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Crimes Amendment (Royal Flying Doctor Service) Bill 2010

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2008-2009-2010

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

CRIMES AMENDMENT (ROYAL FLYING DOCTOR SERVICE) BILL 2010

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

 

Amendments to be

Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the

Minister for Home Affairs, the Hon Brendan O’Connor MP)

 

 

 



CRIMES AMENDMENT (ROYAL FLYING DOCTOR SERVICE) BILL 2010

 

GENERAL OUTLINE

The Bill makes an urgent amendment to ensure that emergency medicines may be made available to treat serious illness or injury in remote areas of Australia.

It will amend section 85W of the Crimes Act 1914 to insert an exception to the offence of ‘causing narcotic substances to be carried by post’ for Australia Post and the Royal Flying Doctor Service Australia (RFDSA) and their officers, employees, agents and contractors.  The exception ensures that those organisations may arrange for the carriage of medicine by Australia Post for the purpose of enabling the RFDSA to administer its Medical Chest Program.

The Bill will also replace the reference in section 85W to ‘a controlled drug, or a controlled plant, within the meaning of Part 9.1 of the Criminal Code ’ with a reference to ‘a prescribed narcotic substance within the meaning of the Customs Act 1901 ’.  This addresses the repeal of that definition in 1990 and ensures that the offence has similar coverage to the domestic drug offences in the Criminal Code and to the original section 85W offence.   

The proposed Government amendment to the Bill will insert a further exception to the offence in section 85W for bodies or persons (or their employees or others providing services for or on their behalf), prescribed in Regulations, who arrange for the supply of medicines to remote locations for the purposes of, and in accordance with, a program prescribed in Regulations. 

The amendment will enable prescribed persons and bodies to arrange for the provision of vital medicines to remote Australian communities utilising the delivery services of Australia Post in certain circumstances.  

 

FINANCIAL IMPACT STATEMENT

The amendments to the Bill will have no financial impact.

ACRONYMS

Crimes Act                  Crimes Act 1914 (Cth)

Criminal Code             Criminal Code Act 1995 (Cth)

RFDSA                       Royal Flying Doctor Service Australia

 

 



NOTES ON CLAUSES

Amendments to Schedule 1

Amendment (1)

This amendment will replace the heading to subsection 85W(3) in the Bill, which currently refers to the exception for the RFDSA’s Medical Chest Program, with a more generic heading referring to exceptions for the supply of pharmaceutical products to remote locations.

The amendment will ensure that the heading is relevant to both proposed subsection 85W(3), as well as subsection 85W(3A), which would be inserted by Amendment (2).

Amendment (2)

The Bill updates the offence in section 85W of the Crimes Act so that the offence, as amended, will apply to the carriage, by Australia Post, of controlled drugs or controlled plants, within the meaning of Part 9.1 of the Criminal Code Act 1995 .

The Bill also inserts new subsection 85W(3) to provide an exception to the offence in subsection 85W(1) for Australia Post and the Royal Flying Doctor Service Australia (RFDSA).  Subsection 85W(3) provides that the offence in subsection 85W(1) does not apply to conduct engaged in by a person for the purposes of, and in accordance with, the ