Crown exemptions

The Public Health Act binds the Crown. This means the Crown is required to comply with the provisions of the Act and new regulations.

However, it is recognised that some Crown and Crown authorities may not be capable of achieving immediate compliance with the Act. This is because  improvements to infrastructure or service delivery to meet health requirements may only be achieved in the medium to long term.

The Act recognises that incremental measures may be required, and in appropriate circumstances the Minister for Health may exempt the Crown or a Crown authority from compliance with specific provisions of the Act or regulations.

A Crown authority wishing to seek an exemption under the Act should direct enquiries to publichealthact@health.wa.gov.au

What is meant by binding the Crown?

This means that the Act covers land held or administered by the Crown and its authorities. 

Whilst there are restrictions in the Act on the actions that can be taken by enforcement agencies in respect of the Crown, the legislation binds the Crown and therefore when the Crown cannot comply, it should provide reasons or seek an exemption from the Minister.

Who is responsible for enforcing the Act on Crown land?

Local government will primarily be the enforcement agency responsible for enforcing the Act on Crown land.

What are Crown exemptions?

The Crown or a Crown authority may submit a request to the Minister for Health seeking an exemption under Part 17 from compliance with the Act. 

An exemption may be granted from one or more provisions of the Act, or from one or more provisions of the regulations, or from a combination of both.

An exemption can be issued for a period of up to 10 years.

The Crown or a Crown authority may apply for an exemption by submitting a request in writing to the Minister.  The request should include a completed copy of the Department's preferred exemption request form and any other relevant documentation. 

Email the publichealthact@health.wa.gov.au for a copy of the exemption request form.

What Parts of the Act cannot be exempt?

An exemption cannot be provided for the following Parts of the Act:

  • Part 9 – Notifiable infectious diseases and related conditions
  • Part 11 – Serious public health incident powers
  • Part 12 – Public Health emergencies 
  • Part 15 – Inquiries
  • Part 16 – Powers of entry, inspection and seizure
  • Part 18 – Liability, evidentiary and procedural matters
  • Part 19 – Miscellaneous matters.
What criteria must be met to satisfy a request for an exemption?

The Minister is authorised to grant an exemption only if:  

“the Minister is satisfied that the Crown or, as the case requires, the Crown authority is unable to take the steps necessary to comply with the provision, whether because of a lack of financial or other resources or for any other reason.”

The Minister is required to obtain the advice and recommendations of the Chief Health Officer.  The Minister must have regard to that advice and those recommendations, but is not required to act in accordance with that advice and those recommendations.

The Minister may also attach conditions to an exemption.

An exemption can be issued for a period of up to 10 years. An exemption cannot be extended. However a new exemption may be created with the same terms or different terms. 

What are the contents of exemptions?

An exemption must specify the following:

(a) the exemption-holder

(b) the provisions of the Act and/or the regulations to which the exemption applies

(c) the terms of the exemption

(d) the conditions attached to the exemption (if any)

(e) the period for which the exemption is issued.

What is a compliance plan?

The Minister may attach a condition to an exemption requiring the exemption-holder to develop a compliance plan within a period specified in the exemption.

A compliance plan sets out the steps that the exemption-holder will take, by the time the exemption expires, to achieve full or partial compliance with the provisions of the Act or the regulations to which the exemption applies.

It is not a requirement to submit a compliance plan with a request for an exemption. However a draft compliance plan may support a case for exemption.

Development of a compliance plan

Prior to approving a compliance plan, the Minister must consult with the Minister responsible for the exemption-holder (unless the exemption-holder is a Minister).

The Minister may:

  • approve the compliance plan without modification
  • approve the compliance plan with any modifications that the exemption-holder and the responsible Minister (if any) agree to make
  • refuse to approve the compliance plan and direct the exemption-holder to submit a revised plan for approval.
Reviewing and amending compliance plans

Exemption-holders are required to review compliance plans annually.

An exemption-holder may amend or replace a compliance plan with a new compliance plan at any time. However, the Minister for Health must approve any new or amended plan.

Publication requirements

Exemption-holders must ensure that all current exemptions and compliance plans are readily available to the public without charge, including on a website maintained by or on behalf of the exemption holder and by any other means the exemption-holder considers appropriate.

Annual reporting obligations

The accountable authority of a Crown authority must include in its annual report submitted under Part 5 of the Financial Management Act 2006 details of each exemption held by the Crown authority and a report about the progress on the implementation of any compliance plan. 

If the exemption-holder does not have an accountable authority, the accountable authority of the Department of Health must include the specified information in its report submitted under Part 5 of the Financial Management Act 2006.