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Drugs, Poisons and Controlled
Substances Amendment (Medically
Supervised Injecting Centre) Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill.
The purpose of the Bill is to amend the Drugs, Poisons and
Controlled Substances Act 1981 to provide for the licensing,
for a trial period and at a single specified site, of the operation
of a single medically supervised injecting centre for certain kinds
of drugs of dependence.
Clause 2 provides for the Bill to commence on a day or days to be
proclaimed, or on 31 October 2018 if not proclaimed before that
date.
Clause 3 provides that in the Bill, the Drugs, Poisons and Controlled
Substances Act 1981 is called the Principal Act.
Clause 4 inserts new definitions into section 4(1) of the Principal Act.
Many of these definitions are used only in new Part IIA, which is
inserted by clause 7 and which provides for the trial of the
medically supervised injecting centre.
Clause 5 inserts new section 41(5) after section 41(4) of the Principal Act.
New section 41(5) provides that an authority that provides for a
person to exercise and perform the powers, duties and functions
of an authorised officer may be limited by the Secretary to the
exercise and performance of powers, duties, and functions for the
purposes of new Part IIA and any regulations made for the
purposes of new Part IIA.
581464 1 BILL LA INTRODUCTION 31/10/2017
Clause 6 inserts new section 42(1)(ad) before section 42(1)(b) of the
Principal Act.
New section 42(1)(ad) allows any authorized officer, for the
purpose set out in section 42(1) of the Principal Act and with
such assistance as the officer thinks necessary at any reasonable
time, to enter upon the permitted site and the licensed medically
supervised injecting centre, and to exercise any powers under
section 42 of the Principal Act. This new provision states that this
new power is only exercisable if a medically supervised injecting
centre licence has been issued.
New section 42(1)(ad) states that this entry must be to ascertain
whether Part IIA, the regulations made for purposes of Part IIA,
the medically supervised injecting centre licence and the internal
management protocols are being complied with.
The new note under new section 42(1)(ad) refers to section 50 of
the Principal Act. That section provides that no authorized officer
shall be in any way liable to any penalty in respect of anything
done by him or her in the exercise of any power or in the
performance of any duty conferred or imposed upon him or
her pursuant to the provisions of the Principal Act and the
regulations.
Clause 7 inserts new Part IIA after Part II of the Drugs, Poisons and
Controlled Substances Act 1981
Part IIA--Trial of medically supervised injecting centre
New Part IIA provides for matters relating to the trial of the
medically supervised injecting centre.
Division 1--Preliminary
New Division 1 provides for preliminary matters, including
the object of new Part IIA and the meaning of director and
supervisor of the licensed medically supervised injecting centre.
New section 55A outlines the object of new Part IIA. The object
is to provide for the trial of a medically supervised injecting
centre as part of a scheme that aims--
• to reduce the number of avoidable deaths and the harm
caused by overdoses of drugs of dependence;
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• to deliver more effective health services for clients of
the licensed medically supervised injecting centre by
providing a gateway to health and social assistance
which includes drug treatment, rehabilitation support,
health care, mental health treatment and support and
counselling;
• to reduce attendance by ambulance services, paramedic
services, emergency services and attendances at
hospitals due to overdoses of drugs of dependence;
• to reduce the number of discarded needles and syringes
in public places and the incidence of injecting of drugs
of dependence in public places in the vicinity of the
licensed medically supervised injecting centre;
• to improve the amenity of the neighbourhood for
residents and businesses in the vicinity of the licensed
medically supervised injecting centre; and
• to assist in reducing the spread of blood-borne diseases
in respect of clients of the licensed medically supervised
injecting centre, including, but not limited to, HIV
and hepatitis C.
New section 55B sets out the meaning of a director or a
supervisor of the licensed medically supervised injecting centre.
New subsection (1) provides that a registered medical
practitioner is the director of the licensed medically supervised
injecting centre if--
• the practitioner is appointed by the licensee to oversee
the centre's operations generally, and to ensure
compliance with the internal management protocols and
the conditions imposed on the medically supervised
injecting centre licence;
• no other registered medical practitioner is appointed by
the licensee to perform that role; and
• the practitioner is not a supervisor.
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New subsection (2) provides that a registered medical
practitioner is a supervisor of the licensed medically supervised
injecting centre if--
• the practitioner is appointed by the licensee or the
director to oversee the centre's clinical operations
(but not the centre's operations generally) and to
ensure the adequacy of the clinical procedures used at
the centre;
• whether or not the practitioner undertakes (and does not
only oversee) any clinical activities at the centre; and
• whether or not any other registered medical practitioner
is appointed by the licensee or the director to perform
that role.
