Explanation of the Rule of Law and its importance
Instructions:
The answers to some questions are in the study modules, readings or other unit materials. To answer other questions, you will need to research relevant legislation. Your answer must include an interpretation of the legislation (i.e. do not copy sections from the legislation, but summarise the information in your own words) and reference the relevant sections/schedules of the legislation. If the answer to a question is found in a Regulation made under an Act, you are expected to reference and explain relevant sections of the Act and the Regulation (i.e. explain how the Act creates the power for the Regulation to be made for the relevant issue).
The answer fields are shown in grey. The permitted answer length varies depending on the question asked and is shown for each answer. You mustnotexceed the permitted answer length. Any information provided in excess of the permitted answer length will not be considered when marking the quiz. Students are not permitted to change the formatting of this document, submit their answers in another document or include attachments.
References must be provided for each answer in the reference field provided. References are not included in the answer length (i.e. the references are in addition the permitted answer length). A referencing style (preferably QUT APA referencing) shown on QUT Cite Write must be used.
Only answers submitted in the approved quiz format will be graded. Any other information will be disregarded and will not be considered when grading the assessment.
a.Is the Public Health Act 2005public or private law? Explain your answer.
b.Is the Acts Interpretation Act 1954(Qld) an administrative law, criminal law or both? Explain your answer.
Answer 1a
The public health Act 2005 is a public law rather than a private law. This is because the act has been enacted for the purpose of promoting and protecting the health of the public in Queensland. It would have been a private law if that governs the relationship between individuals. However in this situation the government is involved in ensuring the health of the public therefore the act is a public law.
Answer 1b
The acts interpretation Act 1954 is an administrative law. This is because the purpose of the legislation is to provide a Framework through which proper meaning to other legislation is provided. This feature is in relation to how law is administered.
References: Public health Act 2005, Acts Interpretation Act 1954
Incorporating the Rule of Law into Environmental Health Legislation
Q2.Explain the ‘rule of law’ and why it is important. Provide a specific example of where the ‘rule of law’ has been incorporated into a piece of environmental health legislation.
Answer 2
The concept of rule of law means that every person is bound to follow the provisions which have been set out by law. Law rules over everyone and no one can be held as be above law. Even the person who has made the law is liable to be prosecuted under the law. The rule of law is incorporated into legislations through express sections. For instance in the Public Health Act the rule of law is incorporated through section 3 where it states that the Act binds all people.
Q3.Briefly explain four (4) sources of law and how each source of law effects/is relevant to environmental health law.
The four sources of law and how they relate to environment law are as follows
1.Constitution- the constitution provides basis of law making. All provisions of environment law thus have to be consistent to the constitution.
2.Intentional treaties- treaties provide international standards which need to be complied with. Thus environment law is related to such international standards in relation to the environment.
3.Legislations – legislations provided express provisions for what is right and what is not. Thus environment law is based on the provisions of such legislations
4.Common law- common law takes into account the decision of the precedent cases. The cases are decided based on general principles such as equity or custom. Thus environment law is derived from customs of how environment was maintained.
Explain when precedent is binding.
Precedent is a decision which has been made by a higher court. Judges of a lower court has to abide by the principles which have been laid by the judges in the higher court. Thus a precedent becomes binding in situation where the decision which has been provided in the higher court is in relation to similar facts which are before the lower court for the purpose of addressing a particular issue. For instance the decision of the High court is binding on the district court where the facts of the cases are similar.
Q5.Explain when persuasive precedent may be considered.
Answer 5
Precedent is binding upon the lower court where it has been provided by the higher court of the same jurisdiction. However the nature of persuasive precedent is different and is not binding on the courts. Persuasive precedent takes place when the decision has been made by the court at same level from a different jurisdiction. In this case the decision is not binding but may only persuade the decision making of the court. For instance the decision made by Supreme Court of NSW is persuasive to the decision made by the Supreme Court of QLD
Four Sources of Law and their relevance to Environmental Health Law
a.Concurrent powers allow both the Commonwealth and State governments to make laws about specific issues, but if there is any inconsistency, the Commonwealth law prevails.
b.Powers which are only held by the Commonwealth (e.g. the power to levy customs) are known as exclusive powers.
c.If a subject is not mentioned in the Australian Constitution, the power to make laws about that subject defaults to the State government. This is known as residual powers.
