Scrutiny of Acts and Regulations Committee

Alert Digest No 3 of 2008

Tuesday, 11 March 2008

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Courts Legislation Amendment (Associate Judges) Bill 2008

Introduced: 26 February 2008
Second Reading Speech: 27 February 2008
House: Legislative Assembly
Member introducing Bill Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Constitution Act 1975, the Supreme Court Act 1986 and the County Court Act 1958 to replace the office of Master of the Supreme Court and Master of the County Court with the office of Associate Judge of those Courts.

The Committee notes these extracts from the Second Reading Speech –

While the new office of Associate Judge would continue to perform some of the historical functions of Masters there have been significant developments in recent years to modernise the office of Master in the Supreme Court, particularly in the provision of court-directed mediation. The Bill builds on the initiative of the Supreme Court in recent years in allowing litigants to utilise the Masters of the court to mediate disputes.

…

Renaming the office of Master would be consistent with developments in New South Wales and New Zealand and would reflect the judicial status acquired by masters, particularly over the last two decades, and assist public understanding of the nature of the office.

…

Under the Bill, Associate Judges will be subject to the rules and the general direction of the Chief Justice. The allocation of functions to associate judges would be an internal matter for the court.

…

The Bill gives Associate Judges the jurisdiction of the trial division of the Supreme Court and of the County Court.

Content and Committee comment

[Clauses]

[2]. Provides that the provisions in the Bill commence on proclamation but not later than by 31 December 2009.

Note: The explanatory memorandum provides that – This is to allow sufficient time for the making of new Rules of Court arising from the amendments.

[3 to 12]. Makes amendments to the Constitution Act 1975 to insert new definitions, of Associate Judge and make other consequential amendments to recognize the new position of Associate Judge of the Court.

[13 to 26]. Amends the Supreme Court Act 1986 and inserts a definition of Associate Judge, referred to under section 75(4) of the Constitution Act 1975, and makes other consequential amendments to recognize the new position of Associate Judge of the Court.

[28 and 29]. Substitutes section 104 and amends section 104A of the Supreme Court Act 1986 and deals with the appointment of Associate Judges and sets out the qualifications required for appointment as an Associate Judge, the procedure for resignation and entitlements to applicable salary and allowances payable under the Constitution Act 1975 and matters related to pension entitlements.

[43 to 71]. Amends the County Court Act 1958 to provide for Associate Judges of the Court rather than Master of the Court ad provides for their appointment, salary, pensions, powers, functions and immunities.

[91]. Provides for the automatic repeal of this amending Act on 31 December 2010.

Charter Report

Keywords: Age discrimination – Independent court – Associate judges – Jurisdiction in hearings – Appointment and retirement ages

Charter s.8 provides that everyone is ‘entitled to the equal protection of the law without discrimination’. Discrimination includes discrimination on the basis of age. Charter s. 24 provides that criminal defendants and civil litigants have ‘the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal’. Charter s. 7(2) provides that human rights ‘may be subject under law only to such reasonable limits as can be demonstrably justified’.

The Committee notes that clauses 18 (amending s. 17 of the Supreme Court Act 1986) and 44 (inserting a new section 3BA into the County Court Act 1958) gives associate judges jurisdiction to hear all civil and criminal matters. The Committee considers that the Bill therefore may engage the Charter rights of all Victorian litigants’ to decisions by a ‘competent, independent and impartial’ court.

The Committee observes that clauses 28 (substituting s. 104 of the Supreme Court Act 1986) and 53 (substituting s. 17A of the County Court Act 1958) provide associate judges with equivalent protections against removal from office to those that apply to judges. The Committee also observes that clause 73 (inserting new sections 143 & 144 into the Supreme Court Act 1986) provides for the continuation of existing masters’ appointments and former masters’ pension entitlements. The Committee further observes that clause 36 (substituting s. 105 of the Supreme Court Act 1986) only permits the appointment of acting associate judges when a current associate judge is ‘absent or temporarily unable to perform the duties of office’, rather than the wider circumstances permitted by s. 80D of the Constitution Act 1975 (in relation to judges) or the existing s. 105 (in relation to masters.) The Committee therefore considers that the Bill is compatible with Victorian litigants’ Charter right to decisions by an independent court.

The Committee also notes that clauses 28 (substituting s. 104 of the Supreme Court Act 1986) and 53 (substituting s. 17A of the County Court Act 1958) prevent the appointment of people over seventy as associate judges and generally provide that the appointments of associate judges cease when they turn seventy. The Committee considers that clauses 28 and 53 may limit potential and actual associate judges’ Charter right to equal protection of the law without discrimination on the basis of age.

The Statement of Compatibility remarks that this limitation:

…ensures that associate judges are competent and maintains public confidence in the judiciary while preserving the independence of the judiciary and minimising intrusive performance evaluations of associate judges by the executive.

