Wednesday, 8 March 2023

Drugs, Poisons and Controlled Substances Amendment (Medically Supervised Injecting Centre) Bill 2023

Statement of compatibility

Gabrielle WILLIAMS (Dandenong – Minister for Mental Health, Minister for Ambulance Services, Minister for Treaty and First Peoples) (10:40): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Drugs, Poisons and Controlled Substances Amendment (Medically Supervised Injecting Centre) Bill 2023.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Drugs, Poisons and Controlled Substances Amendment (Medically Supervised Injecting Centre) Bill 2023.

In my opinion, the Drugs, Poisons and Controlled Substances Amendment (Medically Supervised Injecting Centre) Bill 2023 (Bill), as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter.

I base my opinion on the reasons outlined in this statement.

Overview

The Bill makes various amendments to the Drugs, Poisons and Controlled Substances Act 1981 (the Act) including amendments which:

a. provide for a licensed medically supervised injecting centre to operate on an ongoing basis by providing that a medically supervised injecting centre licence may be renewed more than once.

b. provide that more than one medically supervised injecting centre licence may be issued but that there must not be more than one such licence in force at a time.

c. provide for the commencement of a new medically supervised injecting centre following revocation of an existing medically supervised injecting centre licence.

d. provide for the transfer of a medically supervised injecting centre licence.

e. make changes in relation to the roles of supervisors and director of the licensed medically supervised injecting centre.

f. provide for further review in relation to the licenced medically supervised injecting centre.

g. allow the Secretary to delegate certain powers in relation to the internal management protocols.

h. make further provision regarding how planning schemes and planning amendments operate in relation to the medically supervised injecting centre.

i. make further provision in relation to the procedures for suspending and reinstating a medically supervised injecting centre licence.

j. minor and technical changes.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The human rights protected by the Charter that are relevant to the Bill are the right to life (section 9), the right to privacy and reputation (section 13), the right to a fair hearing (section 24), and the right not to be punished more than once (section 26).

Right to life

Section 9 of the Charter provides that every person has the right to life and has the right not to be arbitrarily deprived of life. The right to life is one of the most fundamental of all human rights. It is concerned with both the protection and preservation of life.

Under international human rights law, the right in section 9 of the Charter includes an obligation on the state to refrain from conduct that results in the arbitrary deprivation of life, as well as a positive duty to introduce appropriate safeguards to minimise the risk of loss of life.

The Bill extends an existing legislative scheme that enables drug users to attend a medically supervised injecting centre in order to self-administer certain prohibited drugs or substances.

The injection of prohibited drugs or substances presents dangers to the person self-administering those substances in that way. Accordingly, the scheme has the capacity to engage the right to life.

The object of the scheme previously established under the Act and which is further amended by the Bill is not to encourage or condone the use of prohibited substances but rather is one of harm minimisation.

The State’s obligation to respect a person’s right to life includes a positive duty to properly and openly investigate health risks that may arise because of drug addiction and to take positive steps to protect the lives of those vulnerable persons who are affected. Thus ultimately minimising the harms that may be caused or associated with this health issue within the community.

Clause 7 of the Bill provides for an amendment to the Act that would allow the trial period of any licensed medically supervised injecting centre to be extended by the Secretary for 4 years after the day previously specified in the licence as the day until which the licence will remain force unless sooner surrendered, or, revoked and for such a licence to be able to be renewed more than once.

The extension of the trial of the medically supervised injecting centre promotes and protects the right to life in a number of respects.

Firstly, the Bill continues to take positive steps to reduce the number of deaths caused by drug overdose and otherwise continues to improve access to drug treatment, health and welfare services. In early 2020, an independent panel chaired by Professor Margaret Hamilton evaluated the trial of the medically supervised injecting centre and recommended that the trial be extended so that more Victorians have access to the life saving services provided by this facility.

Secondly, the Bill protects and promotes the right to life of other members of the community. In particular, the medically supervised injecting centre continues to reduce the risks to emergency services workers and community members arising from the use of illicit drugs, particularly in public places.

Thirdly, the Bill also promotes the right to life of drug users and other members of the community by ensuring that drug users continue to be referred to services for bloodborne diseases and needle and syringe exchange programs. This includes but is not limited to HIV infection and hepatitis C.

Privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Privacy is a broad concept and includes privacy of information about a person and protection against interference in relation to a person’s workplace environment.

Section 13(b) provides that a person also has the right not to have his or her reputation unlawfully attacked. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The following clauses in the Bill engage the right to privacy.