New subsection (3) clarifies that a reference to the director or a
supervisor of the licensed medically supervised injecting centre
includes a reference to a registered medical practitioner acting in
that role during any illness or other absence of a person appointed
to that role, or while there is a vacancy in that role.
New subsection (4) provides that the director, and each
supervisor, of the licensed medically supervised injecting centre
is taken to be a member of the staff of the licensed medically
supervised injecting centre.
Division 2--Medically supervised injecting centre
New Division 2 provides for matters relating to the licensing of
the medically supervised injecting centre, including the trial
period and conditions of the licence, the internal management
protocols, disciplinary action for contravening the licence
conditions or internal management protocols, and the Secretary's
power to revoke the licence.
New section 55C provides for the issue of the medically
supervised injecting centre licence.
New subsection (1) permits the Secretary to issue to an entity a
licence for the purposes of new Part IIA for a facility at the
permitted site.
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New subsection (2) sets out restrictions on the issue of the
medically supervised injecting centre licence. A licence must
not be issued unless the Secretary has approved, under new
section 55E, internal management protocols for the proposed
licensee, and the Secretary is satisfied that any other prescribed
requirements have been satisfied.
New subsection (3) provides the Secretary with the discretion to
refuse to issue the medically supervised injecting centre licence
to an entity for any reason the Secretary thinks fit.
New subsection (4) provides that the Secretary may impose
conditions on the licence on issuing it.
New subsection (5) provides that the functions and powers of the
Secretary under new section 55C are not delegable.
New section 55D provides that only one medically supervised
injecting centre licence may be issued.
New section 55E provides for the internal management protocols.
New subsection (1) provides that, for the purposes of determining
whether to issue the medically supervised injecting centre licence
for a facility at the permitted site, the Secretary must consider
whether to approve draft internal management protocols that are
given to the Secretary by or on behalf of that entity.
New subsection (2) allows the Secretary to approve the draft
internal management protocols if satisfied that they are sufficient
to support the issuing of the medically supervised injecting centre
licence.
New subsection (3) provides that, in determining whether to
approve the draft internal management protocols, the Secretary
must have regard to whether, if the medically supervised
injecting centre licence were issued for the facility, the draft
protocols would contain certain requirements. These
requirements include that the centre must have a director and
must be under the supervision of a supervisor at all times.
These requirements also include that the centre must be operated
so as to facilitate access or referrals to--
• primary health care services, including, but not limited
to, mental health services, medical consultation and
medical assessment services;
• drug and alcohol treatment services;
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• health education services;
• opioid substitution treatment services;
• services for testing for blood-borne diseases and
sexually transmitted diseases; and
• services involving a needle and syringe exchange
program.
Other requirements are that--
• procedures must be established to ensure that children
do not seek entry to the centre;
• the health and safety of staff of the centre and persons
attending the centre must be protected, having regard to
the design and services of the centre; and
• the services must be available, and procedures
established, to ensure compliance with the requirements
of new Part IIA, the regulations made for the purposes
of new Part IIA, the licence conditions and the internal
management protocols.
New subsection (4) provides the internal management protocols
may be amended or replaced with the written approval of the
Secretary.
New subsection (5) clarifies that, in the case of any
inconsistency, new Part IIA, the regulations and the licence
conditions prevail over the internal management protocols.
New section 55F provides for the trial period, which is the period
of the medically supervised injecting centre licence.
New subsection (1) provides that the medically supervised
injecting centre licence commences on a day specified in the
licence, and remains in force until a day specified in the licence
unless it is sooner surrendered by the licensee or revoked by the
Secretary.
New subsection (2) limits the duration of the trial period
specified by the licence to a maximum initial period of
24 months.
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New subsection (3) permits the Secretary to extend the period of
the licence, if satisfied that the extension would further the object
of new Part IIA, by amending the end date specified in the
licence to allow for a further period of up to 36 months.
New subsection (4) provides that the trial period may be
extended under new subsection (3) only once.
New subsection (5) allows the licensee to surrender the licence at
any time after consultation with the Secretary.
New section 55G provides for the publication of various notices
regarding the medically supervised injecting centre licence.