Q7.Explain the concept of separation of powers. Does separation of powers exist in Australia? Explain your answer.
Answer 7
The doctrines of separation of power signify that the powers of the government are divided into three separate wings which are Legislature, Judiciary and Executive wings. The power of the legislation is to make law, the power of the judiciary is to interpret the law and the power of the executive is to implement the law interpreted by the judiciary. Thus the powers of all the three wings are independent from each other. A strict doctrine of separation of powers is not seen always in Australia rather the Australian concept of separation of powers is the combination of the doctrine of “responsible government”, separation of power followed in US and the fundamental democratic concepts found in the Westminster system.
Q8.How does the Queensland Government define ‘policy’ from a legislative perspective?
In a society it is the role of the government to enact laws, making polices and allocating resource. This is required at all levels. The Queensland government defined policy from a legislative perspective as a system of law, course of action, regulatory measures and funding priorities in relation to a specific topic which is promulgated by the government. Thus from a legislative perspective it can be stated that policy in the same way as laws govern relationship between the state and the individuals and the between the individuals.
Q9.Discuss the factors that influence government policy and the development of legislation. Provide an example of how various factors have influenced the development of a specific piece of environmental health legislation (i.e. it is recommended you select a piece of legislation covered in module 2).
Answer 9
There are a few factors through which public policy and legislation is making is influenced. These factors are as follows
Public Opinion- Priorities and public opinion are said to have strong influence on public policy making. Relevant to public health is concerns in relation to environment, global climate changes and energy prices. This influences public policy via citizen’s rally, electoral politics and actions affecting government decision makers. For example the Environment Protection and Biodiversity conservation Act 1999 has been introduced for addressing environmental concerns raised by the public.
When Precedent is Binding
Economic Condition- The government has to establish a balance between economy and health. If all policies are made in favour of the environment economy would be jeopardized. For this reason the EPBC provides scope for economy and environment sustainability side by side.
Technological Changes- The government takes into consideration the changes in technology. Where new technology is available it may be used to hamper or sustain the environment. Thus in the given situation a fair balance of the use of such technology is provided through the EPBC.
Q10.If a piece of legislation can impose conditions on a licence, which fundamental legislative principle should it conform to?
The fundamental legislative principle which a legislation has to comply with in relation to imposing conditions of a licence is that does the legislation ensures that obligations or rights and liberties are made dependent on an administrative power only is situation where the power has been defined properly and sufficiently and is subjected to review.
Q11.What are fundamental legislative principles? Why are they important? Provide 3 specific examples (other than setting licence conditions) of how different fundamental legislative principles have been incorporated into environmental health legislation.
Answer 11
As per section 4(1) of the legislative Standards Act 2001 legislative principles are those rules which relate to which underlie parliamentary democracy laid on the rule of law. The legislations must provide adequate importance to institution of parliament and rights and liberties of individuals. These principles are important because they restrain any scope of non compliance with the rule of law and ensure public interest. In the EPBC the three provisions in which legislative principles can be identified are that the provisions of the act are in consistent with the principles of natural justice, delegation of administrative power is allowed only in appropriate cases to an appropriate person, provides protection against self incrimination.
Q12.Summarise s.4(5)(a) of the Legislative Standards Act 1992. Provide a specific example of how this requirement has been applied in environmental health legislation.
According to section 4(5)(a) of the LSA 1992 whether sufficient regard in relation to a subordinate legislation has been provided to parliament depends upon the fact that the subordinate legislation is made by a power by an act which allows such legislation to be made. The section has been incorporated in the EPBC as it provides for the making of state legislations.
Q13.Natural justice includes the ‘right to be heard’. Provide an example where the ‘right to be heard’ has been incorporated into a piece of environmental health legislation.
When Persuasive Precedent may be Considered
Right to be heard is incorporated into the EPBC through Chapter 20 of the Environment Protection and Biodiversity Conservation Act 1999 relating to review Mechanisms and Access to courts.
