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The objects of the Act are to:
· prevent the commission of alcohol-related offences;
· reduce excessive alcohol consumption;
· benefit people who are misusing alcohol or drugs by facilitating the clinical assessment and appropriate treatment of those people; and
· reduce the harm caused by the misuse of alcohol or drugs.
NOTES ON CLAUSES
PART 1 Preliminary matters
Clause 1. Short title.
This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Alcohol Reform
(Prevention of Alcohol-related Crime and Substance Misuse) Act 2011.
Clause 2. Commencement
This clause provides that the Act, or parts of the Act, commences on the day or days fixed by the Administrator as notified in the Gazette.
Clause 3. Objects
The objects of the Act are to support family and social welfare and improve the health and wellbeing of people in the Territory by providing a legislative framework for:
(a) the prevention of the commission of alcohol-related offences;
(b) the prevention of misuse of alcohol or drugs;
(c) the protection of people who are misusing alcohol or drugs from severe or serious harm because of the misuse; and
(d) the protection of people, particularly children, from harm or nuisance resulting from misuse of alcohol or drugs by others.
To achieve the objects, this Act establishes a tribunal with the power to make orders for the benefit of people who misuse alcohol or drugs.
The objects of the Act are facilitated by:
(a) measures for preventing the commission of alcohol-related offences, such as prohibitions on access to, and consumption of, alcohol by people who are misusing alcohol and increased availability of intervention aiming to reduce misuse;
(b) compulsory assessment of people reasonably believed to be misusing alcohol or drugs;
(c) compulsory treatment for the recovery and rehabilitation of people with dependency on alcohol or drugs; and
(d) appropriate intervention for people who are misusing alcohol or drugs; and
(e) referral for assessment for income management of people who are misusing alcohol or drugs.
Clause 4. Definitions
This clause provides for the definitions in the Act.
For example, ‘assessment’ is defined as a clinical assessment of a person by a clinician to assess whether the person is misusing a substance, while ‘substance’ is defined as alcohol or drug, but does not include a volatile substance as defined in section 4 of the Volatile Substance Abuse Prevention Act.
The clause also defines ‘identification system’ as the identification system established under section 31A(2) of the Liquor Act. This system provides for the Banned Drinkers Register.
Clause 5. Authorised applicant
This clause sets out who is an authorised applicant who may refer a person reasonably believed to be misusing a substance or substances to the Tribunal for assessment pursuant to section 22 of the Act.
An authorised applicant includes a member of the family, a health practitioner as described in subsection 5(3) and a police officer.
A police officer is also an authorised applicant for an application for assessment under section 16(2).
Clause 6. Member of the family
This clause provides that a member of a family of a person is any relative of the person, including the spouse or de facto partner of the person, as well as a person who is a relative according to Aboriginal tradition or contemporary social practice.
Clause 7. Application of Criminal Code
This clause provides that Part IIAA of the Criminal Code applies to offences against this Act. Part IIAA provides for principles of criminality responsibility along the lines of the Model Criminal Code developed under the auspices of the Standing Committee of Attorneys-General.
PART 2 BAT notices and alcohol misuse interventions
Division 1 BAT notice
Clause 8. BAT notice for alcohol-related matters
Clause 8 sets out what is a Banning Alcohol and Treatment notice (BAT notice).
Subsection (1) outlines the information that must be included in a BAT notice and that the form must be approved by the Commissioner of Police. A BAT notice prohibits the person named in the notice from purchasing, possessing or consuming alcohol during the period the notice is in force.
The BAT notice must state the reason the person has been given the notice and, if relevant to the reason the person has been given the notice, the grounds for the belief that the person was affected by alcohol at the relevant time.
The notice must state that the notice comes into force when the identity of the person given the notice is entered on the identification system, which provides for the Banned Drinkers Register, regardless of whether the person actually receives the notice.
If the notice is given under section 9(1) the person may apply to the court for an order under section 14. If the notice is given under section 9(2) the person may apply to the Tribunal under section 17 for a review of the notice.
The notice must also state that for a notice given under section 9(2)(a), that the person may participate in alcohol misuse intervention during the period the notice is in force. Section 12 provides that duration of the notice may be reduced if an alcohol intervention certificate is obtained on satisfactory participation in alcohol misuse intervention and provided to the Registrar.
