Bills Digest no. 178 2009–10
Crimes Amendment (Royal Flying Doctor Service) Bill
2010
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Crimes Amendment (Royal Flying Doctor
Service) Bill 2010
Date introduced: 2 June 2010
House: House
of Representatives
Portfolio: Home Affairs
Commencement: The Act will commence upon Royal Assent.
Links: The
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Crimes
Amendment (Royal Flying Doctor Service) Bill 2010 (the Bill) is
firstly to replace the offence of causing ‘prescribed
narcotic substances’ to be carried by post contained in
subsection 85W(1) of the Crimes Act 1914 (the Crimes Act)
with an offence of causing a ‘controlled drug’ or a
‘controlled plant’ to be carried by post (as defined by
the Criminal Code Act 1995 (the Criminal Code). Secondly, the Bill
will create an express exemption to the offence for the
‘medical chest’ service of the Royal Flying Doctor
Service (RFDS). This exemption will cover both Australia Post
employees and RFDS employees, contractors and subcontractors.
The RFDS has provided invaluable health services to rural,
remote and regional Australia for over 80 years. Since the 1940s
RFDS first aid kits or ‘medical chests’ and their
contents have been standardized. This has meant that precious time
is not wasted in establishing what medicines are available before
treatment can be administered by or on behalf of a registered RFDS
doctor. Medical chests enable the RFDS to administer medical
treatment to people ‘on-site’ but also to provide
remote treatment to those that require emergency evacuation. An
example of how the service works in practice is provided on the
RFDS website:
A worker on a cattle station or exploration
camp has an eye infection. It isn't serious enough for an
evacuation flight but it needs treatment. The station is 200 km
from the nearest doctor or nursing post so a long road trip would
be required to have it seen to.
If there is a medical chest at their location,
the worker can call the RFDS on our medical advice line and ask for
medical assistance. The call would then be transferred to an RFDS
doctor, who will speak to the patient and diagnose the condition
over the phone. The doctor will then prescribe a drug from the
chest, for example, number "134" antibiotic eye drops, and give the
patient instructions on what to do.
At the end of the phone consultation, the
doctor will also provide the patient with a consult number which is
needed to re-order the drug once it has been used.
This scenario is also applicable to emergency
situations. In the event of something serious like an amputation,
crush injury or severe burn, medical chest custodians have access
to RFDS doctors who will assess the situation via phone, prescribe
appropriate pain relief and/or other medication, and arrange for an
aeromedical evacuation if necessary.[1]
According to the RFDS website, medical chests contain a range of
non-pharmaceutical and pharmaceutical items and a large number of
the latter are ‘prescription only’ items. The use of
prescription only items is subject to direct consultation with a
RFDS doctor and it is the doctor’s responsibility to
correctly diagnose and prescribe.[2] Only authorized, registered custodians are
permitted to manage medical chests and they are encouraged to have
completed a Senior First Aid Certificate.[3] The RFDS emphasises that extreme care
is taken to prevent illicit access to the medical chest and in some
circumstances, medical chests can be forfeited.[4]
The RFDS receives Commonwealth funding to replenish chest items
free of charge to remote locations where there is a duty of care to
the public, such as outback schools, stations, nursing posts,
indigenous communities and roadhouses.[5] The RFDS is responsible for over 3000
medical chests throughout Australia.[6] The chests were, up until the beginning
of this year, replenished through delivery by Australia Post
because ‘many of the locations were too remote to be serviced
by couriers or other transport networks’.[7] As a result of the cessation of
delivery, some medical chests have been left without essential
supplies.[8]
According to the second reading speech, delivery of
pharmaceuticals utilising Australia Post for the medical chest
service ceased following the discovery in early 2010 that this
practice contravenes section 85 of the Crimes Act.[9] However, the Explanatory
Memorandum takes a more cautious approach. It simply states that
there is uncertainty surrounding the interpretation of the
offence in its current form.[10]
Existing subsection 85W(1) of the Crimes Act makes it an offence
punishable by a maximum two years imprisonment to
‘intentionally cause to be carried by post an article that
consists of, encloses or contains a prescribed narcotic substance
within the meaning of the Customs Act 1901’ (the
Customs Act).