Q14.Chapter 4 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) regulates ‘environmental assessments and approvals. In this chaptertimeframes are set for specific decisions to be made or actions to be taken. For example, s.70 of the EPBC Act provides timeframes in which the Federal Minister may request referral of a proposal. These timeframes are specified in ‘business days’.
a)What is a ‘business day’ for this Chapter of the EPBC Act?
b)Is 7 May 2018 (Labour Day in Queensland) a business day for this Chapter of the EPBC Act?
a.It has been provided by part 11A of the EPBC that reference to a business day means a day which is treated as a business day in Canberra. Thus a business day in relation to chapter means the same business day.
- As per the Holidays Act 1983 May 7 (Labour Day in Queensland) is a business day in Canberra and therefore a business day as per section 70 of the EPBC.
Q15.Section 171 of the Work Health and Safety Act 2011 states that an inspector can require production of documents. Can an inspector use this power to get a copy of a photo stored electronically on a company owned computer?
In section 4 of the Work Health and Safety Act 2011 a document has been defined as a record. A photo stored electronically on a company owned computer is also to be considered as a record. Thus in this situation the inspector can use his power to get a copy of the photo from the computer as it is a record.
Q16.Explain four rules (i.e. rules that are not from legislation) used when interpreting legislation.
Four rules which are used for the purpose of interpreting legislation include
1.Literal rule- According to this rule it is the duty of the court to provide a literal or dictionary meaning to the text of the legislation where the text is clear. Thus is to give effect to the intention of the parliament however irrational or unfair be the result of the interpretation.
2.Golden rule- As per the rule only the natural and ordinary is to be provided to the text of the legislation until any ambiguity in relation to the text is identified.
3.Mischief rule- as per the mischief rule where there is any ambiguity in the text of the legislation it has to be given meaning with reference to the defect or mischief the provision intended to rectify.
Concurrency, Exclusive and Residual Powers in Legislation
4.Purpose rule- As per this rule the text of the legislation is to be given meaning in the light of the overall purpose of the legislation.
Q17.s.60(1) of the Public Health Act 2005 states “A person manufacturing, selling, supplying or using paint must comply with the standard”. Can a company be prosecuted for this offence? Explain your answer.
Yes, the company can be prosecuted for the offence in relation to the sale of paint as a person according to the general meaning and literal rule includes a natural
Q18.Determine if the following scenarios are a ‘public health risk’. If it is a public health risk, identify if it is a state or local government public health risk.
a.Cockroaches and flies breeding in waste which is accumulating in a residential back yard.
Answer-This is a local government public health risk as per section 10 of the PHA
b.A commercial swimming pool which has not been chlorinated correctly and a sample of the pool water has tested positive for Cryptosporidium. Public health risk
Answer-This is a state and Local government public health risk as per section 14 and 61 of the PHA
c.Chemical waste contamination of porous surfaces in a house that was previously used as a clandestine drug lab (i.e. illegal drugs were manufactured in the house).
Answer-This is a state government public health risk as per section 10
Q19.What is an ‘authorised prevention and control program’? When would this type of program be used? Are there any limitations on this type of program?
Answer 19
The authorized control and prevention program is a course of action which is taken by the authority to address a situation of emergency in relation to public health where there is an outbreak or likely outbreak of disease. Authority is gained by the local government from chief executive of Queensland Health.
According to section 36 of the Public Health Act 2005 a prevention and control program can be initiated by the chief executive of Queensland Health in case there a outbreak or a likely outbreak in relation to a disease which has the capacity to be transmitted to the human by pests, infestation of designated pests (mice, mosquitoes, rats) or plague.
There are significant considerations which needs to be made in relation to the program and authority is provided in only limited situations. The program limits civil liabilities of citizens so implementing it takes significant considerations.
The Concept of Separation of Powers in Australia
Q20.Are there mandatory training requirements for people who apply termite treatments to homes? If yes, specify the training requirements.
Yes compulsory training is required in relation to those applying termite treatments at homes. This training is required in relation to Pesticides Regulation 2017. According to the regulation people using pesticides as the part of the work are required to complete initial accreditation training and renewing the training in time of 5 years through the completion of short refresher course or through participation in quality assurance.
Q21.Describe what ‘notifiable conditions’ are and list 3 ‘notifiable conditions’ and list 3 ‘controlled notifiable conditions’.
Answer 21
A notifiable condition is any condition which is required by law to be mandatorily reported to the government authorities. Through the information the authority is allowed to monitor the condition and issue early warnings with respect to an outbreak.