Subsection (2) provides that a first BAT notice is a notice issued to a person who has not been given any BAT notices within the previous
12 months.
Subsection (3) provides that a second BAT notice is a notice given to a person who has been given a first BAT notice within the previous
12 months or to a person who is reasonably believed to have contravened a first BAT notice.
Subsection (4) provides that a third BAT notice is a notice given to a person who has been given both a first BAT notice and a second BAT notice within the previous 12 months or to a person who is reasonably believed to have contravened a second BAT notice.
Clause 9. Giving BAT notice
Clause 9 outlines when a BAT notice may be given and the circumstances when a police officer may give a BAT notice to a person.
Subsection (1) provides that a person who has been summonsed for, or charged with, an alcohol related offence or who is named as a defendant in a police domestic violence order (where the police officer issuing the domestic violence order reasonably believe the person was affected by alcohol at the time the domestic violence conduct occurred) may be issued a BAT notice.
Subsection (2)(a)(i) provides that a person who at least three times within the previous three months is taken into alcohol-related protective custody pursuant to Part 7, Division 4 of the Police Administration Act may be issued a BAT notice.
Subsection (2)(a)(ii) provides that a person who has been given three alcohol-related infringement notices within the previous 12 months may be issued a BAT notice.
Subsection (2)(a)(iii) provides that a person given two infringement notices in relation to an offence against section 23(1) of the Traffic Act, being an offence of low range driving under the influence of alcohol, within the previous three years may be issued a BAT notice.
Subsection (2)(b) provides that a person who contravenes section 72(1) of this Act is issued a BAT notice. Section 72(1) prohibits the supply of alcohol to a person banned under the Act.
Subsection (3) provides that for subsection (2)(a)(i) that a person is held in alcohol-related protective custody if apprehended under
Part VII, Division 4 of the Police Administration Act because of apparent intoxication by alcohol.
Subsection (4) defines alcohol-related infringement notice and
alcohol-related offence for the purpose of the Act. Both definitions require alcohol to be a factor of the infringement or offence. For example, an alcohol-related offence may be an offence where the alleged offender is reasonably believed to be affected by alcohol during the commission of the offence.
Clause 10. Recording BAT notice on identification system
This clause provides that a BAT notice given to a person is recorded on the identification system, which provides for the Banned Drinkers Register. A BAT notice takes effect when it is entered on the identification system regardless of whether the banned person receives the notice.
Clause 11. Duration of BAT notice given under section 9(1)
This clause provides that a BAT notice given under section 9(1) remains in force on the identification system until an order is made by a court under section 14 or otherwise for three months.
Clause 12. Duration of BAT notice given under section 9(2)(a)
This clause sets out the periods that a first, second or third BAT notice given under section 9(2)(a) is in force.
A first BAT notice is in force on the identification system for three months, or if the person participates in an alcohol misuse intervention and is given an alcohol intervention certificate, then the record may be removed from the identification system after one month.
A second BAT notice is in force on the identification system for six months, or if the person participates in an alcohol misuse intervention and is given an alcohol intervention certificate, then the record may be removed from the identification system after two months.
A third BAT notice is in force for 12 months, or if the person participates in an alcohol misuse intervention and is given an alcohol intervention certificate, then the record may be removed from the identification system after four months.
Clause 13. Duration of BAT notice given under section 9(2)(b)
This clause sets out the periods that a BAT notice given under section 9(2)(b) is in force on the identification system.
A first BAT notice is in force for three months. A second BAT notice is in force for six months. A third BAT is in force for 12 months. The staggered increasing period is intended to act as a deterrent from supplying a person who is banned.
Clause 14 Court orders relating to BAT notice
This clause provides that a court may make orders it considers appropriate for a BAT notice in force for a banned person appearing in the court. This includes revoking the notice and providing conditions relating to purchase, possession or consumption of alcohol as stated by the court, and if appropriate, assessment or treatment of the person for substance misuse.
Clause 15 Consequence of contravention of first or second BAT notice
This clause provides that if a banned person has contravened a BAT notice, a police officer may give the person another BAT notice.
