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TASMANIA
__________
MISUSE OF DRUGS AMENDMENT (DRUG ANALYSIS)
BILL 2018
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Part 4A inserted
Part 4A - Drug analysis
38J. Objects of Part
38K. Interpretation
38L. Drug Analysis Advisory Committee established
38M. Advisory Committee membership and meetings
38N. Offences non-applicable for drug analysis
38O. Permit for drug analysis operation
38P. Licencing a drug analysis service
5. Repeal of Act
[Bill ]
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MISUSE OF DRUGS AMENDMENT (DRUG ANALYSIS)
BILL 2018
(Brought in by Rosalie Ellen Woodruff MP)
A BILL FOR
An Act to amend the Misuse of Drugs Act 2001 to provide for the
lawful delivery of drug analysis services
Be it enacted by Her Excellency the Governor of Tasmania, by and
with the advice and consent of the Legislative Council and House of
Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Misuse of Drugs Amendment
(Drug Analysis) Act 2018.
2. Commencement
This Act commences on the day on which this Act
receives the Royal Assent.
3. Principal Act
In this Act, the Misuse of Drugs Act 2001* is referred to
as the Principal Act.
4. Part 4A Inserted
After section 38I of the Principal Act, the following part
is inserted:
Part 4A - Drug analysis
38J. Objects of Part
The Objects of this Part are -
*No. 94 of 2001
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(a) to reduce injury, fatality and harm
associated with the use of a controlled
drug;
(b) to provide a framework for the lawful
administration and use of drug analysis
services; and
(c) to provide for robust, evidence-based
standards ensuring the delivery of safe,
high quality drug analysis services.
38K. Interpretation
In this Part -
Advisory Committee means the Drug
Analysis Advisory Committee established
under section 38L;
analysis technology means a technique used
for determining the contents of a controlled
drug, including but not limited to
spectroscopy, mass spectrometry, and liquid
chromatography techniques;
approved analysis technology means an
analysis technology approved under section
38L.
authorised drug analysis service means -
(a) a drug analysis operation permitted
under section 38O; and
(b) a drug analysis service licenced under
section 38P;
drug analysis means the use of an analysis
technology to determine the contents of a
controlled drug;
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drug analysis operation means a scheduled,
finite-term delivery of a drug analysis service
in a set venue or location;
drug analysis service means the delivery of
drug analysis to a third party or parties.
38L. Drug Analysis Advisory Committee
established
(1) There is established a Drug Analysis
Advisory Committee consisting of -
(a) a person appointed as chairperson of
the Advisory Committee; and
(b) a person nominated by the
Commissioner of Police; and
(c) a person nominated by the Secretary of
the responsible Department in relation
to the Public Health Act 1993; and
(d) a person to represent paramedics
nominated by the Secretary of the
responsible Department in relation to
the Ambulance Service Act 1982; and
(e) a person nominated by the Alcohol,
Tobacco and other Drugs Council of
Tasmania; and
(f) a general practitioner with experience
in drug addiction treatment nominated
by the Tasmanian branch of the Royal
Australian College of General
Practitioners; and
(g) a person to represent drug analysis
service providers nominated by Harm
Reduction Australia; and
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(h) a person with experience of controlled
substance use to represent users of
controlled substances; and
(i) a person to represent event organisers
who host, or intend to host, drug
analysis operations; and
(j) a person with detailed technical
knowledge of analysis technology.
(2) The members are appointed by the Minister.
(3) A member of the Advisory Committee may,
with the approval of the Minister, appoint a
person nominated by the organization which
the member represents as their deputy.
(4) The Secretary of a responsible Department
referred to in paragraph (b), (c) or (d) of
subsection (1) may, with the approval of the
Minister, appoint a person as a deputy to the
person nominated in paragraph (b), (c) or (d)
of subsection (1) .
(5) If a body referred to in paragraph (e), (f) or
(g) of subsection (1) changes its name, the
Minister may, by order, amend that
paragraph by substituting the body's new
name.