Review

Clause 29 of the Bill inserts proposed new section 55PA which requires the minister to conduct a review and authorises the minister to access, collect, use and disclose any data or information to complete the review.

The powers set out in this section are subject to the protections in the health privacy principles in the Health Records Act 2001 and otherwise the information privacy principles in the Privacy and Data Protection Act 2014. Further the purpose of the minister accessing, collecting, using and/or disclosing any data is for the purpose of the review.

Conditions of a medically supervised injecting centre

Clause 13 of the Bill will enable the Secretary to direct a licensee to enter into an agreement or deed under new section 55EA(5).

This provision may engage the right to privacy by compelling a person to take certain actions where they hold a medically supervised injecting centre licence.

While the exercise of the power to direct a licensee to enter into an agreement or deed might interfere with individual autonomy in a working environment, any such interference will be lawful and not arbitrary.

The power to direct the licensee to enter into an agreement or deed is targeted to those conditions that are necessary to ensure compliance with the aims of the Bill, that is, to ensure that the operation of the medically supervised injecting centre is as far as practicable not interrupted and to further the purpose of protecting the lives of those affected by drug addiction, and, to minimising related harms.

Accordingly, I consider that the above provisions in relation to the review and conditions of a medically supervised injecting centre are compatible with the right to privacy in section 13 of the Charter.

Right to a fair hearing

Section 24(1) of the Charter provides, amongst other things, that a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Transitional obligations and transfer of a licence

Clause 13 of the Act inserts new section 55EA and new section 55EB.

Section 55EA provides that agreements or deeds may be entered into between the Secretary and a person who holds, or proposes, to hold a medically supervised injecting centre licence (responsible person). A responsible person may as part of this agreement or deed be subject to transitional obligations the aim of which is to ensure the operation of the medically supervised injecting centre licence is as far as practicable not interrupted.

Section 55EB provides for a penalty for breach of the transitional obligations or termination of the relevant agreement or deed. Specifically, if an agreement under section 55EA includes a penalty provision that does not seek to impose a penalty which exceeds 100 penalty units, then, in relation to a breach constituted by a failure to comply with a transitional obligation or for termination of the agreement or deed a person is liable to pay as a debt due to the State the amount required to be paid by the provision despite anything to the contrary in a rule of or principle at common law.

Clause 22 of the Bill inserts new section 55JA which contains new provisions that require a licensee to apply to the Secretary for transfer of a licence.

This section requires that a medically supervised injecting centre licence must not be transferred unless the proposed transferee consents to the transfer and the Secretary has approved internal management protocols for the proposed transferee. A proposed transferee under this section is voluntarily applying for a licence under a scheme which vulnerable members of the community will rely on and where it is a requirement that they be able to ensure that the operation of the medically supervised injecting centre is as far as practicable not interrupted.

The purpose of this provision is to ensure the integrity of the licensing scheme associated with the medically supervised injecting centre is not compromised and that it furthers the purpose of protecting the lives of those affected by drug addiction, and, to minimising related harms.

While case law has interpreted ‘civil proceeding’ in section 24 of the Charter broadly, it does not extend to the kind of agreements or administrative decision-making that will be undertaken by the Secretary pursuant to these provisions (in that the Secretary is unlikely to be considered a ‘tribunal’ for the purpose of this right). To the extent that it is relevant, I otherwise consider that new sections 55EA and 55EB would be otherwise be consistent with the right to a fair hearing, as the Bill provides for clear, accessible, reasonable and proportionate criteria for entering into agreements, deeds and for the determination of applications of a transfer of a licence.

Accordingly, I consider that the above provisions in relation to the transfer of a licence are compatible with the right to fair hearing under section 24 of the Charter.

Right to not be tried or punished more than once

Penalty for breach of transitional obligation or termination of agreement or deed

Clause 13 of the Bill inserts section 55EB into the Act.

As noted above, section 55EB provides for penalty provisions in agreements or deeds made pursuant to those provisions and which do not exceed 100 penalty units. The introduction of penalty provisions in the context of agreements or deed contemplated by section 55EB is relevant to consider as part of this right.

The imposition of civil penalties, however framed, will generally not engage the right under section 26 of the Charter, unless the penalty is in the nature of a punishment. The new provisions are identified as penalty provisions and introduce a penalty for breach of an agreement or deed which does not exceed 100 penalty units. This provision is largely protective in nature, with the aim of ensuring the integrity of the licensing scheme. The provision aims to ensure that operation of the medically supervised injecting centre is as far as practicable not interrupted and to ensure that it furthers the purpose of protecting the lives of those affected by drug addiction, and, to minimise related harms.