New subsection (1) requires the Secretary, on issuing the
medically supervised injecting centre licence, to publish in the
Government Gazette a notice that states that the licence has been
issued and states the start and end dates of the trial period as
specified in the licence.
New subsection (2) requires the Secretary, on extending the
period of the licence under new section 55F(3), to publish in the
Government Gazette a notice that states that the period of the
licence has been extended and states the new end date of the trial
period as specified in the licence.
New subsection (3) requires the Secretary, on suspending
the medically supervised injecting centre licence under new
section 55I, or revoking the licence under new section 55J, to
publish a notice in the Government Gazette. The notice must
state that the license is suspended or revoked and state the day
of the suspension or revocation. If the licence is suspended,
the notice must also state the period of suspension set out in the
notice referred to in new section 55I(2)(b), or state that the
licence is suspended until further notice.
New subsection (4) requires the Secretary, on reinstating the
medically supervised injecting licence following a suspension of
the licence, to publish in the Government Gazette a notice that
states that the licence is reinstated and states the day of the
reinstatement.
New section 55H provides for the conditions of the medically
supervised injecting centre licence.
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New subsection (1) provides that the licence is subject to the
following conditions--
• no child is to be admitted to any part of the licensed
medically supervised injecting centre that is used for the
administration of any injecting centre drug;
• the internal management protocols are to be observed at
all times;
• the licensed medically supervised injecting centre must
be operated in accordance with Part IIA and the
regulations made for the purposes of Part IIA;
• any other prescribed licence conditions;
• any other conditions imposed by the Secretary under
section 55C(4) or 55I(2)(c).
New subsection (2) permits the Secretary to vary a condition
imposed under new section 55C(4) or 55I(2)(c) with the
agreement of the licensee.
New subsection (3) permits the Secretary to revoke a condition
imposed under new section 55C(4) or 55I(2)(c) with or without
the agreement of the licensee.
New section 55I provides for disciplinary action for contravening
a licence condition or the internal management protocols.
New subsection (1) provides that new section 55I applies if the
Secretary is satisfied, whether as a result of the review under new
section 55P or otherwise, that the conditions imposed on a
medically supervised injecting centre licence or the internal
management protocols have been contravened.
New subsection (2) allows the Secretary to deal with the
contravention by doing all or any of the following--
• issue a warning or reprimand to the licensee;
• by written notice to the licensee, suspend the licence for
a specified period or until further notice;
• by written notice to the licensee, impose a new
condition on the licence;
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• require the internal management protocols to be
amended or replaced in accordance with any direction
of the Secretary;
• amend the licence or any licence condition.
The Note under new subsection (2) states that the Secretary may
also revoke the licence under new section 55J in the
circumstances set out in new section 55I(2).
New subsection (3) provides that the suspension of the licence
does not alter the day on which the licence ceases to be in force
under new section 55F(1)(b).
New section 55J provides that the Secretary may revoke the
medically supervised injecting centre licence in certain
circumstances. The Secretary may do so if satisfied, whether as a
result of the review under new section 55P or otherwise, that--
• the licensee is not a fit and proper person to hold the
licence; or
• the director or another person concerned in the
management of the licensed medically supervised
injecting centre is not a fit and proper person to be
concerned in the management of the centre; or
• a condition imposed on a medically supervised injecting
centre licence has been contravened; or
• the internal management protocols have been
contravened; or
• for any other reason, it is appropriate to revoke the
licence in the circumstances.
The Secretary may also revoke the licence by agreement with the
licensee, or for a prescribed reason.
Division 3--Miscellaneous matters
Division 3 provides for miscellaneous matters, including
exemptions from criminal and civil liability, the review of new
Part IIA and the licensing of the medically supervised injecting
centre for the trial period, regulations for new Part IIA, and the
repeal of new Part IIA.
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New section 55K provides exemptions from criminal
liability for clients of the medically supervised injecting centre.
New subsection (1) provides exemptions for those persons from
liability for an offence against Part V of the Principal Act or the
regulations constituted by the use, supply, possess or administer a
drug of dependence that is an injecting centre drug in a permitted
quantity in the centre.
New subsection (2) provides that a client to whom these
exemptions apply is taken to be authorized by the Principal Act
to carry out the activity.
New subsection (3) provides that these exemptions do not exempt
or affect any condition or obligation on a client by or under any
court order, tribunal order or by or under any other Act or law,
including--
• any sentencing order under the Sentencing Act 1991; or
• any parole condition or bail condition; or
• any order under the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997; or
• any supervision order or detention order (including any
interim supervision order or interim detention order)
under the Serious Sex Offenders (Detention and
Supervision) Act 2009; or
• any other prescribed law.