For a contravention of a first BAT notice, a second BAT notice may be given, and for a contravention of a second BAT notice, a third BAT notice may be given.
Second or third BAT notices are given under the same provision that the first BAT notice was given. That is, a person who contravenes a BAT notice given under section 9(2)(a) is given under a second BAT notice under section 9(2)(a).
Clause 16 Application for assessment
This clause provides for referral of a banned person by application to the Tribunal for assessment.
If a police officer believes a person has contravened a third BAT notice, or if within 12 months after a person is given a third BAT notice under section 9(2)(a) the person is given an alcohol-related infringement notice or is taken into alcohol-related protective custody, then the person must be referred to the Tribunal for assessment.
Division 2 Review of BAT notice
Clause 17 Application for review of particular BAT notice
This clause provides that a person given a BAT notice under section 9(2) may apply to the Tribunal for a review of the notice. A BAT notice given under section 9(2) may be reviewed by the Tribunal if the banned person believes the police officer made an error of law or fact in giving the notice (for example, a mistake of identity).
The application must state the reasons for the belief and provide information and evidence to support the belief.
The Chairperson must consider the application and decide if a Tribunal should be constituted to either conduct a hearing of the application or decide the application on the information given. A copy of the application must be provided to the Commissioner of Police and if a hearing is to be conducted, notice provided to the Commissioner of Police and banned person of the date, time and place of the hearing.
Clause 18 Attendance and representation at hearing
This clause provides who may attend the hearing. The banned person and a representative of the Commissioner of Police are required to attend the hearing. The banned person may also be legally represented if the application involves a question of law.
Clause 19 Deciding application
This clause provides what the Tribunal must do in deciding an application. The Tribunal must make an order that the BAT notice is either revoked or remains in force. The applicant and Commissioner of Police must be notified of the decision through an information notice and any findings of fact.
Division 3 Alcohol misuse interventions
Clause 20 Approval of alcohol misuse interventions and alcohol intervention providers
The Minister must approve alcohol misuse interventions and the entities or classes of persons who may provide alcohol misuse interventions by Gazette notice.
Alcohol misuse interventions may be undertaken by persons issued a BAT notice under section 9(2)(a). An alcohol intervention certificate may be given under section 21 and reduce the duration of the BAT notice in force on the identification system under section 12.
Clause 21 Giving alcohol intervention certificate
This clause provides for the giving of an alcohol intervention certificate. When a banned person has participated in an alcohol misuse intervention to the satisfaction of the provider, then the banned person must be given an alcohol intervention certificate in the approved form.
The banned person or alcohol intervention provider may give the alcohol intervention certificate to the Registrar to enable the record of the BAT notice to be removed from the identification system.
PART 3 Referrals for assessment, GAP orders and BADT orders
Division 1 Referrals for assessment
Clause 22 Application for assessment
This clause provides for applications to be made to the Tribunal for assessment of a person who is misusing a substance.
Applications for assessment of a person believed to be misusing a substance for a Banning Alcohol and Drugs and Treatment (BADT) order may be made by a person who believes they may benefit from an order or by an authorised applicant. Clause 31 provides for the making of a BADT order and the objectives of a BADT order.
An application may be made by an authorised applicant if they form a reasonable belief that a person is misusing a substance and because of the misuse the person is affecting safety, health or welfare of the person or others, or is posing a risk to public safety or wellbeing, or is causing nuisance. An application must be in the approved form and include sufficient information for the Tribunal to determine whether to refer the person for clinical assessment.
An authorised applicant who acts in good faith in making an application is protected from liability and is not in breach of any professional code of conduct for making the application or disclosing the information to the Tribunal.
Clause 23 Decision about referral
This clause provides what the Tribunal must do after receiving an application for assessment.
The Tribunal must consider the application and decide to whether to request an assessment by a clinician of the person named in the application.
Clause 24 Giving notice of decision about referral
This clause provides what the Tribunal must do if it decides to request an assessment.
If the Tribunal decides to request an assessment then the Tribunal must notify a clinician, the person to be assessed and, if the application is by an authorised applicant, the authorised applicant.
