4. Legal Responses to the Health Impacts of Climate Change

The health impacts of climate change are predicted to create significant challenges for healthcare systems worldwide. Healthcare systems may need to adapt to the introduction of new illnesses in areas that do not have adequate surveillance and response infrastructure in place,^[1] and will need to be equipped with sufficient resources to meet the needs of people affected by extreme weather events, infectious disease outbreaks and other climate-related emergencies.^[2] Concerns about the capacity of healthcare systems to respond to the growing burden of climate change related illness and injuries (as well as the climate impacts of healthcare systems themselves) engages with health law, which is the area of law concerned with regulating healthcare systems and with the provision of healthcare.^[3] The role of law in addressing the health impacts of climate change at a population level engages with public health law, which is concerned with ensuring access to healthy living conditions, including through the adoption of climate change mitigation and adaptation strategies.^[4] Typically, public health laws establish public health functions at different levels of government and provide for inspection and regulation of facilities and local conditions posing a risk to public health, as well as granting significant powers in relation to infectious disease surveillance and control, including isolation, mandatory vaccination and treatment of those affected by specific infectious diseases.^[5] A central issue in public health law is balancing respect for individual rights and freedoms with the need to undertake infectious disease control functions that can involve the use of highly coercive measures,^[6] which was a crucial concern during the COVID-19 pandemic.^[7] Domestic public health laws are complemented by a global governance framework relevant to health, including international instruments such as the International Health Regulations^[8] and other policies and governance instruments developed by the WHO, as well as measures concerned with climate change and sustainability more broadly, such as the Sustainable Development Goals.^[9]

A. Public Health Law in Australia

• Australian public health laws date to the 19th century and were based on earlier British laws. While all states and territories have modernised their laws, some have engaged in broader reform, adopting flexible, principles-based approaches to regulation.
• Australian state and territory public health Acts generally assign primary responsibility for public health to state or territory health departments and set out the responsibilities of the chief health officer and other public health officials.
• In most states and territories, the public health Acts require public health planning to be undertaken at state, regional and/or local government levels.

Each Australian state has its own public health legislation, and institutional arrangements for its administration. Public health laws date back to the 19th century, with early public health legislation originating in the UK, followed by Australia and New Zealand.^[10] The original concerns of these laws were sanitation and hygiene, including the removal of ‘nuisances’ (insanitary or unhealthy environmental conditions), as well as the creation of penalties and offences for failing to comply with removal orders; the regulation or licensing of procedures or premises potentially presenting a risk to public health (eg hairdressers and tattooists); and infectious disease surveillance, reporting and control.^[11] Over time, these laws have expanded to encompass more modern threats to public health, including NCDs, and disaster and emergency management and response.^[12] Public health laws also typically establish state health departments as a central public health body (with a chief health officer and dedicated public health workforce within these departments), with some public health functions shared with local governments (usually exercised by environmental health officers at the local government level), although the exact arrangements differ between states.^[13]

The basic model of early public health legislation still informs contemporary laws in Australia.^[14] Beyond this basic model, there are significant differences in the content and structure of public health legislation in each Australian state. All states and territories have modernised their public health legislation in the past 25 years,^[15] but some states have gone further with reforms than others. Legislation in New South Wales, for example, is still primarily organised around specific, identified public health risks and infectious diseases.^[16] However, public health laws in other states have undergone more radical reform to create holistic, principles-based models, with greater flexibility to respond to newly emerging threats and disasters.^[17] The original concern of public health laws with ‘nuisances’ (such as sources of water pollution or noxious air) mean that these laws have long been concerned with environmental protection.^[18] Provisions on the surveillance and control of infectious diseases — a centrepiece of public health law — will also become increasingly important due to changes in the spread of infectious diseases and the rise of novel diseases linked to climate change,^[19] as will provisions on emergency management.^[20] However, public health laws with broader and more general objectives, principles, public health planning provisions and duties not to cause public health risks (as compared to narrowly defined ‘nuisance’ provisions),^[21] can provide a legislative framework that empowers state and local governments to introduce policies aimed at climate change mitigation and adaptation, and which promote public health.^[22] The next section explores how key provisions currently found in each state’s public health legislation can and are being used for these purposes.