The definition of ‘prescribed narcotic substance’ in
the Customs Act was repealed in 1990 by the Customs and Excise
Legislation Amendment Act 1990.[11] Prior to it being repealed it defined
‘prescribed narcotic substance’ as:
...a narcotic substance the name of which is
specified in Column 1 of Schedule VIII or any other narcotic
substance for the time being declared by the regulations to be a
prescribed narcotic substance.
Immediately prior to the Customs and Excise Legislation
Amendment Act 1990 coming into force, there were only nine
substances listed in Schedule VIII of the Crimes Act and only one
(morphine) was potentially of use in a medical context. The other
eight remaining illicit substances included:
- Cannabis, Cannabis resin and Tetrahydrocannabinols
- Cocaine
- Heroin
- Lysergic Acid and Lysergide, and
- Opium
Thus prior to 1990 it was not an offence under the Crimes Act to
send medicines (other than more than 1.5 kilograms of morphine)
through the mail.[12] When the definition of ‘prescribed narcotic
substance’ was repealed from the Customs Act in 1990 the
offence of causing narcotic substances to be carried by
post effectively became what can perhaps best be described as
frustrated because it was no longer clear what substances
could and could not legally be sent through the Post. The Acts
Interpretation Act 1901 makes it clear that when a provision
is repealed, unless a contrary intention appears, the repeal cannot
revive anything existing at the time at which the repeal takes
effect.[13] It is
not at all surprising that there have been no prosecutions under
section 85W in the last twenty years.
Notwithstanding the uncertainty surrounding the offence
contained in section 85W, Australia Post has interestingly
maintained in its terms and conditions of service (which are made
pursuant to section 32(1)(b) of the Australian Postal
Corporation Act 1989) that ‘a poison, drug or
medicine[14] which
is a narcotic substance shall not be lodged for carriage by post
nor carried by post’.[15] In doing so, they appear to have replaced the
repealed definition of ‘prescribed narcotic substance’
with the existing definition of ‘narcotic substance’ in
the Customs Act which is more expansively defined as (amongst other
things) a ‘border controlled drug’ which currently
includes some 155 listed drugs in the Criminal Code.[16]
The Explanatory Memorandum notes that the amendment proposed by
item 1 (that is, replacing the definition of
‘prescribed narcotic substance’ with ‘controlled
drug’ or ‘controlled plant’ as defined in the
Criminal Code gives effect as closely as possible to the original
policy intention behind the offence in section 85W’.[17]
Section 85W was inserted into the Crimes Act by the
Telecommunications and Postal Services (Transitional Provisions
and Consequential Amendments) Act 1989. It was one of a number
of provisions which comprised Part VIIA of the Crimes Act (offences
relating to postal services). The second reading speech clarifies
that the offences to be inserted (including section 85W), though
revised to take into account developments since 1975, covered the
same ground as in the existing legislation. The offence of sending
without lawful authority, by post or courier service a postal
article that encloses or contains a prescribed narcotic substance
within the meaning of the Customs Act was inserted into the now
repealed Postal Services Act 1975 in 1986.[18] The then
Attorney-General, Lionel Bowen explained that the original policy
intention behind the insertion of section 85W was to create an
offence of sending illicit drugs through the mail:
The Special Premiers Conference on Drugs agreed
on 2 April 1985 that the Commonwealth should create an offence of
sending illicit drugs through the mail…This amendment will
provide another weapon in the Government's fight against drug
trafficking.[19]
The amendment
proposed by item 1 would make it an offence to
cause a controlled drug or plant to be carried by post. The
15 controlled drugs currently listed in the Criminal Code include:
- Amphetamine
- Cannabis (in any form, including flowering or fruiting tops,
leaves, seeds or stalks, but not including Cannabis resin or
Cannabis fibre), Cannabis resin
- Cocaine
- Gammabutyrolactone (GBL)
- Hydroxybutanoic acid (GHB)
- Heroin (diacetylmorphine)
- Lysergide (LSD)
- Methamphetamine
- Methylenedioxyamphetamine (MDA)
- Methylenedioxymethamphetamine (MDMA)
- Opium
- Psilocine
- Psilocybine, and
- Tetrahydrocannabinol (THC)[20]
Interestingly, morphine, the only narcotic substance of
potential use in a medical context to have been originally
prescribed has been left off this list, as has pethidine which, as
the second reading speech notes, is also used by the RFDS.[21] In the time available,
it has not been possible to ascertain the reason for this.