The Committee observes that the Supreme Court of Canada, in a different context, has held that a mandatory retirement age is a reasonable limit on equality rights for employees who otherwise have been given tenured positions to further their independence (Mckinney v University of Guelph [1990] 3 SCR 229.) The Committee therefore considers that clauses 28 and 53 are a reasonable limit on the Charter’s right against age discrimination according to the test set out in Charter s. 7(2).

The Committee further notes that the Statement of Compatibility does not identify by clause or section number any of the provisions it discusses. The Committee reiterates its view, stated in Alert Digest No. 14 of 2007, that –

‘the absence of express references to clause or section numbers in relation to a complex Bill may render the statement of compatibility incapable of informed consideration by members of Parliament.’

The Committee draws attention to its Practice Note No. 2 concerning the content of Statements of Compatibility and the Committee’s practice in reporting on them where the Committee considers that they are inadequate or inaccurate.

The Committee will raise this concern with the Minister.

The Committee makes no further comment

Drugs, Poisons and Controlled Substances Amendment Bill 2008

Purpose

This Bill amends the Drugs, Poisons and Controlled Substances Act 1981 (the ‘Act’) in order to make two changes to the current regulatory scheme.

The first change provides a mechanism to allow for the efficient supply of poisons and controlled substances (including drugs such as antivirals and vaccines) during a public health emergency, when it may be necessary to supply large quantities of such medications to large numbers of people within a short time period. In such circumstances it would not be practicable to comply with the ordinary statutory limitations on the distribution and supply of medications. The Bill enables the Secretary to authorise a specified class or classes of persons to obtain, possess, use, sell or supply specified poisons and controlled substances for the duration of the emergency. The classes of persons who could be authorised to distribute those poisons for the duration of the emergency may include nurses, pharmacists and employees of municipal councils.

The second major change is to amend the scheme found in sections 33 to 35 of the Act that deals with the supply by medical practitioners and nurse practitioners of Schedule 8 and 9 poisons, and Schedule 4 poisons which are also drugs of dependence. The amendments are intended to simplify the current scheme by rationalising the permit and notification requirements, while continuing to minimise the risks of persons becoming dependent on a drug.

Content and Committee comment

[Clauses]

[2]. Parts 1 and 2 come into operation on the day after Royal Assent. Part 3 comes into operation on proclamation but not later than by 1 March 2009.

[4]. Inserts definitions of public health emergency order and serious risk to public health into the Act.

[5]. Inserts a new Division 5 concerning public health emergencies into Part II of the Act.

New section 22D provides that the Secretary may make a public health emergency order where there is a serious risk to public health or a public health emergency and new section 22E lists the matters which must be specified in a public health emergency order and section 22E(f) provides that a public health emergency order may not be in force for a period exceeding 6 months.

The new section 22F provides that a public health emergency order authorises a person or class of persons to obtain and possess, sell or supply a specified poison or controlled substance in accordance with the order.

New section 22G provides that an order may be extended, amended or revoked and 22H provides for publication of the orders in the Government Gazette.

Schedule 8 and 9 poisons

Part 3 (clauses 6 to 13) make amendments relevant to certain prescribed poisons in Schedule 8 and 9 of the Act.

[7]. Creates a new Subdivisions 2 and 3 in Part 3. Subdivision 2 concerns notification of drug-dependent persons. Subdivision 3 deals with Schedule 9 poisons, which include heroin, LSD and cannabis.

[8]. Inserts a new Subdivision 4 into the Act, which concerns Schedule 8 permits. Schedule 8 poisons are drugs of dependence commonly used to treat medical conditions such as severe pain and attention deficit disorder. They include morphine and dexamphetamine.

[9]. Inserts a new section 35 that makes it an offence for a practitioner to administer, supply or prescribe a Schedule 8 poison except in compliance with the Schedule 8 permit.

[14]. Provides for the automatic repeal of this amending Act on 1 March 2010.

Charter Report

Keywords: Privacy – Notification of drug-dependent person

Charter s. 13 gives people the right not to have their ‘privacy unlawfully or arbitrarily interfered with’.
The Committee notes clause 7 (substituting s. 33 of the Drugs, Poisons and Controlled Substances Act 1981) requires that registered medical practitioners notify the Secretary to the Department of Human Services that a patient is a drug-dependent person if the patient asks for a certain Schedule 4 poisons or a Schedule 8 or 9 poison or is to be treated with such a poison. The Committee considers that clause 7 may engage such patients’ Charter right not to have their privacy unlawfully or arbitrarily interfered with.

The Statement of Compatibility remarks:

The requirement to notify the secretary is limited to a very specific set of circumstances. The requirement to notify in certain circumstances is intended to limit and control the supply of drugs of dependence, thus protecting both individuals and the community at large from harm.