The Tribunal must also give the clinician the information received in the application and, if the application is by an authorised applicant, give the information to the person to be assessed along with the consequences for non-attendance for assessment.
The name or personal details of the authorised applicant must not be disclosed to the person to be assessed, other than a general description (for example, that the authorised applicant was a police officer).
Clause 25 Assessment
This clause sets out what happens when a person is referred to a clinician for assessment.
The clinician must take steps to conduct an assessment. If the assessment is conducted the clinician must provide an assessment report to the Tribunal containing information regarding the level or nature of the misuse and whether the person has a substance dependency along with the details of any treatment or intervention recommended.
If the clinician is unable to conduct the assessment they must notify the Tribunal and provide reasons.
Division 2 GAP order
Clause 26 GAP order if person does not attend for assessment
This clause sets out the consequences if a person does not attend for treatment.
If the person referred for assessment does not attend the assessment and the clinician has notified the Tribunal, the Tribunal may make a General Alcohol Prohibition, or GAP, order for the person banning purchase, possession or consumption of alcohol by the person.
Clause 27 Recording GAP order on identification system
This clause provides that a GAP order is recorded on the identification system, which provides for the banned drinkers register.
As with a BAT notice (see clause 10) a GAP order takes effect when it is entered on the identification system regardless of whether the person receives the order.
Clause 28 Duration of GAP order
This clause provides for the length of time that a GAP order remains in force.
A GAP order will remain in force until removed from the identification system following an assessment completed by a clinician (within three months of the order coming into force) and the Tribunal has considered the assessment report. If an assessment is not made within the three month period, the order will be removed from the identification system at the end of three months.
Clause 30 makes provision for what the Tribunal can do if a person is not assessed within the three month period.
Clause 29. Persons to be given GAP order
This clause provides that a GAP order must be given to the banned person and a copy of the order to the clinician.
Clause 30. Effect of non-attendance for assessment
This clause sets out the consequence if a banned person does not attend for an assessment during the three months the GAP order is in force.
If the banned person does not attend for assessment within the three months after the GAP order is made, a further GAP order may be made by the Tribunal.
Division 3 Making BADT order
Clause 31. BADT order
Clause 31 provides for the making of a BADT order and the objectives of a BADT order.
A BADT order is an order that specifies prohibitions or requirements (or both) regarding a person who is assessed as misusing a substance or for a voluntary applicant.
Subsection (2) provides that the purpose of a BADT order for a person at risk includes reducing access and consumption or use of alcohol or drugs, increasing access to counselling or intervention for misuse of a substance and reducing risks or harms to others associated with misuse of a substance.
Subsection (3) provides that the purpose of a BADT order for a voluntary applicant includes reducing access and consumption or use of alcohol or drugs and reducing risks or harms to others associated with misuse of a substance.
Subsection (4) provides that a BADT order must prohibit the person from purchasing, possessing or consuming the substance.
Subsection (5) provides that the BADT order may state other prohibitions, requirements or conditions including, for example, that the person must undergo treatment counselling or other intervention. The BADT order may also refer the person for assessment for income management.
Clause 32. Application for BADT order
This clause provides that a person may voluntarily apply for a BADT order for himself or herself.
The person may not have a substance misuse problem but may seek an order, for example, where the person is repeatedly asked to purchase alcohol for others. The BADT order may assist in reducing access to alcohol for others and reduce risks and harms associated with others’ misuse of substances.
Clause 33. Giving notice of hearing
This clause provides what the Tribunal must do when a person is assessed as at risk or on application by a voluntary applicant.
The Tribunal must conduct a hearing to decide whether to make a BADT order for a person at risk or a voluntary applicant. Written notice must be provided with the date, time and place for the hearing and who must attend.
The notice must also provide a copy of the assessment report for a person assessed at risk, unless the Tribunal considers that this may cause harm to the person’s health or put the safety of others at risk.
Clause 34. Attendance at hearing
This clause provides who must or may attend a hearing for a BADT order.
A person at risk who applied to the Tribunal for a BADT order is required to attend the hearing. Members of the person’s family may attend with the person at risk’s consent.
A person at risk who was referred to the Tribunal by an authorised applicant and, if the person at risk is a child, a responsible adult for the child, is required to attend the hearing. Members of the person’s family may attend with the person at risk’s consent.
