Australia: How to get in - Powers of entry under the Public Health Act

Last Updated: 30 August 2018
Article by Philip Mavor

Local government has an important role in enforcing the Public Health Act 2016 (Public Health Act), and must comply with the requirements to enter premises under that Act to be able to effectively perform that function.

Reform of the public health system

The public health system in Western Australia has undergone significant reform since July 2016, with an aim to provide a more flexible and proactive framework for the regulation of public health.

The Health Act 1911 has been retained in an amended form and re-named the Health (Miscellaneous Provisions) Act 1911, and the Public Health Act commenced in stages. Part 16 of the Public Health Act (dealing with powers of entry) commenced on 20 September 2017.

Authorised officers

The powers of entry and investigation under the Public Health Act are exercised by 'authorised officers'.

A local government (as an enforcement agency) may designate a person, or class of persons, as an authorised officer. However, the local government must be satisfied the person or class has appropriate qualifications and experience to perform the functions of an authorised officer. Environmental health officers are deemed to have appropriate qualifications and experience.

Certificate of authority

A local government must issue a certificate of authority to each authorised officer. The requirements of a certificate of authority are set out in s.30 of the Public Health Act, to include (amongst other things):

  • the name, digital image, and signature of the person;
  • the date it expires (if any); and
  • the Act or provisions of Acts for which the person is designated.

An authorised officer must produce the certificate of authority if asked to do so by the person in charge of any premises entered, or any person required to produce anything or answer any questions.

An authorised officer cannot exercise the relevant powers if they fail to produce the certificate of authority.

Relevant definitions

Some grounds of entry require that the authorised officer 'reasonably suspects' that an offence under the Public Health Act has been or is being committed or there is a public health risk.

The term 'reasonably suspects' has the meaning given to it in s.4 of the Criminal Investigation Act 2006 which provides that:

"...a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable."

A 'public health risk' means a risk of harm to public health.

The term 'premises' includes:

  • land (whether vacant or not);
  • land covered by water (permanently or temporarily from time to time);
  • the whole or part of a building or other structure – of whatever type and permanent or temporary; or
  • a vehicle.

Grounds for entry

Under s.240(1) of the Public Health Act for compliance purposes an authorised officer may, at any reasonable time, enter and inspect any premises:

  • in respect of a registrable or licensable activity under Part 8 – (Part 8 has not yet commenced);
  • to which an improvement notice or enforcement order relates;
  • at which the officer reasonably suspects an offence under the Public Health Act has been or is being committed;
  • at which the officer reasonably suspects are used in connection with a public health risk; or
  • in which the officer reasonable suspects there are documents that relate to a public health risk or to an offence under the Public Health Act.

Entry in an emergency

Under s.240(2) an authorised officer may at any time enter and inspect any premises if the authorised officer reasonably suspects:

  • there is an immediate public health risk connected with those premises; and
  • the entry is necessary to enable the authorised officer to investigate, prevent, control or abate the risk.

Entry onto residential premises

An authorised officer may not enter onto any premises (or part of premises) being used solely for residential purposes, except:

  • there is a reasonably suspected immediate public health risk; or
  • with the informed consent of the occupier; or
  • under the authority of an entry warrant.

Informed consent

Informed consent requires that the occupier consents after being informed by the authorised officer:

  • of the powers the authorised officer wants to exercise;
  • the reasons why the officer wants to exercise those powers; and
  • that the occupier can refuse to consent to the authorised officer doing so.

Entry under a warrant

An authorised officer may apply to a judicial officer (i.e. JP or magistrate) for a warrant authorising entry of any premises, even if they have the power to enter the premises without a warrant:

  • where the officer reasonably suspects that within the next 72 hours there is or will be a particular thing (including a document) that may provide evidence that an offence under the Public Health Act has been or is being committed; or
  • in order to exercise powers under s.240.

Section 247 of the Public Health Act sets out how a warrant application is made.

Duration of a warrant

A warrant remains in force for the period (not exceeding 30 days) specified in the warrant. If no period is specified the warrant will remain in force for 30 days from the date of its issue.

A warrant ceases to be in force when it is executed.

Execution of a warrant

A warrant may be executed by the authorised officer to whom it was issued, or any other person who the local government (as enforcement agency) has designated as an authorised officer.

Powers under a warrant

A warrant authorises an authorised officer:

  • to enter the premises concerned using any force against any person or thing that is reasonably necessary to use in the circumstances:
    • to execute the warrant; and
    • to overcome any resistance to executing the warrant that is offered, or that the authorised officer reasonably suspects will be offered, by any person;
  • to search those premises for the thing (including documents), or to exercise powers for the purposes for which the warrant was issued; and
  • the officer must produce the warrant for inspection by a person occupying the premises concerned if asked by the person to do so.

The authorised officer may use such force as causes damage to property of another person. However, any use of force against a person is subject to The Criminal Code Chapter XXVI – (Assaults and violence to the person generally: Justification, excuse and circumstances of aggravation).

Key Points to Note

To effectively enforce the Public Health Act a local government must ensure, as a minimum, that:

  • it has effectively designated a person, or class of persons, as an authorised officer in accordance with the Public Health Act;
  • it has issued to each authorised person a certificate of authority that meets the requirements of s.30 of the Public Health Act; and
  • its authorised persons are appropriately trained and fully aware of the legal requirements for entry under the Public Health Act, including entry onto residential and non-residential premises, use of force, and the requirement to carry and produce the certificate of authority when required.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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