(6) If a body referred to in paragraph (e), (f) or
(g) of subsection (1) ceases to exist, the
Minister, on the recommendation of the
Advisory Committee, may, by order, amend
that paragraph by substituting the name of a
body which the Minister is satisfied
substantially represents the interests
represented by the first-mentioned body.
(7) The Advisory Committee has the following
functions:
(a) to advise the Minister on any matter
generally relating to drug analysis;
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(b) to advise the Minister on any specific
matter relating to drug analysis as
requested by the Minister;
(c) to review the operation of this Part;
(d) to provide recommendations to the
Minister to further the objectives of
this Part;
(e) to provide advice on the formulation
of regulations under this Part;
(f) any functions imposed by this Act;
(g) any other functions the Minister may
determine.
(8) For the purposes of giving advice under this
section, the Advisory Committee may
consult any parties it considers appropriate.
(9) The Advisory Committee may declare an
analysis technology to be an approved
analysis technology if the analysis
technology meets prescribed criteria.
(10) An approval for an analysis technology may
be revoked if the Advisory Committee is
satisfied that new evidence indicates the
analysis technology no longer meets
prescribed criteria, or a change in
prescribed criteria results in the analysis
technology no longer meeting prescribed
criteria.
38M. Advisory Committee membership and
meetings
(1) A member of the Advisory Committee, other
than a member appointed under section 38L
subsection (1) (b), (c) or (d), is to be
appointed for such term, not exceeding 3
years, specified in the instrument of
appointment.
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(2) The holder of an office who is required under
any Act to devote the whole of their time to
the duties of that office is not disqualified
from holding that office and also the office
of a member or accepting any remuneration
payable to a member.
(3) A member of the Advisory Committee is to
be paid such remuneration, expenses and
allowances as the Minister may determine,
but no such determination applies in respect
of a member of the Advisory Committee
who holds office in the State Service unless
the Minister administering the State Service
Act 2000 approves of the determination.
(4) The provisions of the State Service Act 2000
do not apply to, or in respect of, the
appointment of a member of the Advisory
Committee and a member of the Advisory
Committee is not, in their capacity as such a
member, subject to the provisions of that Act
during their term of office.
(5) The Minister may appoint any person to act
in the office of the chairperson or appoint
any person to act in the office of a member
of the Advisory Committee other than the
chairperson while the chairperson or that
member of the Advisory Committee, as the
case may be, is absent from office through
illness or any other cause.
(6) A member of the Advisory Committee other
than the chairperson is, for the purposes of
subsection (5), taken to be absent from their
office if the member is acting in the office of
chairperson under subsection (5).
(7) A member of the Advisory Committee is, for
the purposes of subsection (5), taken to be
absent from their office if there is a vacancy
in that office which has not been filled in
accordance with subsection (10).
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(8) The office of a member of the Advisory
Committee becomes vacant -
(a) when the member dies; or
(b) if the member becomes bankrupt,
applies to take the benefit of any law
for the relief of bankrupt or insolvent
debtors, compounds with their
creditors or makes an assignment of
their remuneration or estate for their
benefit; or
(c) if the member is convicted in
Tasmania of a crime or offence which
is punishable by imprisonment for a
period of not less than 12 months, or if
the member is convicted elsewhere
than in Tasmania of an offence which,
if committed in Tasmania, would be a
crime or an offence so punishable; or
(d) if the member resigns their office by
writing under their hand addressed to
the Minister and the Minister accepts
the resignation; or
(e) if the member is removed from office
by the Minister under subsection (9).
(9) The Minister may remove from office a
member of the Advisory Committee if -
(a) the Minister is satisfied that the
member is unable to perform
adequately or competently the duties
of the member's office; or
(b) the Minister is satisfied that the
member no longer meets the criteria
for their appointment under section
38L subsection (1); or
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(c) if the member is appointed under
section 38L subsection (1) paragraph
(e), (f) or (g) if the nominating body
recommends the removal of that
member; or
(d) the member is absent from 2
consecutive meetings of the Advisory
Committee without the permission of
the other members of the Advisory
Committee; or
(e) the member becomes bankrupt, applies
to take the benefit of any law for the
relief of bankrupt or insolvent debtors,
compounds with the member's
creditors or makes an assignment of
the member's remuneration or estate
for their benefit; or
(f) the member is convicted, in Tasmania
or elsewhere, of a crime or an offence
punishable by imprisonment for 12
months or longer.