A voluntary applicant is required to attend the hearing. Members of the person’s family may attend with the applicant’s consent.
Clause 35. Matters to be considered by Tribunal
This clause sets out the matters to be considered by the Tribunal when deciding whether to make a BADT order.
In deciding whether to make a BADT order, the Tribunal must consider the assessment report, the current circumstances and, for voluntary applicants, the reasons why the order is sought. The Tribunal must have regard to whether a BADT order will achieve one or more of the objectives set out in section 31(2) and (3). Such objectives include reducing access and consumption or use of alcohol or drugs, increasing access to counselling or intervention for misuse of a substance (for a person at risk) and reducing risks or harms to others associated with misuse of a substance.
Clause 36. Making BADT order
This clause sets out what the Tribunal does when making a BADT order.
If the Tribunal is satisfied that making a BADT order will achieve at least one of the objectives set out in section 31(2) and (3) then the Tribunal must make an order.
The Tribunal must give the BADT order to the banned person. If the banned person is a person at risk, the Tribunal must also give the person an information notice for the decision.
Clause 37 Recording BADT order on identification system
This clause provides that the BADT order is recorded on the identification system.
Similar to BAT notices (see clause 10) and GAP orders (see clause 27) the BADT order takes effect when entered on the identification system regardless of whether the banned person receives the order.
Clause 38. Duration of BADT order
This clause provides that a BADT order remains in force for the duration of the order which may be up to two years.
The period of the order may be extended or revoked by order under section 44 (which sets out the orders that may be made by the Tribunal following a review of a BADT order).
Clause 39. Refusal to make BADT order
This clause sets out what happens if the Tribunal refuses to make a BADT order.
If the Tribunal refuses to make a BADT order it must notify the person at risk or voluntary applicant and other relevant persons. It must also provide a notice of the decision with reasons for the decision and an information notice (which provides information regarding the entitlement of the person or applicant to appeal against the decision under section 68 of the Act, appeals to the Local Court from decisions of the Tribunal).
Division 4 Reviewing BADT order
Clause 40. Review without application
This clause provides for review of a BADT order without application.
A BADT order in force for more than 12 months must be reviewed by the Tribunal after 12 months if no application for variation, revocation or extension is received under section 41.
The review may be by way of hearing, whereby the Tribunal must give notice of the reason for the hearing, the date, time and place for the hearing and who must attend. However, rather than conducting a hearing the Tribunal may review the order by informing itself in any other way it considers appropriate. For example, the Tribunal may seek information from a treatment service provider.
Clause 41. Review on application for variation, extension or revocation
This clause provides for review of a BADT order on application for variation, extension or revocation.
A banned person, a police officer or if treatment is provided, a person providing treatment, may make an application for variation, extension or revocation of a BADT order to the Tribunal. The application must be in writing in an approved form and must state whether it is for variation, extension or revocation. The application must provide reasons for the application and include all necessary information to support the application. Unlike a review under section 40, a hearing must be conducted by the Tribunal for a review under section 41.
Clause 42. Application for contravention of BADT order
This clause provides that if a banned person contravenes a BADT order a police office may apply, under clause 41 for a variation or extension of the order.
Clause 43. Attendance at hearing of application
This clause provides for who must or may attend the hearing of an application for review under section 41.
A banned person must attend. An applicant other than a banned person must attend. The Tribunal must give notice of the hearing of the application to persons required to attend. Persons who may attend include the family of the banned person with the consent of the banned person.
Clause 44. Orders following review
This clause sets out what orders may be made following a review of a BADT order.
After completing a review under section 40 or 41, the Tribunal may vary, extend, revoke or make no change to the order. The Tribunal may only vary or extend the order if it is in the best interests of the banned person. A further assessment of the banned person is required if the duration of an extension will exceed the period of the first BADT order. Subsection (4) provides that the Tribunal must also order a further assessment if the banned person is a person at risk and the Tribunal extends the duration of the BADT order.
A BADT order must not be revoked unless the person at risk is no longer misusing the substance and the order is no longer required to protect the person or others from harm.
Clause 45. Giving information notice
This clause provides that the Tribunal must give an information notice for the decision after a review under section 44.