The Explanatory Memorandum notes that the amendments proposed in
this Bill will have no financial impact on Government
revenue.[22]
Item 1 amends existing subsection 85W(1) of the
Crimes Act by replacing the words ‘prescribed narcotic
substance within the meaning of the Customs Act
1901’ with the words ‘controlled
drug or a controlled plant, within the meaning of Part 9.1 of
the Criminal Code’. The definitions of these terms are
explained above in key issues. This amendment ties the offence of
causing narcotic substances to be carried by post to the prescribed
list of drugs contained in the Criminal Code instead of the Customs
Act.
Item 2 inserts proposed subsection
85W(3) into the Crimes Act which creates an express
exception for conduct which is engaged in, and in accordance with,
the medical chest program. This exception to the offence contained
in subsection 85W(1) covers a person acting in the course of their
duties, powers and functions as an employee of Australia Post or an
employee or contractor of the RFDS. As existing section 85W uses
the words ‘cause to be carried by post’ which are
defined as ‘carried by or through Australia Post’ in
existing section 85E, the offence is said to ‘apply uniquely
to persons arranging for the delivery of these articles by
Australia Post’.[23]
Proposed subsection 85W(4) defines
‘Medical Chest Program’ to be the program that supplies
packages of pharmaceutical products and medical supplies to remote
locations across Australia administered by the RFDS. The
Explanatory Memorandum notes that this precise definition will
‘provide very clear parameters around the scope of the
proposed exception and ensure that there are no unintended
consequences for the operation of the offence in subsection
85W(1)’.[24]
The terms ‘RFDSA employee or contractor’ and
‘Royal Flying Doctor Service of Australia’ are also
exhaustively defined. The latter is to account for the various
independent entities that comprise the RFDS.[25]
Item 3 clarifies that the proposed amendment
contained in item 1 will have prospective effect
(that is, it will apply once the Act has received Royal Assent).
The Explanatory Memorandum acknowledges that this item will not
have retrospective effect because there is uncertainty surrounding
the interpretation of existing section 85W(1).[26]
In contrast, the proposed amendment contained in item
2 will have retrospective effect (that is, it will apply
to conduct engaged in by a person before, on or after
commencement).
Concluding comments
Medical chests provide what the RFDS describe as a ‘mini
pharmacy’ to many remote locations throughout Australia.
These chests undeniably provide an invaluable service. They contain
medication which is used in emergency situations to provide
immediate treatment while awaiting aeromedical evacuation, if
necessary. They are also used in non-emergency situations which
prevent people from travelling excessive distances for treatment or
the RFDS from making unnecessary flights. Overall, the RFDS medical
chest service clearly provides enormous comfort to those living in
remote locations. RFDS medical chests have not been replenished for
six months due to what has been described as an inadvertent
contravention of section 85W of the Crimes Act which has only
recently come to light. However, as this section was expressly
drafted to prevent illicit drugs from being trafficked,
rather than small quantities of pharmaceutical products being sent
through the post, it is not entirely clear that the RFDS has been
contravening the Crimes Act or would do so under the new proposed
definition of ‘controlled drug’ which does not include
morphine or pethidine. The materials
accompanying the Bill do not adequately address these issues.
Accordingly, it is difficult to clearly ascertain the need for an
express exemption for the RFDS medical chest program. Arguably, if
the exemption is necessary, it should be drafted in
broader terms to protect other people or organisations sending or
carrying by post pharmaceutical products and medical supplies that
may also be inadvertently caught by the operation of the amended
provision.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2759.
Elibritt Karlsen
15 June 2010
Bills Digest Service
Parliamentary Library
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