On 03 June 2021, the Parliament of Fiji passed the Public Health (Amendment) Act 2021. The Amendment Act introduces amendments (amendments) to Part 7 of the Public Health Act of 1935 (the Act) which deals with all matters relating to infectious diseases.

While the background and explanatory notes of the amendments relate largely to the current Covid-19 coronavirus outbreak, the amendments in fact relate to all infectious diseases under Part 7 of the Act including Covid-19.

In this commercial law update we explain the amendments and provide our comments in relation to the amendments by way of guidance and to assist in the current situation that requires all Fijians to work together to do what we can to reduce the transmission of this virus and get back to the way we want to.

Amendments

During this Covid-19 pandemic, the Health Minister (Minister) and the Permanent Secretary (PS) have largely been issuing orders and notices as they are empowered to do under Part 7 of the Act in order to contain the spread or transmission of the Covid-19 virus. These orders and notices include declaring curfew hours and areas of containments.

The amendments are intended to strengthen the enforcement of those orders and notices by the issuance of infringement notices.

In brief, the amendments to the Act are:

1. An authorised person, including a police officer, can now issue infringement notices to a person believed to have committed an offence under Part 7 of the Act or in breach of any orders or notices issued under Part 7 of the Act that relates to infectious diseases.
   
   
2. The minister may make regulations relating to the issuance of the infringement notices under Part 7 including the offences and penalties that the infringement notice may be issued for.

Comments

The amendments provide the minister with a wide discretion of what he may include as offences and the penalties for those offences. The use of infringement notices is a common regulatory or enforcement tool to enable regulations to be enforced. A common area that infringement notices are issued includes but is not limited to traffic offences, and fishing offences. In our view infringement notices may be a useful tool in the requirement to ensure important public health measures are abided by.

At the time of writing this article, the minister has yet to make any regulation that describes any new offences and penalties that the infringement may be issued for. The only penalties that have been provided so far in the amendments is the liability to pay a late payment fee or closure of businesses.

There is also no regulation yet as to the form and administrative procedures for infringement notices.

While the amendments refer to further offences that may be prescribed at a later stage, it also suggests that infringement notices can be issued for “offences under this Part” of the Act, meaning existing offences already existing under Part 7 or notices and orders issued under Part 7.

If our interpretation of the amendment is correct, care should be taken because the new amendment may be contrary to the existing offences under Part 7 of the Act because a person can only be liable for those existing offences including breach of curfews, upon conviction and not through an infringement notice.

Conclusion

While there is an urgent need to legally strengthen the enforcement of the health and safety measures during this pandemic, it is equally important to have the necessary system and infrastructure in place.

The introduction of infringement notices will no doubt require some development or changes in the administration aspect of things so it will be interesting to review the regulations once they are issued.

It will also be of interest to review the offences that are under the regulations and the penalties for those offences. It may be that infringement notices become an either or option at the authorised officer's discretion when faced with a person in breach of the Act.

It is to be noted that while offences are usually determined by an Act and not necessarily by regulations or discretion of a minister, the Act does provide powers to the minister to do all such things as the minister may deem necessary for the protection of public health from infectious diseases. Perhaps this signifies the nature of infectious diseases, the practicality and urgency required to stop the transmission and outbreak of such diseases and the ultimate purpose or consideration of any act made under Part 7 is for the purpose protecting public health.

Disclaimer: This article is for interest and discussion purposes only and should not be relied on for any decision making. This update is not, and nor should be construed as legal advice. We may provide follow up comments following any regulation gazetted as per the amendments.