Following review, the Tribunal must give an information notice for the decision to the banned person, applicant and any other person or entity affected by the decision, such as a treatment provider.
PART 4 Tribunal
Division 1 Establishment of Tribunal and related matters
Clause 46. Establishment of Tribunal
This clause establishes the Alcohol and Drugs Tribunal.
Clause 47. Membership
This clause provides for the membership of the Tribunal.
The Administrator may appoint members of the Tribunal. The membership of the Tribunal includes a Chairperson and Deputy Chairperson who are legal practitioners admitted for 5 or more years; at least 4 other persons who have qualifications or experience relating to the functions of the Tribunal; and other persons considered suitable for appointment who represent the interests of a community or an area of the Territory.
Persons who have qualifications or experience relating to the functions of the Tribunal include a person who is or has been a legal practitioner, a person with special interest or expertise in health related care or other qualifications or experience prescribed by regulation.
The members of the Tribunal should be constituted of both sexes and from diverse backgrounds and include members who are Aboriginal or Torres Strait Islander or demonstrate an understanding of Aboriginal or Torres Strait Islander culture.
Clause 48. Presiding member
This clause provides that the Chairperson and Deputy Chairperson may be presiding members of a Tribunal constituted under section 53. Other members of the Tribunal may also be appointed as presiding members by the Administrator, if the Administrator is satisfied that they have appropriate qualifications or experience.
Clause 49. When Deputy Chairperson may exercise powers of Chairperson
This clause provides for when the Deputy Chairperson may exercise the powers and perform the functions of the Chairperson.
If the Chairperson vacates office, or is absent from the Territory, or is unable for another reason to exercise powers or perform functions of the Chairperson then the Deputy Chairperson may perform the functions of the Chairperson.
Clause 50. Duration of appointment
This clause provides that the duration of appointment is for three years or a lesser period as specified in the appointment. A member is also eligible for re-appointment.
Clause 51. Resignation and removal
This clause sets out how a member may resign from office or be removed by the Administrator.
Clause 52. Functions and powers
This clause sets out the functions and powers of the Tribunal.
The Tribunal’s functions include considering and deciding applications, requesting clinicians to make assessments and making GAP orders, BADT order and other orders. The Tribunal may make inquiries as appropriate, for example, to obtain further information regarding an application referring a person for assessment.
Clause 53. Constitution for proceeding
This clause provides how a Tribunal may be constituted.
The Chairperson must decide the member or members to constitute the Tribunal for a proceeding.
An application for assessment or a review of a BAT notice must be considered by a presiding member alone. Other proceedings may be constituted by a Tribunal of an additional one or two members if considered desirable, although the proceedings can be heard by a presiding member alone.
Clause 54. Change in Constitution
This clause provides for the conduct of a proceeding if a member vacates office or becomes incapable of continuing to conduct the proceeding. A new Tribunal may be constituted to continue the proceeding, but must have regard to the record of the original Tribunal.
Clause 55. Registrar
This clause provides for the appointment of a Registrar of the Tribunal.
A public sector employee may be appointed by the Chief Executive Officer to be the Registrar of the Tribunal. The Registrar’s functions include to receive applications, maintain a record of applications, maintain records relating to BAT notices and give the
Director of Licensing information about the notices and orders for the identification system.
Clause 56 Deputy Registrar
This clause provides that the Chief Executive Officer may appoint a public sector employee to be a Deputy Registrar, to assist the Registrar in the performance of their functions.
Division 2 General provisions for proceedings
Clause 57. Form and lodgment of applications
This clause provides for approved forms and lodgment of applications under the Act. The Chairperson may approve forms for use under the Act. An application or other document made or given to the Tribunal must be lodged with the Registrar.
Clause 58. Refusal to consider application
This clause provides for when the Tribunal may refuse to consider an application. The Tribunal may refuse to consider an application considered to be an abuse of process, made for a wrongful purpose or made without reasonable ground.
Clause 59. Conduct of proceeding generally
This clause sets out the general conduct of proceedings of the Tribunal, including that the Tribunal is bound by the rules of natural justice; it must keep a record of proceedings; and it may make an order in the absence of the person at risk.