Having regard to this purpose, the penalty arising out of a breach a transitional obligation or termination of an agreement or the deed is protective in that it serves the purpose of ensuring those who depend on the medically supervised injecting centre continue to have access to this service. Moreover, these penalties apply to persons who have elected to provide a service which vulnerable people will rely on, and therefore such penalties could be viewed as protective rather than punitive in nature.

While a penalty of 100 penalty units for a breach a transitional obligation or termination of an agreement or deed might be significant for a natural person, the penalty relates to a person operating a facility that vulnerable people will rely on and which is required to continue to be in operation during any transfer of a licence. Additionally, breaches have the potential to directly cause, or indirectly contribute to, significant and irreversible harm or death to those who rely on the medically supervised injecting centre.

Therefore, given this, I consider the penalty appropriate and not disproportionate given the central role that a responsible person will play in the scheme. Finally, no sanction of imprisonment attaches to failure to pay a penalty relating to a breach a transitional obligation or termination of an agreement or deed. This provision is largely protective in nature, with the aim of ensuring the integrity of the licensing scheme and to ensure that operation of the medically supervised injecting centre is as far as practicable not interrupted.

Accordingly, I conclude that the penalty described in this provision is civil in nature and thus does not engage this Charter right.

I consider that the bill is compatible with the Charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified.

Are the relevant Charter rights actually limited by the Bill?

The Bill does not limit any rights protected by the Charter.

The Bill has the capacity to, but does not engage, the right to life (section 9), right to a fair hearing (section 24) and right to not be tried or punished more than once (section 26). These matters arise by reference to the extension of the MSIC trial, and, broadly because of the operation of the transfer provisions related to a medically supervised injecting centre licence which aims to ensure that the operation of the medically supervised injecting centre is as far as practicable not interrupted.

The Bill engages the right to privacy because:

a. Clause 29 inserts proposed section 55PA which requires the minister to conduct a review and authorises the minister to access, collect, use and disclose any data or information to complete the review.

b. Clause 13 of the Bill will enable the Secretary to direct a licensee to enter into an agreement or deed under new section 55EA(5).

Whilst the right to privacy is engaged it is not limited by the Bill because the identified clauses are neither unlawful or arbitrary.

Here any access, collection, use and/or disclosure of any data will be:

a. authorised by the Act, subject to existing protections under the health privacy principles in the Health Records Act 2001 and otherwise the information privacy principles in the Privacy and Data Protection Act 2014;

b. only used for the specific purpose of the review contemplated by section 55PA.

Further, any direction to enter into an agreement or deed will only apply to a licensee and is only to ensure the operation of the medically supervised injecting centre is as far as practicable not interrupted and to further the purpose of protecting the lives of those affected by drug addiction, and, to minimising related harms.

Accordingly, any restrictions imposed by the Bill that engage the right to privacy are lawful and not arbitrary.

Is any limit on relevant rights by the Bill reasonable and justified under section 7(2)?

Not applicable.

Guidance re use of jurisprudence and previous SOC practice

Not applicable.

The Hon. Gabrielle Williams MP

Minister for Mental Health

Second reading

Gabrielle WILLIAMS (Dandenong – Minister for Mental Health, Minister for Ambulance Services, Minister for Treaty and First Peoples) (10:40): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

In November 2017, an important Bill was presented to introduce the first trial of a medically supervised injecting room in this state’s history.

In the intervening years, the services provided by North Richmond Community Health have delivered enormous benefit to Victorians impacted by the adverse effects of injecting drugs. Today, more than 63 Victorians are still with us because of this life-saving service.

Every single life lost to drugs is a terrible tragedy, for the families and friends affected, and for the wider community. The Government recognises the impact of drug harms on the Victorian community, and we’ve worked tirelessly since coming to office to prevent and reduce these harms.

The medically supervised injecting centre is one of the many harm reduction approaches to addressing drug use implemented by this government. This is because we know that health-led policies deliver greater positive social and economic outcomes compared to criminal justice approaches.

The key aim of Victoria’s medically supervised injecting centre is to facilitate a safer setting for injecting as well as referrals of those people who use drugs, who experience significant barriers to accessing treatment, support and other services. The first supervised injecting facility opened in Switzerland in the 1980s and there are now more than 100 facilities worldwide. Most recently, the Australian Capital Territory has expressed its commitment to join Victoria and New South Wales in providing these critical services that saves lives and sometimes, change them as well.

In June 2020, an independent panel led by Professor Margaret Hamilton handed down its review of the operations at the North Richmond MSIR over its first eighteen months. In addition to saving at least 21 lives, the Panel also found that the MSIR in North Richmond had safely managed 3,200 overdoses over 119,000 visits.

