Part 3 General public health duty

The centrepiece of the Act is the legal duty on all persons to conduct their activities in a way that does not cause harm to the health of others. 

This statutory duty is the key element of the risk based approach of the Act. It requires a person to conduct their activities in a way that does not cause harm to other people. This includes activities that may have adverse impacts and effects on a person’s physical or psychological wellbeing. 

What is the general public health duty?

The general public health duty requires that:

A person must take all reasonable and practicable steps to prevent or minimise any harm to public health that might foreseeably result from anything done or omitted to be done by the person.

In essence, we all have a legal responsibility to protect other people from harm.

If a person is found to breach the general duty by putting other people's health at risk, further enforcement action can be taken under the Act.

The general duty is capable of capturing known public health risks as well as new and emerging threats.

Why have a general public health duty?

The purpose of the general public health duty is to:

  • prevent public health incidents from occurring
  • ensure individuals are responsible for public health activities and
  • most importantly, not to cause harm to the health of other people including adverse impacts and effects on a person’s physical or psychological wellbeing

The general public health duty is capable of capturing known public health risks as well as new and emerging threats.

The general public health duty is a forward-thinking approach designed for the needs of the 21st century. It imposes a duty on every person in Western Australia to ensure that their actions (including any omissions) do not cause harm to the health of others. The general public health duty is purposefully drafted in very broad terms to capture anything that adversely impacts upon public health, regardless of the cause.

The general duty overcomes the limitations of the Health Act 1911 because it is not prescriptively limited and is able to be applied to emerging and unforeseen risks that may cause harm to public health.

This ensures the Public Health Act will continue to be relevant as societal needs, requirements and expectations evolve and change. In this way, the general public health duty is the mechanism that operates to “future proof” the legislation.

Who does the general duty apply to?

The general duty applies to any person whose activities might harm public health. The general duty is best applied in circumstances where:

  • the risk is not prescribed under a regulation or
  • there is a new, emerging or unknown risk.

 Who determines if there has been a breach of the general duty?

Authorised officers will administer the general duty requirements. It is important for authorised officers to have the appropriate training and experience to be able to make informed, professional judgements about what constitutes a public health risk and harm to public health.
Is the Public Health Act the right tool?

It is acknowledged that the general duty is versatile and potentially wide ranging. Therefore, one of the first questions to consider is whether the Public Health Act is the right tool to address the particular circumstances. A possible risk to public health does not necessarily mean that the Public Health Act is the right legislation or that the local government is the appropriate authority to respond.

There may be another Act to address the circumstance, for example the

  • Food Act 2008
  • Environmental Protection Act 1986
  • Radiation Safety Act 1975 or
  • Local Government Act 1995.

Depending on the nature of the circumstances, it may also be more appropriate for other agencies to take action, for example WorkSafe, Department of Environment Regulation etc.

Where the general duty is to be applied, there must be some clear harm to public health. In cases where matters are a nuisance or amenity problem but no harm or health effect can be proven, such as unsightly yards or neighborhood disputes, the general duty will not apply.

Is the public health risk prescribed in a regulation?

Where the risk of harm or public health risk activity is prescribed in a regulation, the matter can be dealt with in accordance with that regulation and not under the general duty.

For example, it is anticipated that regulations under the new Act will provide additional requirements in relation to public health risk activities common to WA such as:

  • asbestos
  • pesticides
  • body art and personal appearance services, and
  • water quality.

Assessing if there has been a breach of the general public health duty

Assessing whether a breach of the general duty has occurred requires professional judgement by an authorised officer. An authorised officer will be confronted by numerous circumstances in the course of their duties that may be categorised as harm to public health.

In each circumstance, an authorised officer should undertake an assessment to gather the information (evidence) necessary to support a professional opinion.