The Committee observes that, while ‘drug-dependent person’ is not defined in the Act, it is defined in the Alcoholic and Drug-Dependent Persons Act 1968 to mean ‘a person who habitually uses drugs of addiction to such an extent that he has lost the power of self-control with respect to the use of drugs of addiction’. The Committee also observes that the new section 33 requires notification only in particular circumstances, in contrast to the blanket requirement in the existing s.33. The Committee considers that clause 7 is compatible with patients’ Charter right not to have their privacy unlawfully or arbitrarily interfered with.

Keywords: Liberty and security – Permit required for medical practitioner to administer, supply or prescribe a Schedule 9 poison to a patient – Whether a ‘law’

Charter s.21(1) gives everyone ‘the right to liberty and security’. The right to liberty includes a right ‘to make decisions that are of fundamental personal importance’: B(R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315, 368. The right to security includes ‘a right to access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction’: R v Morgentaler [1988] 1 SCR 30, 34. Charter s. 7(2) provides that human rights ‘may be subject under law only to such reasonable limits as can be demonstrably justified’.

The Committee notes that clause 7 (inserting new sections 33A-33D into the Drugs, Poisons and Controlled Substances Act 1981) bars a ‘registered medical practitioner who considers it necessary to administer, supply or prescribe a Schedule 9 poison to or for one of his or her patients’ from doing so without a permit. New section 33B provides that the Secretary of the Department of Health Services may issue a permit, including any ‘terms and conditions that the Secretary considers appropriate’, and may also amend, suspend or revoke such a permit. New sections 33C & 33D provide for criminal offences for medical practitioners who administer, supply or prescribe a Schedule 9 poison in breach of the conditions of a permit or without a permit.

The Second-Reading Speech remarks:

Schedule 9 poisons include heroin, LSD and cannabis. It is therefore appropriate to clarify the requirement for a permit to be held by a practitioner before proceeding to treat a patient with a schedule 9 poison. This is consistent with current requirements under the Drugs, Poisons and Controlled Substances Regulations 2006.

The Committee observes that existing ss. 34 & 35 only regulate the supply of schedule 9 poisons to drug-dependent people or to anyone for more than eight continuous weeks; however, existing reg. 7 of the regulations criminalises the supply of a schedule 9 drug (and related conduct) to anyone without a permit.

The Committee also observes that a Canadian court has held that a law that prevents a person from obtaining marihuana for medical treatment ‘violates his right to liberty and security of the person’: R v Parker (2000) 49 OR (3d) 481; 177 DLR (4th) 385, [10]. The Committee considers that clause 7 may limit the Charter right of Victorian patients with medical conditions that require treatment with schedule 9 drugs to liberty and security.

The Committee further observes that there are well-known policy reasons to regulate the use and movement of schedule 9 poisons anywhere in the community and considers that those reasons may justify the limitation of Charter rights under Charter s. 7(2). However, the Committee notes that Charter s. 7(2) provides that only a ‘law’ may limit Charter rights and that overseas courts interpreting similar provisions have held that such a law must be appropriately circumscribed and accessible.

The Committee is concerned that new section 33B does not contain any criteria or other limitation on the Secretary’s discretion to grant or refuse a permit, or the terms on which it is granted or when it may be suspended or revoked. The Committee observes that the Canadian court mentioned above held that a similar provision was incompatible with that nation’s Charter as ‘the plenary discretion vested in the Minister precludes a finding that this is a reasonable limit’ under the Canadian equivalent to Charter s. 7(2): R v Parker (2000) 49 OR (3d) 481; 177 DLR (4th) 385, [174]-[193].

The Committee will seek further information from the Minister as follows:

1. In what circumstances will the Secretary refuse to grant a permit under new section 33B to a medical practitioner who believes that a schedule 9 drug is necessary to treat a particular patient?

2. Will those circumstances and any other guidelines or criteria that the Secretary will consider be publicly available?

Pending the Minister’s response, the Committee draws attention to clause 7.

Keywords: Adequacy of statement of compatibility

The Committee notes that the Statement of Compatibility does not address the compatibility of new sections 33A-33D with the rights of Victorian patients with medical conditions treatable by Schedule 9 poisons to liberty and security of the person. The Committee reiterates its view stated in Alert Digest No. 9 of 2007 that:

where there is a reasonable prospect that a provision in a Bill may test or infringe Charter compatibility that issue should be drawn to the attention of the Parliament and a reasoned, even if brief, analysis of why the provision is nevertheless considered compatible with the Charter should be outlined.

The Committee observes that a provision of a bill may engage a Charter right even when it replicates an existing provision contained in another law (e.g. in this instance, the regulations to the principal Act.) This is especially the case when the existing provision was enacted prior to the commencement of the Charter.

The Committee also notes that the Statement of Compatibility does not identify by clause or section number any of the provisions it discusses. The Committee reiterates its view, stated in Alert Digest No. 14 of 2007, that –

The Committee will raise these concerns with the Minister.

The Committee makes no further comment