Professor Hamilton’s review recommended the trial in North Richmond be extended for an additional three years. The Victorian Government accepted all 14 recommendations from this first independent review.

In late 2020, a new independent review panel was appointed, led by Mr John Ryan to undertake a further review of the North Richmond MSIR. The Panel handed down its final report, known as the Ryan review, on 21 February 2023. The review made ten recommendations, based on consultation with local community, health and drug reform experts, international evidence, and data from the North Richmond MSIR trial.

I would like to take this opportunity to thank the Review Panel for their work in preparing this report, and for contributing their expertise to a piece of work that offers an invaluable evidence-based roadmap. I would also like to extend my gratitude to the North Richmond community, the health workers and experts, as well as the clients, who all shared their thoughts and experiences which enriched this report.

Similarly to Professor Hamilton’s review, the review found that the MSIR has succeeded in its central objective: saving lives.

Since the trial’s commencement, the MSIR has safely managed almost 6000 overdoses with zero fatalities, taking pressure off local hospitals and reducing ambulance call outs. The service also connected clients to essential services, like general health and housing support. I commend North Richmond Community Health and the dedicated healthcare workers at the MSIR for leading these incredible outcomes and continuing to provide unwavering support and care to the MSIR clients. The MSIR is an incredibly complex service to deliver, as it seeks not only to prevent overdose deaths, but also engage and connect individuals, who have experienced significant stigma, trauma and shame due to their drug consumption, in support services.

The panel has recommended the Government make several changes to further improve the service including more integrated security measures and expanding targeted care for vulnerable groups with complex needs, including women and Aboriginal clients to ensure they can access the support they need.

One of the most significant recommendations is to make the North Richmond service ongoing, with an expanded service model that ensures greater access to support services like housing and mental health. By ensuring the MSIR can deliver more integrated health and social services, Government is responding in a manner that is consistent with the recommendations from the Royal Commission into Victoria’s Mental Health System and better meeting the long-term needs of both MSIR clients and the broader North Richmond community.

The introduction of this Bill reflects the government’s commitment to reduce drug harms in North Richmond. The Bill enables implementation of key recommendations of the two independent reviews of the trial, including:

• establishing the MSIR in North Richmond as an ongoing service.

• removal of limitations to the service’s model of care, improve service delivery efficiency, responsiveness, and governance.

In addition to addressing these recommendations, the Bill also supports a more efficient process for modifications to MSIR operators’ internal management protocols once they have been approved by the Secretary of the Department of Health. This is crucial given the need for all health services across Victoria to adapt to COVID safe practices without compromising client access.

The Bill includes new capacity to transfer or reissue a MSIR licence to a new provider to maintain service continuity in the event an MSIR operator is subject to profound organisational change or is unable, or unfit to continue to operate the MSIR.

Based on the Ryan review strong evidence for the MSIR being a critical lifesaving service, the Bill acquits the review panel’s recommendation to make the North Richmond MSIR ongoing. In the coming months, the Department of Health will commence the recommissioning process recommended by the review, to identify a service provider that has capacity to deliver an enhanced service model, facilitated by a workforce with expertise in complex care coordination, that will better meet the full range of MSIR client needs. To support the recommissioning, the Bill allows for the Secretary to the Department of Health to extend an existing service licence. This will enable service continuity during the recommissioning of the North Richmond MSIR to identify the best service provider to deliver the enhanced model of care.

Our work will also have a strong focus on improving safety and amenity in the surrounding area. The review panel heard from residents and business owners that the challenges created by the long-standing local drug market are ongoing and made locals feel unsafe. Improving safety and amenity in North Richmond continues to be a high priority for this government and we’ll work closely with local residents, businesses, emergency services and health and social services to improve this.

We are delivering a comprehensive assertive outreach program that will increase the presence of outreach workers in the community to engage people who are currently not accessing the MSIR. The service will also proactively patrol for discarded needles, promote safe and appropriate needle disposal and support residents and business owners to address some of the challenges caused by the drug market and drug litter.

We are also improving our governance of the MSIR by increasing cross-government collaboration and oversight of key projects in the precinct, including safety and security.

The Government remains unwavering in its work to reduce drug harms in the North Richmond community – ensuring fewer Victorians mourn the unnecessary death of a loved one and Victorians struggling with addiction, get access to the support they need to live a better life.

I commend the Bill to the house.

Cindy McLEISH (Eildon) (10:41): I move:

That this debate also be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 22 March.