You Have to Read This

By Scott Burris

Australian public health law savant Chris Reynolds recently stopped by Temple Law School to discuss the South Australia Public Health Act of 2011.  It is a fresh look at how to write a basic public health law statute, but one provision took my breath away.

62—Minister may issue code of practice

(1) The Minister may issue a code of practice in relation to preventing or reducing the incidence of a non-communicable condition.

(2) A code of practice may relate to—

(a) an industry or sector;
(b) a section or part of the community;
(c) an activity, undertaking or circumstance.

(3) Without limiting subsection (1) or (2), a code of practice may relate to the manner in which, for the purposes of public health—

(a) specified goods, substances or services are advertised, sponsored, promoted or marketed (including through the provision of certain information to consumers of certain goods, substances, or services);
(b) specified goods or substances are manufactured, distributed, supplied or sold (including the composition, contents, additives and design of specified goods or substances);
(c) buildings, infrastructure or other works are designed, constructed or maintained;
(d) the public, or certain sections of the public, are able to access specified goods, substances or services.

(4) The Minister must, before issuing or amending a code of practice, insofar as is reasonably practicable, consult with any person or organisation that the Minister considers to be representative of any industry or sector affected by the proposed code or amendment.

(5) The Minister may publish a report on the performance of an industry, sector or person in relation to a code.

(6) The Minister must, before publishing a report under subsection (5) that would reasonably be expected to have an adverse impact on a person specifically identified in the report, provide a copy of the report to the person and then allow the person at least 14 days to make written representations in relation to the contents of the report.

(7) No action lies against the Minister in respect of the contents of a report published under this section.

A code of practice is enforceable under a “general duty clause” that stipulates that  “a person must take all reasonable steps to prevent or minimise any harm to public health caused by, or likely to be caused by, anything done or omitted to be done by the person.”

Here’s a law, passed by actual legislators, that gives a health minister sweeping powers to directly, comprehensively, creatively and flexibly regulate products and activities that create both risks and benefits to the public.

We’ll wait with baited breath to see whether it works or not, but it’s already got me wondering whether they have any decent industry lobbyists in Australia.

    4 thoughts on “You Have to Read This

    1. Quick question: what are the consequences if a regulated industry or other actor under 2(a) (which looks like it could be virtually anybody or any entity) fails to meet the specified code of practice?

      What kinds of administrative sanctions are provided? I ask only because the provisions above authorize the completion of a report evaluating the performance of relevant actors. That is not an insignificant power, of course, but still a different creature from intensive regulatory and administrative sanction, I think. No?

    2. My recollection is that Professor Reynolds explained that the Minister could ultimately bring an action under the General Duty Clause, but that this legislation was in the “responsive regulation” spirit and that it was expected that a report would be sufficient to get compliance in the unlikely event of non-compliance. I’ve written Professor Reynolds and asked him to comment further.

    3. Scott’s right – the Chief Public Health Officer (a statutory person who sits in the Health Department) or a local government body could issue a notice under s 92 to comply either with the general duty (non-compliance with the code can amount to a breach of the general duty) or more simply to comply with the code of practice itself. Failure to comply with the specifications in the notice is an offence – (max penalty $25,000 with provisions for continuing offences too). The Ministerial report (s 62(5)) on compliance also adds a possible element of ‘public shaming’ to the process. Over the next decade or so it will be interesting to see how effectively this part of the Act is used. Putting the legislative provisions in place is one thing: It then requires political will to provide the actual codes and to identify the areas they are to cover, remembering also that Australia is a federal system and that much of the field within which non-communicable issues of public health significance sits tends to be regulated nationally rather than at a state or regional level.

    4. Scott and Chris,

      Thank you very much for the helpful response. I wonder how effective the public shaming will be, and if there will be local and regional differences in that level of efficacy. (Not a criticism — just wondering). Regardless, this is innovative and interesting, and I plan to bring it up in my PHL class in the spring.