Clause 60. Conduct of hearing
This clause provides how a hearing is conducted. A hearing of an application must be conducted with as little formality and technicality as possible. A hearing may be adjourned.
Clause 61. Appointment and functions of advocate
This clause provides for the appointment of and the functions of an advocate. An advocate may be appointed to represent the best interests of and assist the person at risk in a proceeding where the Tribunal is deciding whether to make a BADT order or for a review of a BADT order.
An advocate is a person approved by the Chief Executive Officer who has expertise in general care, health care rehabilitation or treatment of persons misusing a substance.
Clause 62. Hearing not in public
This clause provides that a hearing must not be open to the public unless ordered otherwise by the Tribunal.
The consent of the person at risk must be obtained if the hearing is ordered to be open. In addition, the Tribunal cannot order an open hearing if the person’s privacy would be adversely affected or if a public hearing would result in serious harm to the person’s health or place others at risk.
Clause 63. Approval of elder or respected person to assist
This clause provides that an elder or respected person may assist the Tribunal. A person at risk, who is an Aboriginal or Torres Strait Islander, or their advocate, may apply to the Tribunal to allow an elder or other respected person to assist the Tribunal in deciding appropriate orders.
Clause 64. Interpreter
This clause provides that a person who does not speak English so to understand the proceedings may have access to an interpreter to assist the person.
Clause 65. Evidence
This clause sets out how evidence may be given in a proceeding.
The Tribunal is not bound by the rules of evidence and may inform itself of a matter relevant to the application as considered appropriate. Evidence may be oral or in writing. Evidence given to the Tribunal cannot be used in civil or criminal proceedings.
Clause 66. Access to medical and other records
This clause provides that medical or other records relevant to the application may be provided to the person at risk or their advocate, but not if access may cause serious harm to the person at risk’s health or put the safety of others at risk.
Clause 67. Reports of reasons for decisions
This clause provides that reasons for decisions may be published by the Chairperson but must de-identify the person at risk.
Clause 68. Appeals to Local Court
This clause provides for when a person may appeal to the Local Court.
A person given an information notice under section 19(2) (review of a BAT notice), 36(4) (making a BADT order), 39(3) (refusal to make BADT order) or 45(1) or (3) (orders following review) may appeal to the Local Court against the decision stated in the notice. An appeal against a Tribunal decision must be made within 30 days after receiving the information notice or becoming aware of the decision. The appeal must state the grounds on which the appeal is made.
An appeal is a rehearing of the evidence. However, further evidence may be admitted in the Local Court if permitted by the Court.
In deciding the appeal the Local Court may confirm, vary or set aside the Tribunal decision and substitute another decision the Tribunal could have made.
Division 3 Other matters
Clause 69. Contempt
This clause provides that it is an offence for a person to intentionally threaten, intimidate or insult the Tribunal or engage in conduct which interrupts or creates a disturbance of proceedings of the Tribunal and is punishable by a maximum penalty of 200 penalty units or imprisonment for 12 months.
Clause 70. Offence to publish or broadcast name or report
This clause provides that it is an offence to intentionally or recklessly publish or broadcast the name of a person at risk punishable by a maximum penalty of 200 penalty units or imprisonment for 12 months. The offence does not apply to persons carrying out functions under the Act or to a person who reasonably believes that it is his or her duty to give information to another person.
Clause 71. Annual report
This clause provides for an annual report to be provided to the Minister.
The Chairperson must give the Minister a report on the Tribunal’s operations within three months of the end of the financial year and the Minister must table the report in the Legislative Assembly within
six days of receiving the report.
PART 5 Miscellaneous provisions
Clause 72. Prohibition on supply of alcohol to particular individuals
This clause provides that a person must not supply alcohol to an individual if they know that a GAP order, BADT order relating to alcohol or BAT notice is in force for the individual. To do so is a contravention of this section and the person supplying the alcohol may be given a BAT notice under section 9(2)(b).
Section 31A(6) of the Liquor Act creates the relevant offence for an authorised seller who sells to a banned person.
Clause 73. Police power to require breath test
This clause provides that a police officer may require a banned person to submit to a breath test to determine if there is alcohol in the person’s blood. This power may be exercised only if the person is in a public place and the police officer reasonably believes that the person has been consuming alcohol in contravention of a notice or order under the Act.
