an owners corporation (within the meaning of the Strata Schemes Management Act 1996)”, and substitutes “a body corporate (within the meaning of the Community Title Act 2015 of Norfolk Island)”. The change aligns the Ordinance with current legislation on Norfolk Island, as the Strata Schemes Management Act 1996 (NSW) remains suspended on Norfolk Island.
The amendment to subclause 6(4) removes the requirement for a hospital to pay a fee of $176 upon applying for a warm-water system. As the hospital is Commonwealth-funded, the fee is impractical.
Subclause 13A provides that Part 3 (Control of public swimming pools and spa pools) does not apply until 1 November 2018. This provides additional time for stakeholders to meet compliance requirements before the Part takes effect. Note that commencement is later than that provided in subclause 3A to further support a staged increase of the Norfolk Island Regional Council’s oversight responsibilities.
Subclause 33A provides that Part 5 (safety measures for drinking water) does not apply until 1 November 2018. This provides additional time for stakeholders to meet compliance requirements before the Part takes effect. Commencement coincides with that of subclause 13A, recognising the common theme of water quality to each.
The amendment to paragraph 44A(1)(b) repeals the paragraph, replacing it with a provision suitable for the Norfolk Island legislative context on the basis of definitions available in Norfolk Island legislation. The substituted definitions ensure that the provision extends to a situation under the Child Welfare Act 2009 (NI) where a child is subject to an enduring parental responsibility order, or where the child welfare officer has parental responsibility for the child.
Item 9
Clause 48 extends “part of the State concerned” to include “(which may be the whole of the State)”. This recognises the geographic context of Norfolk Island, and the likelihood that one public health officer would hold jurisdiction for the whole of Norfolk Island.
The amendments to clauses 49, 54(3) and 59(3) (definition of coroner) replace reference to the NSW Coroners Act 2009 (NSW), which remains suspended on Norfolk Island, with the Coroners Act 1993 (NI).
The amendment to subclause 49 (definition of exhumation) omits reference to the Cemeteries and Crematoria Act 2013, which remains suspended on Norfolk Island.
The amendment to subclause 70(3) omits “death certificate”, substituting “an extract” from the Norfolk Island Register of Deaths under the Registration of Births, Deaths and Marriages Act 1963 (NI), the closest equivalent available under current legislation on Norfolk Island.
The amendments to paragraphs 81(1)(c) and (2)(c) repeal the paragraphs and substitute ‘if the death is not one in relation to which an inquest may be held under the Coroners Act 1993 of Norfolk Island’. These amendments ensure that an attending practitioner or a medical practitioner do not provide a cremation certificate for a person whose death is examinable under Norfolk Island legislation. This amendment is provided for the avoidance of doubt, despite there currently being no crematorium facilities on-island.
The amendment to paragraph 82(2)(a) repeals the paragraph and substitute ‘an inquest may be held in relation to the death under the Coroners Act 1993 of Norfolk Island’. This ensures that a medical referee does not provide a cremation permit for a person whose death may be subject to an inquest under Norfolk Island legislation. This amendment would be for the avoidance of doubt, despite there currently being no crematorium facilities on-island.
The amendment to subclause 83(1) omits “whose death is examinable under the Coroners Act 2009 by the coroner”, and substitutes “in relation to whose death an inquest may be held under the Coroners Act 1993 of Norfolk Island”. This allows the coroner to provide a cremation permit for the body of a person whose death is classified as one that may be subject to an inquest under Norfolk Island legislation. This amendment is despite there currently being no crematorium facilities on-island.
The amendment to clause 14 of Schedule 3 omits reference to the Health Records and Information Privacy Act 2002 (NSW) in that clause. The Health Records and Information Privacy Act 2002 (NSW) is currently suspended on Norfolk Island, however removing reference to it will enhance clarity for practitioners relying on Schedule 3 (the Code of Conduct). This amendment will not reduce the privacy rights of clients, whose information will continue to be protected under the Australian Privacy Principles as provided in the Privacy Act 1988 (Cth), and the employment policies and contracts attached to that health practitioner.
The amendment to paragraph 17(3)(c) of Schedule 3 inserts ‘or the St John Ambulance of Norfolk Island’, as St John is the sole provider of ambulance services to Norfolk Island.
Part 2—Repeal of the Public Health Act 1996 (Norfolk Island) and the Health (General) Regulations (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 10
This item adds “Public Health Act 1996” to item 1 of Schedule 2, repealing the Public Health Act 1996 (NI).
Item 11
This item adds “Health (General) Regulations” to item 2 of Schedule 2, repealing the Health (General) Regulations (NI).
Part 3— Transitional provisions relating to the repeal of the Public Health Act 1996 (Norfolk Island) and the Health (General) Regulations (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 12
This item inserts Part 8 into Schedule 2, giving transitional provisions to protect approvals, notices and proceedings which otherwise might be affected by the repeal of the Public Health Act 1996 and the Health (General) Regulations. That Part comprises:
Part 25 Definitions
This item provides that commencement day means the day on which Schedule 1 to the Norfolk Island Legislation Amendment (Public Health) Ordinance 2018 commences.