The intention is that, for example, a person who is granted bail on
the condition that they do not use a drug of dependence, will be
in breach of that condition of bail if they use a drug of
dependence at the medically supervised injecting centre.
New section 55L provides exemptions from criminal liability for
the licensee and staff of the licensed medically supervised
injecting centre.
New subsection (1) provides exemptions for those persons from
liability for an offence against Part V of the Principal Act or the
regulations constituted by the supply or possession of a drug of
dependence in the centre, if the supply or possession occurs in
the operation of the centre. The exemptions will apply even if
the drug of dependence is not an injecting centre drug in the
applicable permitted quantity.
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New subsection (2) provides that a person to whom the
exemptions in new subsection (1) apply is taken, for the purposes
of Part V of the Principal Act, to be authorized by the Principal
Act to carry out that supply or possession.
New subsection (3) provides exemptions from criminal liability
for the licensee, staff at the permitted site (other than the staff of
the licensed medically supervised injecting centre), and the
owner and occupiers of the permitted site. The staff of the
licensed medically supervised injecting centre are excluded
from this new subsection because they are covered by new
subsection (1).
The exemptions under new subsection (3) are from liability for
an offence against Part V of the Principal Act constituted by the
possession of a drug of dependence at the site if the possession
arises by operation of section 5 and occurs in the operation of the
centre. Section 5 deems any substance that is on any land or
premises occupied, used, enjoyed or controlled by a person to be
in the possession of that person unless they satisfy the court to
the contrary.
New subsection (3) provides that this exemption applies even if
the drug of dependence is not an injecting centre drug in the
applicable permitted quantity.
New subsection (4) provides that a person to whom the
exemption in new subsection (3) applies is taken, for the
purposes of Part V of the Principal Act, to be authorized by the
Principal Act to carry out that possession.
New section 55M clarifies that nothing in section 55K affects any
discretion a police officer may exercise to not charge a person
with an offence against Part V when travelling to or from, or in
the vicinity of, the medically supervised injecting centre for the
purposes of attending the centre.
New section 55N provides an exemption from civil liability.
New subsection (1) provides that the exemption is for--
• the licensee of the licensed medically supervised
injecting centre; and
• a member of the staff at the permitted site; and
• the owner of the permitted site; and
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• an occupier of the permitted site; and
• a trustee or a member of a committee of management or
of a board (however described) of the licensee, the
owner of the permitted site, or an occupier of the
permitted site.
New subsection (2) provides the exemption. It exempts those
persons from any civil liability for doing or omitting to do a thing
in good faith, in carrying out any duty or function in relation to
the operation of the licensed medically supervised injecting
centre and, in the case of an act or omission that is subject to new
Part IIA or regulations made for the purposes of new Part IIA, in
accordance with new Part IIA or those regulations.
New subsection (3) provides that, without limiting new
subsection (2), that provision applies to an act or omission that
relates to the supply or possession of a drug of dependence in the
centre (whether or not the drug of dependence is an injecting
centre drug in a permitted quantity of that injecting centre drug),
and that satisfies the requirements in new subsection (2)(a), (b)
and (c).
New subsection (4) exempts members of the staff of the
permitted site, from committing unprofessional conduct
(within the meaning and for the purposes of the Health
Practitioner Regulation National Law) or a breach of professional
etiquette or ethics or any other code of conduct when acting, or
failing to act, in the reasonable belief that the act or omission is
in accordance with new Part IIA or regulations made for new
Part IIA.
New subsection (5) clarifies that the exemptions provided under
new subsections (2), (3) and (4) do not apply if the act or
omission was due to negligence.
New subsection (6) clarifies that nothing in new section 55N
affects any rights or obligations between a member of the staff at
the permitted site and the person who engages (whether by
employment or otherwise) the person for that role.
New subsection (7) clarifies that nothing in new section 55N
affects or limits any Crown immunity that applies to a person
who exercises a power or function under new Part IIA.
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New section 55O provides an exception from any requirement
to obtain a planning permit in relation to the operation of the
licensed medically supervised injecting centre.
New section 55P requires the Minister to arrange for a review.
New subsection (1) requires a review to be conducted of the
operation and use of the medically supervised injecting centre,
the extent to which the object of new Part IIA has been advanced
during the period of the medically supervised injecting centre
licence, and how new Part IIA and any regulations made for new
Part IIA have operated and whether they require amendment.
