ALERT DIGEST 4 of 1994
Part 1
The Committee has considered the following Bills
Alcoholics and Drug-dependant Persons (Amendment) Bill
Medical Practice Bill
Witness Protection (Amendment) Bill
Friendly Societies (Benefit Funds) Bill
State Bank of South Australia (Transfer of Undertaking) Bill
Environment Protection (General Amendment) Bill
City of Greater Bendigo Bill
Legal Aid Commission (Amendment) Bill
Children and Young Persons (Miscellaneous Amendments) Bill
Sentencing (Victim Impact Statement) Bill
Equipment (Public Safety) Bill
National Crime Authority (State Provisions) (Amendment) Bill
Transport (Further Amendment) Bill
The Committee reports on the following Bills
Alcoholics and Drug-dependant Persons (Amendment) Bill
Medical Practice Bill
Witness Protection (Amendment) Bill
Friendly Societies (Benefit Funds) Bill
State Bank of South Australia (Transfer of
Undertaking) Bill
Environment Protection (General Amendment) Bill
City of Greater Bendigo Bill
Legal Aid Commission (Amendment) Bill
Children and Young Persons (Miscellaneous
Amendments) Bill
Sentencing (Victim Impact Statement) Bill
Equipment (Public Safety) Bill
National Crime Authority (State Provisions)
(Amendment) Bill
Transport (Further Amendment) Bill
Mineral Resources Development (Further
Amendment) Bill
Consideration is proceeding on the following Bill
Accident Compensation (Amendment) Bill
ALCOHOLICS AND DRUG-DEPENDENT PERSONS (AMENDMENT) BILL
1.1
This Bill was introduced into the Legislative Assembly on 9 March 1994 by The Honourable Marie Tehan with The Honourable Pat McNamara.
1.2
This Bill makes a number of amendments to the Alcoholics and Drug Dependent Persons Act 1968. The main purpose of the Bill however is to permit the private sector to provide, under contract, services which are governed by the Alcoholics and Drug Dependent Persons Act 1968. In particular, it provides for the appointment by the Governor-in-Council of an administrator in the event that a service is inefficient or ineffective.
1.3 ¯ The Provision of Services by the Chief General Manager
Clause 4 relates to the provision of services by the Chief General Manager. It states that the Chief General Manager may provide any services that he/she considers appropriate for the care, treatment or rehabilitation of alcoholics or drug-dependents.
The previous provision specified that the Chief General Manager establish and maintain particular services and centres such as research and preventative services, day hospitals, reception and assessment centres, clinics and residential centres. It also specified that the Chief General Manager establish and maintain any other services such as the Chief General Manager thinks fit.
The new section 4A inserted by Clause 4 relates to the provision of services under contract. In particular, it sets out the conditions of the contract. A contract may:-
- relate to a particular service or type of services specified in the contract;
- remain in force for a period no greater than three years;
- provide for termination of the contract if the Chief General Manager thinks fit, if
standards are not met, the service is inefficient or the service provider is unable to
provide the services specified under the contact either because of its financial position
or otherwise fails to comply with the contract;
Under this part of the Clause, ie, section 4A(2)(iv), the Chief General Manager is obliged after considering the report of the Inspector, to consider any objections made under section 19(5). Note that the old provisions, section 19(5)-(8) still apply so that if a particular service provider is removed from the list, the service provider or in the old words, the "organisation or body which conducts the service" can still appeal to the Minister.
- provide for the termination of the contract by the Chief General Manager if an administrator under section 4B so recommends and the Chief General Manager is of the opinion that the termination of the contract is justified;
- may require accounts and financial statements to be kept and audited by the Auditor-General;
- may provide for variation of the contract;
- may contain any other provisions not inconsistent with the Health Service Act 1988 or the Alcoholic and Drug-dependent Persons (Amendment) Act when it is proclaimed.
The Committee makes no further comment.
1.4 ¯ Appointment of an Administrator
Clause 4 inserts a new section 4B which relates to the appointment of an administrator. The new section 4B provides that the Minister may recommend to the Governor-in-Council that an administrator be appointed for a contracted service, if the Minister is of the opinion that the contracted service is inefficient, ineffective or does not comply with standards.
The Committee makes no further comment.
1.5 ¯ Minister to give Notice - Objections - The Hearing of the Objections
Under new section 4B(2), the Minister is obliged to give notice to the contracted service provider of the grounds on which it is intended to make the recommendation to the Governor-in-Council. The contracted service provider has 14 days to object in writing and may request to be represented at a hearing of the objection. The contracted service provider is not entitled to be represented at the hearing of an objection, although the Minister must consider the objection pursuant to section 4B(2)(b).
The Committee wrote to the Minister on 7 April 1994. The Minister replied in a letter dated 19 April 1994 which is set out.