(10) On the occurrence of a vacancy in the office
of a member of the Advisory Committee
otherwise than by the expiration of the term
for which the member was appointed, the
Minister may appoint a person to the vacant
office for the balance of their predecessor's
term of office.
(11) A member of the Advisory Committee is not
personally liable for an honest act or
omission in the performance or the purported
performance of functions, or exercise or
purported exercise of powers, under this Act.
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(12) An act or proceeding of the Advisory
Committee or of a person acting under the
direction of the Advisory Committee is not
invalid by reason only that at the time when
the act or proceeding was done, taken or
commenced, there was a vacancy in the
membership of the Advisory Committee.
(13) An act or proceeding of the Advisory
Committee or of a person acting under the
direction of the Advisory Committee is valid
and has effect, even if -
(a) the appointment of a member of the
Advisory Committee was defective; or
(b) a person appointed as a member of the
Advisory Committee was disqualified
from acting as, or incapable of being,
such a member.
(14) In any proceedings by or against the
Advisory Committee, unless evidence is
given to the contrary, proof is not required of
-
(a) the constitution of the Advisory
Committee; or
(b) any resolution of the Advisory
Committee; or
(c) the appointment of any member of the
Advisory Committee; or
(d) the presence of a quorum at any
meeting of the Advisory Committee.
(15) Meetings of the Advisory Committee may be
convened by the chairperson of the Advisory
Committee or by any 3 members of the
Advisory Committee.
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(16) The quorum at any convened meeting of the
Advisory Committee is half the number of
the total members plus one member.
(17) Questions arising at a meeting of the
Advisory Committee are to be determined by
a majority of votes of the members of the
Advisory Committee present and voting.
(18) The Advisory Committee must keep full and
accurate minutes of the proceedings at each
of its meetings.
(19) The chairperson of the Advisory Committee
or, in the absence of the chairperson, the
person acting in the office of chairperson is
to preside at a meeting of the Advisory
Committee.
(20) If the chairperson of the Advisory
Committee or their deputy is not present at a
meeting of the Advisory Committee a
member elected by the members present is to
preside at that meeting.
(21) Subject to this Act, the Advisory Committee
may regulate the calling of, and the conduct
of business at, its meetings as it considers
appropriate.
(22) The Advisory Committee may permit
members to participate in a particular
meeting, or all meetings, by -
(a) telephone; or
(b) video conference; or
(c) any other means of communication
approved by the Advisory Committee.
(23) A member who participates in a meeting
under a permission granted under subclause
(2) is taken to be present at the meeting.
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(24) The Advisory Committee may allow a
person to attend a meeting for the purpose of
advising or informing it on any matter.
(25) If the majority of members appointed sign a
document containing a statement that they
are in favour of a resolution of a matter in the
terms set out in the document, a resolution in
those terms is taken to have been passed at a
meeting of the Advisory Committee held on
the day on which the document is signed or,
if the members do not sign it on the same
day, on the day on which the last of the
members signs the document.
(26) If a resolution is taken to have been passed
under subclause (25), each member is to be
advised immediately of the resolution and
given a copy of the terms of the resolution.
(27) For the purposes of subclause (25) , 2 or
more separate documents containing a
statement in identical terms, each of which is
signed by one or more members, is taken to
constitute one document.
38N. Offences non-applicable for drug analysis
(1) A person is not guilty of an offence under
this Act if their conduct is necessary or
reasonable for the purposes of delivering an
authorised drug analysis service.