B. The Role of Public Health Law in Addressing the Health Impacts of Climate Change

i. The Objectives and Principles of Public Health Legislation

Except for Tasmania, each state and territory public health Act contains an objectives provision, which lists a set of objectives relating to promoting public health and wellbeing and preventing disease and injury. These provisions are statements of what each Act aims to achieve, providing terms of reference and a guide for decision-making under the relevant Act.^[23] Some Australian public health Acts contain objectives relevant to climate change.^[24] The South Australian Act contains an object on ensuring a healthy environment, particularly for those ‘who live in disadvantaged communities’.^[25] Victoria’s Act has as one object, ‘promoting conditions in which persons can be healthy’,^[26] while the Northern Territory Act aims to ‘provide a flexible capacity to protect the health of particular individuals and communities in the Territory from emerging environmental conditions, or public and environmental health issues, that may impact on their health and wellbeing’.^[27]

Complementing such objectives, some state legislation contains guiding principles that are also relevant to climate change. The South Australian and WA Acts contain sustainability principles.^[28] For example, to further the objectives of the South Australian Public Health Act 2011 (SA) (and in administering the Act), s 8 provides that ‘[p]ublic health, social, economic and environmental factors should be considered in decision-making with the objective of maintaining and improving community well-being and taking into account the interests of future generations’. Section 6 also applies the precautionary principle (which has long informed international and national environmental laws) in a public health context,^[29] requiring that scientific uncertainty must not be used as a basis for postponing measures to prevent, control or abate material public health risks and setting out a process for ensuring that any action or decision-making that aims to protect public health is proportionate to the seriousness of the risk involved.

ii. State Public Health Infrastructure, Workforce and Planning

A key function of public health legislation is establishing a public health infrastructure and workforce within the relevant state government. These Acts also delineate public health functions between state and local governments.^[30] For example, administration of the NSW Public Health Act 2010 is shared between a chief health officer, who undertakes a range of public health functions specified under the Act, public health officers employed within the NSW Department of Health (‘NSW Health’)^[31] and ‘authorised officers’, who may be members of NSW Health or council employees.^[32] All states and territories have a chief health officer, a publicly appointed doctor and civil servant who provides advice to ministers and secretaries of health, and who speaks on the government’s behalf in relation to public health issues.^[33] The role of the chief health officer varies significantly between states, with some playing a significant role in infectious disease control, public health emergencies and pandemic management,^[34] and others (as in WA) leading state public health planning that in other states fall to the minister for health (described further below).^[35]

Under part 15 of the Public Health Act 2016 (WA), the WA Chief Health Officer can conduct inquiries ‘into any matter relating to public health’, either on their own initiative or at the request of the Minister.^[36] This provision was used to initiate the WA Climate Health Inquiry, which was announced in March 2019 and reviewed the planning and response capacity of WA’s health system in relation to the health impacts of climate change.^[37] The inquiry was led by a former WA chief health officer, and the resulting report made recommendations for adaptation and mitigation policies that could be adopted by the health sector.^[38] Under part 7 of the Act (which has yet to come into force under the staged implementation of WA’s new public health legislation), the chief health officer can also require a public health assessment to be undertaken of an ‘assessable proposal’ (to be defined under accompanying regulations) and advise on the public health risks that may arise if the proposal is implemented.^[39] An ‘assessable proposal’ will be one where there is overlap between issues of planning and development, environmental protection and public health, such as a mining development proposal.^[40] These provisions will be used for health impact and vulnerability assessments that will complement existing impact assessment and approval processes found under WA’s environmental legislation,^[41] potentially enabling a comprehensive evaluation of the climate change related health and environmental impacts of relevant proposals.

In addition to chief health officers, public health officers comprise a key part of the state public health workforce. Their powers vary, but they include ensuring environmental health, appointing environmental health officers within local government, monitoring air and water quality, drafting policies, and using enforcement powers under public health legislation, such as issuing improvement notices and enforcement notices, and undertaking investigations and seizures.^[42] Researchers argue that the provisions of public health legislation grant public health officers numerous powers that could be used to prevent greenhouse gas emissions and the health harms that result.^[43] The kinds of functions that public health officers could undertake include monitoring and publicising the links between ambient temperature, air and water quality and health impacts; strengthening links between public health and other departments such as energy and environment; and ensuring a health-in-all-policies approach is taken in relation to policies that impact greenhouse gas emissions.^[44] However, the authors acknowledge that the role of public health officers is constrained by Ministerial oversight and direction and that using public health legislation in this manner ‘will require creative use of definitions and provisions within the Acts’, as well as negotiation with the relevant health Minister.^[45] Accordingly, while public health laws empower public health officers to act on climate change, it may be difficult or politically infeasible for them to do so.