"Thank you for your letter of 7 April 1994 in which you advise me that the members of your Committee have considered the above Bills.
Turning to the Alcoholics and Drug-dependent Persons (Amendment) Bill, in your letter you sought my response to the comments of your Committee "in relation to the new 4B(2) and the new 4B(8)". The reference to s.4B(8) appears to be erroneous as that sub-section concerns unrelated matters. Perhaps you mean s.4B(9)?
Sub-section (2) of the proposed section 4B ensures that procedural fairness is guaranteed in the exercise of the Minister's administrative powers under that section to recommend to the Governor in Council that an administrator be appointed for a contracted service.
Procedure fairness seeks to facilitate decisions which are informed and accurate, and which instil a sense of having been fairly dealt with.
Sub-section (2) does this by -
(a) requiring notice to be given to the contracted service provider specifying the ground on which it is intended to make the recommendation;
(b) allowing the contracted service provider to present his case in writing, and orally, if there is an oral hearing. Procedural fairness does not prescribe an oral hearing as the compulsory form of participation. One may object orally or on paper. Submission of objections in writing within 14 days of service of the notice gives the contracted service provider reasonable opportunity of presenting his case which is "one essential" of procedural fairness (Russell v Duke of Norfolk [1949] 1 All E.R. 109 at 118 per Tucker L.J.; and
(c) requiring the Minister to consider any objection made in accordance with s. 4B(2)(a) before making a recommendation.
I therefore suggest to the Committee that a right given by sub-section (2) of s.4B depends upon the clearly defined administrative powers spelt out in that sub-section which accord with procedural fairness."
1.6 ¯ Contracted Service Provider may request appointment of administrator
Under new section 4B(3), a contracted service provider may request the Minister to recommend to the Governor-in-Council that an administrator be appointed for a contracted service of that provider.
The Committee makes no further comment.
1.7 ¯ Administrator may recommend to Chief General Manager termination of contracted service
Under new section 4B(8), the administrator may recommend to the Chief General Manager that the contract relating to the contracted service should be terminated. The Chief General Manager must give notice of the recommendation and the ground for the recommendation without delay to the contacted service provider. The contracted service provider has 14 days to object in writing and may request to be represented at the hearing of the objection. The contracted service provider is not entitled to be represented at the hearing although the Chief General Manager must consider any objection made pursuant to section 4B(9)(b).
The Committee makes no further comment.
1.8 ¯ Provision of funds to contracted service providers
New section 4C provides that with the Minister's approval, the Chief Manager, may, out of funds administered by the Chief General Manager, for the purposes of care and treatment of alcoholics and drug- dependant persons, provide funds to any contracted service providers, for any purposes and subject to any conditions that the Chief General Manager considers appropriate.
The Committee notes that whilst there is a very broad power delegated to the Chief General Manager, it is limited in that it is only delegated to the Chief General Manager and must be approved by the Minister. The Committee makes no further comment.
1.9 ¯ Assessment and treatment centres
Clause 5 provides that services and facilities may be appointed by the Governor-in-Council to be assessment, treatment or detention centres. These services or facilities may be provided by the Chief General Manager or a contracted service provider or an alcohol and drug service listed under section 8A of the Alcoholics and Drug-dependent Persons Act 1968.
The new section 5(2) provides that the Governor-in-Council, may, on the Minister's recommendation, amend or revoke an appointment by a notice published in the Government Gazette. The Minister must not recommend such revocation or amendment unless notice and a reasonable opportunity is given to the organisation to make submissions about the proposed recommendation. The Minister must consider any submissions made.
The Committee wrote to the Minister to request her advice as to whether this provision should be consistent with the other provisions in the Bill, namely Clauses 4B(2) and 4B(8), so that a "reasonable opportunity" of 14 days is specified and that there be a hearing with a request to be heard.
1.10 ¯ Abolition of licensing requirements
Clause 6 repeals section 7 of the Act which provides for the licensing of private treatment centres. The Committee notes the comments in the Second Reading Notes:-
"The Act at present allows for private treatment centres to be licensed. The licensing provisions are not relevant to current practice and no licences have ever been issued. It is therefore proposed to repeal this provision."
The Committee makes no further comment.
1.11 ¯ Listing requirements
Clause 7 amends section 8A of the Act to remove the need to list services provided by the Chief General Manager or by a contracted service provider. The Committee notes the comments in the Second Reading Speech:-
"The current system of listing services under the Act will be retained but the proposed amendments will require that only those services not provided directly by the Chief General Manager or pursuant to a contract with the Chief General Manager need be listed. The amended listing provisions will allow both service providers and the government to avoid unnecessary administration."
The Committee makes no further comment.