(2) A person is not guilty of an offence under
this Act if they are utilising the services of an
authorised drug analysis service, or acting
with the clear intention of utilising the
services of an authorised drug analysis
operation, insofar as their conduct is
necessary or reasonable for the purposes of
utilising a drug analysis service.
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(3) For the purposes of subsections (1) and (2) a
drug analysis service is taken to be an
authorised drug analysis if the person could
reasonably have assumed that the drug
analysis service was an authorised drug
analysis service.
(4) Subsection (2) does not apply to a person in
possession of a trafficable quantity of a
controlled substance.
38O. Permit for a drug analysis operation
(1) A person or organisation may apply in
writing to the Commissioner of Police for a
permit to conduct a drug analysis operation
or operations.
(2) An application under subsection (1) must be
lodged at least 30 days before a drug analysis
operation is to take place and contain the
location or locations, and date or dates that
the drug analysis operation or operations are
to be conducted, as well as any required
information and evidence that is prescribed.
(3) The Commissioner of Police must as soon as
practicable, within 30 days, assess an
application lodged under subsection (2).
(4) If assessment under subsection (3) indicates
full compliance then the applicant must be
issued a permit.
(5) If assessment under subsection (3) indicates
non-compliance then the Commissioner of
Police must inform the applicant of the
details of non-compliance and either request
further evidence, or request that the applicant
re-submit an application.
(6) A permit may only apply to drug analysis
operations outlined in the application.
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(7) A permit may not be issued for a drug
analysis operation more than a year in
advance of the date of the drug analysis
operation.
(8) A permit is to contain such conditions,
restrictions and requirements as is
prescribed.
(9) If the conditions of the permit are breached a
person responsible for the drug analysis
operation is liable for a prescribed penalty, if
a penalty for the breach is prescribed.
(10) A person or organisation may have a permit
revoked in writing by the Commissioner of
Police if the Commissioner of Police is
satisfied that the person or organisation no
long meets prescribed criteria.
(11) For the avoidance of doubt a person or
organisation that has had a permit revoked
under subsection (10) may reapply under
subsection (1) or may apply for a licence
under section 38P.
(12) Subsection (11) notwithstanding, if a
prescribed major violation occurs then the
organisation or person may be ineligible to
conduct drug analysis under this Part for a
prescribed period, at the discretion of the
Commissioner of Police.
38P. Licencing a drug analysis service
(1) An organisation may apply for a licence for
the purposes of delivering a drug analysis
service.
(2) An application under subsection (1) is to
contain such information and evidence as is
prescribed.
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(3) The Commissioner of Police must as soon as
practicable, within 90 days, assess an
application lodged under subsection (2).
(4) The Commissioner of Police may require
verification of information contained within
an application, including but not limited to
assessing a site or equipment.
(5) Verification under subsection (4) may
include a verification made by a third party
at the applicant's own expense.
(6) If assessment under subsection (3) or (4)
indicates full compliance then the applicant
must be issued a licence.
(7) If assessment under subsection (3) or (4)
indicates non-compliance then the
Commissioner of Police must inform the
applicant of the details of non-compliance
and either request further evidence, or
request that the applicant re-submit an
application.
(8) A licence is to contain such restrictions,
conditions and requirements as is prescribed.
(9) If the conditions of the licence are breached a
person responsible for the drug analysis
service is liable for a prescribed penalty, if a
penalty for the breach is prescribed.
(10) An organisation may have its licence
revoked in writing by the Commissioner of
Police if the Commissioner is satisfied that
the organisation no long meets prescribed
criteria.
(11) For the avoidance of doubt a person or
organisation that has had a licenced revoked
under subsection (10) may reapply under
subsection (1) or may apply for a permit
under section 38O.
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(12) Subsection (11) notwithstanding, if a
prescribed major violation occurs then the
organisation or person may be ineligible to
conduct drug analysis under this Part for a
prescribed period, at the discretion of the
Commissioner of Police.
5. Repeal of Act
This Act is repealed on the three hundred and sixty fifth
day from the day on which all of the provisions of this Act
commence.
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