New subsection (2) requires that the review be commenced
no later than 12 months after the day on which the medically
supervised injecting centre licence commences. It also states that
the review may be completed before or after the licence ceases to
have effect.
New subsection (3) authorises the Minister to access, collect,
use and disclose any data or information required to complete the
review subject to compliance with the Health Privacy Principles
and the Health Records Act 2001 (in the case of health
information within the meaning of that Act), and the Information
Privacy Principles and the Privacy and Data Protection
Act 2014 (in the case of personal information within the meaning
of that Act).
New subsection (4) requires that the Minister table a copy of the
review before each House of Parliament as soon as practicable
after the review is completed.
New section 55Q provides a power to make regulations.
New subsection (1) allows the Governor in Council to make
regulations for or with respect to--
• prescribing standards for the operation of the licensed
medically supervised injecting centre;
• prescribing the content and use of internal management
protocols;
• prescribing a drug of dependence, or a class of drug of
dependence, as an injecting centre drug;
• prescribing permitted quantities of injecting centre
drugs;
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• prescribing matters relating to the use, supply,
possession or administration of injecting centre drugs
and permitted quantities of injecting centre drugs;
• the qualifications or experience of persons engaged in
the operation of the licensed medically supervised
injecting centre (including staff of the centre);
• the functions of persons engaged in the operation of the
licensed medically supervised injecting centre
(including staff of the centre);
• prescribing any other matter or thing required to be
prescribed by new Part IIA or necessary to be
prescribed to give effect to new Part IIA.
New subsection (2) provides that the regulations--
• may be of general or limited application;
• may differ according to differences in time, place or
circumstance;
• may confer powers or discretions or impose duties on
any person or other entity;
• may provide in a specified case or class of cases for
the exemption of persons, other entities or things from
any of the provisions of the regulations, whether
unconditionally or on specified conditions, and either
wholly or to the extent specified in the regulations.
New section 55R provides for the repeal of new Part IIA and
related amendments.
New subsection (1) repeals new Part IIA on the sixth anniversary
of its commencement.
New subsection (2) revokes the medically supervised injecting
centre licence on the repeal of new Part IIA, if the licence is
otherwise still in force.
New subsection (3) provides that on the repeal of new Part IIA,
the following are also repealed--
• the definitions inserted into section 4(1) by clause 4;
and
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• sections 41(5), 41(1)(ad), 118(8), 119(eb), 129(1)(ea)
and 132(ua), inserted into the Principal Act by
clauses 5, 6, 8, 9, 10 and 11.
Clause 8 inserts new section 118(8) after section 118(7) of the
Principal Act.
New section 118(8) clarifies that section 118, which requires the
Secretary to keep a list of the persons holding certain licences
under the Principal Act, does not apply to a medically supervised
injecting centre licence under new Part IIA.
Clause 9 inserts new section 119(eb) after section 119(ea) of the
Principal Act.
New section 119(eb) provides that a certificate signed by the
Secretary that a facility specified in a certificate was or was not
the licensed medically supervised injecting centre at a specified
date or that an entity specified in the certificate was or was not
operating the licensed medically supervised injecting centre on a
specified date is prima facie evidence of the facts stated in the
certificate. This is applicable in any legal proceedings under the
Principal Act.
Clause 10 inserts new section 129(1)(ea) after section 129(1)(e) of the
Principal Act.
Section 129(1) of the Principal Act allows the Governor in
Council to make regulations for or with respect to regulating or
controlling the manufacture, sale, possession, administration use
supply distribution and storage of substances and preparations.
New section 129(1)(ea) clarifies that, without limiting new
section 55Q, regulations may be made for or with respect to
any matter or thing required to be prescribed for the purposes
of new Part IIA.
Clause 11 inserts new section 132(ua) after section 132(u) of the Principal
Act.
Section 132 of the Principal Act allows the Governor in Council
to make regulations relating to other matters under the Principal
Act.
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New section 132(ua) clarifies that, without limiting new
section 55Q, regulations may be made for or with respect to
any matter or thing required to be prescribed for the purposes
of new Part IIA.
Clause 12 provides for the automatic repeal of this amending Act on
31 October 2019. The repeal of this Act does not affect in any
way the continuing operation of the amendments made by this
Act (see section 15(1) of the Interpretation of Legislation
Act 1984).
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