1.Cryptosporidiosis
2.Dengue virus
3.infection Diphtheria
Three controlled Notifiable Conditions are
1.Cholera
2.Diphtheria
3.Hepatitis A
Q22.Explain what ‘recycled water’ is and what it can be used for.
Answer 22
Recycled water is defined as waste water which has been purified through the use of various levels of treatments and disinfection. Waste water is created when people use toilets, Sinks, Water, Washing Machines and Dishwashers.
After treatment the water can be used for various purposes which do not include drinking. A few purposes for which recycled water may be used include
1.Irrigation in case of agriculture
2.Recycled water is used for industrial purpose in power plants
3.It may also be used for supplementing drinking water in case of a drought
Q23.Are there ‘Infection Control Guidelines’ in place for ‘Personal Appearance Services’? If so, how are they incorporated into the legislation and what is the purpose With respect to the Public Health (Infection Control for Personal Appearance Services) Act 2003, infection control guidelines are given in relation to personal appearance services for the purpose of minimizing the risk of infection.
However the guidelines are not applicable in those which provided services in health care facilities. In addition acupuncture is not regarded as a personal appearance service. The Public Health Act 2005 chapter 4 provides inflection control guidelines in relation to health care services. The purpose of the guidelines is to set out rules in relation to the protection of clients and operators relying on contemporary infection control practices.
Q24.Are the following types of food premises required to have an accredited food safety program under the Food Act 2006? Explain your answers.
Definition of Policy from a Legislative Perspective
(a)– No as it is onsite catering and do not serve food which may cause hazard to the public health
(b)– No as it is onsite and cares of only 40 where the minimum limit is 200
(c)- No as it is onsite and cares of only 60 where the minimum limit is 200
(d)- No as it is onsite and cares of only 100 where the minimum limit is 200 on 12 occasions in a year
Answer 25
A food safety supervisor is required to complete a course which is nationally recognize and is specific in relation to the industry. The course has to be provided by a Registered Training Organisation like the Australian Institute of Food Safety. They must also have a Statement of Attainment which is provided where the course is completed successfully and has to be kept at the premises to produce before the Environmental Health Officers (EHOs) as and when required.
Q26.What types of disaster management plans are required to be created? What are the main purposes of each type of disaster management plan?
Answer 26
Disaster Management is an important area in relation to environmental health law.
The types of disaster management plan which needs to be created include
Types of Disaster Management plan Purpose
State disaster management plane
Plan for managing disasters for the state including events which are likely to happen to the state.
Disaster management plan for disaster districts
Plan for managing disasters for the disaster district for the group including events which are likely to happen to the district.
Disaster management plan for local government
Plan for managing disasters for the Local government’s area including events which are likely to happen to the area.
Q27.A baker is running low on gluten free flour, so he mixes regular flour with the gluten free flour to make loaves of bread. He places the cooked loaves of bread on racks with other product for sale and labels the loaves of bread as ‘gluten free’. Has he committed an offence? Explain your answer.
Answer 27
Yes, the baker has committed an offence in relation to part 2 section 34 of the Food Act 2006. According to the section a person is not allowed to falsely describe a food which is intended to be sold where the person knows or is reasonably expected to know that a consumer who may purchase the food based on the description may suffer health injury due to the false description. The person must also not sell food which he knows has been described falsely. The person is liable for 2 years imprisonment and a penalty of 2 years.
Factors Influencing Government Policy and the Development of Legislation
Q28.What requirements does a supermarket have to comply with when storing and selling cigarettes?
Answer 28
While storing and selling cigarettes a supermarket has to comply with certain provisions.
(a)Firstly the supermarket has to ensure that the while storing the cigarettes they are not visible to the customers in the cabinets.
(b)In relation to selling the cigarettes the supermarkets have to ensure that they are not sold to any minor person.
Answer 29
The person is not allowed to sell a controlled drug, poison or a restricted drug unless its packing complies with the required standard. Thus for constituting an offence under this section
(a)The goods must be controlled drug, poison or a restricted drug
(b)They must be not in compliance with the standards
(c)the non compliance has not been ratified by the chief executive
Q30.List the elements of the offence created bys.92 of the Public Health (Infection Control for Personal Appearance Services) Act 2003.