Part 26 Notices under the Public Health Act 1996
This item provides transitional provisions for notices issued under the Public Health Act 1996 (NI) sections 21 and 22, so that a notice issued under either provision prior to the commencement day of this Ordinance continues to have effect as if it were issued under sections 78 or 79 of the Environment Act 1990 (NI) respectively.
Part 27 Approvals, notices and proceedings under the Health (General) Regulations
This item provides transitional provisions for approvals, notices and proceedings under the Health (General) Regulations regulation 10, 15(b), 16(b), 29(1)(b) and 40. The first four regulations are held to be approvals, notices or proceedings (as applicable) under alternate Norfolk Island legislation, while regulation 40 (abatement of nuisance) continues to apply despite the repeal of the Health (General) Regulations for any notice given under that sub-regulation before the commencement day of the Ordinance. Sub-regulation 40 does not have a close equivalent in other legislation in force on Norfolk Island.
Part 4 – Consequential amendments of continued laws
Norfolk Island Continued Laws Ordinance 2015
Item 13
Bores and Wells Act 1996
New items 24AG, 24AH, 24AI and 24AJ amend the Bores and Wells Act 1996 (NI) to remove the provisions relating to the construction or alteration of bores and wells that relied on the commencement of Part 3 of the Public Health Act 1996 for validity. Note that Part 3 of the Public Health Act 1996 never commenced, and is repealed per Item 10 above.
Item 14
Building Act 2002
This item saves the definition of “building work” under the Building Act 2002 (NI) by substituting a definition for “mains sewer facility” from the Environment Act 1990 (NI) in the place of one from the Public Health Act 1996 (as that Act is repealed under Item 10 above). The wording of the definition of “mains sewer facility” in each Act is identical.
Item 15
Environment Act 1990
This item commences following provisions of the Environment Act 1990 (NI): Division 3 of Part 6, and Items 11 to 16 of Schedule 3, which were not previously commenced. The provisions deal with the management of garbage on Norfolk Island, and are commenced so that the Health (General) Regulation (NI) can be repealed (Item 11 above) without adverse effect to current services (there is no alternate legislation active on Norfolk Island that deals with garbage management in the same terms). Note that the commencement of these provisions occur despite subsection 1 of 2 (which provides commencement dates for the Environment Act 1990 (NI)).
Item 16
Health Act 1913
This item repeals items 102 and 102AA of Schedule 1, then amends the Health Act 1913 (NI) to repeal Parts 1-3, and sections 2, 21, 22, 24(1)(b), 24A and Schedules 1 to 4. This leaves sections 21A, 21B, 21C and 24(1)(a) in place, which deal with matters pertaining to skin penetration that are not otherwise dealt with by legislation in force on Norfolk Island.
Item 17
Planning and Public Health (Consequential Provisions) Act 1996
This item repeals Parts 3, 4 and 7 of the Planning and Public Health (Consequential Provisions) Act 1996 (NI). Those provisions have not been commenced, however as they purported to repeal the Environment Act 1990 (NI), the Health (Hairdressers) Regulations (NI), and the Sale of Food Act 1950 (NI) the provisions are repealed for the avoidance of doubt and to continue to update the continued laws.
Item 18
This item repeals the heading “Public Health Act 1996 (Norfolk Island)” in Part 1 of Schedule 1. The heading is no longer required as the Act is repealed under Item 10 above.
Item 19
This item repeals sections 261 to 263 of Schedule 1, relating to the Public Health Act 1996. Those provisions are no longer required as the Act is repealed under Item 10 above.
Item 20
This item repeals Division 6 of Part 2 of Schedule 1. This Division is a savings provision for former section 10 of the Health Act 1990. Former section 10 sat within Part 2, which is repealed under Item 16 above.
Schedule 2 – Amendment of the Interpretation Act 1979 (Norfolk Island)
Norfolk Island Continued Laws Ordinance 2015
Item 1
This item repeals section 29 of the Interpretation Act 1979 (NI), and instead substitutes the new heading “References to Commonwealth Acts”.
Item 2
New Item 192A inserts section 29A, which refers to the titling of NSW Acts and instruments within Acts in force on Norfolk Island.
New section 29A(1) states that a reference in an enactment to the short title of a NSW Act or instrument followed by “(NSW) (NI)” is a reference to that Act or instrument as in force on Norfolk Island from time to time, under section 18A of the Norfolk Island Act 1979 (Cth). This amendment is made to simplify drafting and improve readability of legislation applied on Norfolk Island.
New section 29A(2) states that a reference in an enactment to the short title of a NSW Act or instrument followed by “(NSW)” is a reference to that Act or instrument in force in NSW from time to time. This section is included to enhance readability of legislation in force on Norfolk Island by reducing drafting complexity.