Clause 74. Misleading information
This clause provides that it is offences for a person to intentionally give misleading information or a misleading document to a person acting in an official capacity, knowing the information is misleading and that the person is acting in an official capacity. The offences are punishable by a maximum penalty of 250 penalty units or two years imprisonment.
Clause 75. Clinicians
This clause provides for the appointment of clinicians. A person may be appointed as a clinician by the Chief Executive Officer if the person is a medical practitioner or has a qualification or experience appropriate for the assessment of persons for misuse of a substance.
Clause 76. Delegations
This clause provides when powers or functions under the Act may be delegated. The Minister and the Commissioner of Police may delegate powers or functions under this act to a person. The Chief Executive Officer may delegate powers or functions under the Act to a public sector employee.
Clause 77. Protection from liability
This clause provides protection from liability for persons exercising powers and functions under the Act. There is no civil or criminal liability for acts done or omitted in good faith in the exercise of a power or performance of a function by an advocate, a clinician or an alcohol intervention provider or treatment provider.
Clause 78. Regulations
This clause provides that the Administrator may make regulations under the Act.
PART 6 Consequential amendments
Division 1 Amendment of Information Act
Clause 79. Act amended
This clause provides that this Division amends the Information Act.
Clause 80 Section 69 amended
This clause amends section 69 of the Information Act by inserting a new subsection 69(2) to exempt the Tribunal from the Information Privacy Principles (providing for the collection, use and storage of personal information) to enable the sharing of information for the purpose of giving effect to an order.
Division 2 Amendment of Police Administration Act
Clause 81. Act amended
This clause provides that this Division amends the Police Administration Act.
Clause 82 Section 4 amended
This clause amends section 4(1) of the Police Administration Act by inserting a definition of ‘intoxicated’ for Part VII, Division 4 and referring to section 127A.
Clause 83 Section 127A replaced
This clause repeals section 127A of the Police Administration Act and inserts a new section 127A.
New section 127A provides that a person is intoxicated if the person’s speech, balance, coordination or behaviour appears to be noticeably impaired and it is reasonable in the circumstances to believe the impairment results from the consumption or use of alcohol or a drug.
The new definition is similar to that proposed for the concept of ‘drunk’ in the Alcohol Reform (Liquor Legislation Amendment) Bill 2011 (but incorporating being affected by drugs). This creates consistency between the definition of ‘drunk’ in the Liquor Act and the apprehension without arrest of persons into protective custody.
Clause 84 Section 128 amended
This clause omits subsection 128(1) of the Police Administration Act and inserts a new subsection 128(1) to provide a subjective test for apprehension. The subjective test allows a member of the police to apprehend a person, in the opinion of the apprehending police officer, that due to the person’s state of intoxication, that the person may cause harm to themselves or another (or perhaps to property) arising from the person’s general demeanor and conduct.
New subsection 128(1) sets out grounds for apprehension including that the person is intoxicated; that the person is in a public place; and that because of the person’s intoxication that the person is unable to adequately care for himself or herself and it is not practicable for the person to be cared by another person, or the person may cause harm, or may intimidate, alarm or cause substantial annoyance to people, or that the person is likely to commit an offence.
Clause 85 Section 130 amended
This clause amends section 130 of the Police Administration Act to omit subsection 130(1)(c).
Clause 86 Section 130A
This clause inserts after section 130 a new section 130A which provides that police may obtain a breath test or breath analysis and take and record identifying information of a person apprehended and taken into custody under section 128 of the Police Administration Act.
The information must only be used for the purposes of this Act, by the SMART Court for the purposes of the Alcohol Reform (Substance Misuse and Referral for Treatment Court) Act, or for administrative purposes under the Police Administration Act. The information must be stored in a way that prevents it from being used for another purpose.
New section 130A provides for evidentiary certificates for the breath test or breath analysis and for the record of identifying information of a person apprehended and taken into custody under section 128 of the Police Administration Act.
Clause 87. Expiry of Part
This clause provides that Part 6 of the Act (consequential amendments) expires the day after it commences.