Answer 30
Section 29 of the Public Health (Infection Control for Personal Appearance Services) Act 2003 is in relation to the offence of tempering with ceased things. According to the section were access to a seized thing has been restricted by a authorized person, another person is not allowed to tamper with the thing, or anything which prevents access to the thing, without due approval of the authorized person
Thus the elements of the seized things include
1.the thing must be seized
2.access to the thing must be restricted
3.a person has attempted to or actually tampered the seized thing or anything related to i
Q31.State whether or not the following legislative references are correctly formatted. If they are not correct, explain what errors have been made and provide a correct reference.
Answer 31
a.Chapter 7 Part 1 of the Food Act 2006 (QLD) is about ‘authorised persons’. (Chapter and State Not Mentioned)
b.Division 3(1), s. 144 of the Health Act 1937 (QLD) details an inspector’s power to enter places.(Division and Subdivision and State not mentioned)
c.Part 2, Division 3 of the Pest Management Act 2001 (QLD) relates to applications for licences. (Correctly Formatted by state not mentioned)
d.SCHEDULE 2B of the Public Health Regulation 2005 specifies vaccine preventable conditions. (Schedule instead of section specifies vaccine preventable conditions and year of regulation not mentioned.)
Max. 10 lines
References: Food Act 2006 (QLD, Health Act 1937 (QLD), Pest Management Act 2001 (QLD), Public Health Regulation 2005
Q32.Show two correct ways to reference all of the provisions regarding ‘public health risks’ in the Public Health Act 2005. Use the full legislation title in your answer.
Answer 32
Chapter 8 s.61 of the Public Health Act 2005 (QLD)
Section 10 of the Public Health Act 2005 (QLD)
Q33.What is the maximum penalty in dollars for a person found guiltyof breaching s.240A(1) of theHealth (Drugs and Poisons) Regulation 1996?
The maximum penalty for violating Section 240(1)(a) of the Health (Drugs and Poisons) Regulation 1996 is 80 penalty units * $126.15 which is A$ 10092
Q34.Review the case Polywell Pty Ltd t/as Golden Palace Chinese Restaurant v Brisbane City Council, Environmental Health/Compliance & Regulatory Services [2016] QCAT 221 and answer the following questions.
a)Why did the QCAT member not place great weight on the information provided by one of the Environmental Health Officers that appeared before the Tribunal?
The court did not place great weight on the information provided by Ms Mitchell as it did not find the evidence being satisfactory. Although the audit report had been completed by her at the time of inspection she had limited memory in relation to the actual events of the day. In addition no photographs had been taken by her in relation to the observations through which independent observation could have been provided.
b)Why did the QCAT member consider the meaning of and previous interpretations of the term ‘fit and proper person’ when determining whether Polywell Pty Ltd was a ‘suitable person’ to hold a licence?
The QCAT member considered the previous interpretation of the term ‘fit and proper person’ when determining whether Polywell Pty Ltd is a ‘suitable person’ to hold the licence because the same issue had been considered by the case of Chief Executive, Department Tourism, Fair Trading and Wine Industry Development v 4 Play (Oz) P/L [2008] QCA 267 and as it is a higher court the doctrine of precedent would apply.
c)What factors were considered when deciding if Polywell Pty Ltd was a ‘fit and proper person’ or ‘suitable person’?
The court in relation to deciding if polywell Pty Ltd is a fit and proper person’ or ‘suitable person’ to hold the licence considered whether they had an appreciation of the responsibilities and discharge them then they are fit and proper person and if nit they are not considered as fit and proper person.
Q35.Identify and explain 3 errors in the Public Health Order provided in the quiz 1 folder. How could the notice be improved (i.e. identify opportunities for best practice)?
1.Name of the authorized person is not provided
2.Name, address and contact details of the issuing authority is not provided.
3.The nature of the problem is contained in section11(1)(a)(1) specifically and not section11(1)(a) and no mention of section 21 in relation to order of removing the problem
The public health order can be improved by ensuring that all relevant sections have been indentified and explained properly to the recipient. How the problem affects the public must also be mentioned in the health order.
References:
https://blackboard.qut.edu.au/bbcswebdav/pid-7316645-dt-content-rid-11041758_1/courses/PUN363_18se1/Modules%202018/PUN363%20Module%202%202018.pdf
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