Most states’ public health Acts provide for public health planning, undertaken at state, regional and/or local government levels. For example, under s 50 of the Public Health Act 2011 (SA), the Minister for Health must prepare a public health plan setting out principles and policies for achieving the objects of, and implementing principles established under, the Act. The plan must (among other things) comprehensively assess the state of public health in South Australia, identify existing and potential public health risks and develop strategies for addressing and eliminating or reducing those risks, and identify opportunities and outline strategies for promoting public health.^[46]

State public health plans offer the opportunity to quantify climate-related public health risks at a state level, and to identify strategies for addressing those risks. The Victorian Public Health and Wellbeing Plan 2023–27 identifies ‘[t]ackling climate change and its impacts on health’ as one of 10 priority areas, recognising that climate change mitigation and adaptation strategies can create conditions that benefit a range of health and wellbeing outcomes.^[47] For example, initiatives to increase active transport reduce transport-related emissions, improve air quality and produce opportunities for physical activity.^[48] The Victorian plan aims to increase action to reduce greenhouse gas emissions ‘at a scale and pace required to reduce the impacts on health and wellbeing and realise associated health co-benefits’, create resilient and safe communities that can adapt to the public health impacts of climate change, and accelerate action to support communities to adapt to the public health impacts of climate change.^[49] Targeted strategies will be implemented via related state and regional plans. Victoria’s use of its state public health plan to identify and address the health impacts of climate change could be a model for similar use in other states.^[50]

iii. The Role of Local Governments under Public Health Legislation

Public health laws in Victoria, WA and South Australia require local governments to develop their own public health plans,^[51] enabling local governments to act on climate change and its health impacts. For example, under s 26 of the Public Health and Wellbeing Act 2008 (Vic), councils must prepare a municipal public health and wellbeing plan that identifies goals and strategies for maximising the health and wellbeing of local communities, provides for community input in the plan’s development and implementation, and considers the state Public Health and Wellbeing Plan (which identifies climate change as a priority area, as described earlier). Other Victorian legislation reinforces the need for local government action on climate change and health, with the Climate Change Act 2017 (Vic) requiring local governments to consider climate change when undertaking public health planning.^[52] This Act integrates consideration for climate change into government decision-making, as well as setting a long-term greenhouse gas emissions reduction target and requiring the preparation of a state climate change strategy.^[53]

The Victorian Department of Health has prepared guidance for local governments on tackling climate change and its health impacts through each stage of the public health planning process, with specific discussion of local governments’ role in emergency and disaster preparedness, response and recovery; environmental health services, surveillance and control; planning and design of local environments; healthy, sustainable and equitable food systems; improving mental health; and preventing violence.^[54] As an example, City of Melbourne’s Municipal Public Health and Wellbeing Plan identifies the health impacts of climate change as a 2021–25 focus area,^[55] with the accompanying action plan identifying initiatives such as supporting the development of a circular economy, reducing food waste and mitigating urban heat.^[56] Under South Australia’s public health legislation, local governments are also required to develop public health plans that consider environmental issues,^[57] with many choosing to include information on the health impacts of climate change.^[58]

Within local governments, environmental health officers (‘EHOs’) form an important part of the public health workforce and administer a range of health-related legislative functions on behalf of councils, including those under tobacco control, environmental protection, drinking water and food laws.^[59] EHOs are involved in a wide range of regulatory and planning activities, including recreational water monitoring, responding to public health complaints, legionella control and developing stormwater management plans.^[60] EHOs and environmental health teams within councils are already responding to the day-to-day impacts of climate change and will increasingly be called on to do so as these impacts increase.^[61] This could include, for example, increases in blue-green algal blooms in council-managed recreational water bodies due to lower water levels and increased temperatures.^[62] Environmental health teams in councils also play a leading role in emergency management preparedness, response and recovery associated with events such as bushfires and floods.^[63] However, research on the functions of EHOs suggest they currently play a limited role in climate change mitigation and planning, with these functions typically undertaken by other teams and specialists within council, such as environmental services.^[64] This may also suggest a lack of health input in councils’ climate change adaptation and mitigation strategies.^[65]

There is growing recognition that EHOs are an untapped resource in climate change adaptation planning, given their professional skills and knowledge in environmental health and risk assessment.^[66] However, EHOs face significant hurdles in expanding their role into climate change adaption, including legislative constraints and a focus on the investigative and regulatory functions required by public health legislation, as well as a lack of visibility and capacity.^[67] Overall, local governments are a crucial first line of defence in local public health preparedness and response,^[68] but local governments’ capacity to engage functions such as disaster preparedness and response is extremely variable.^[69]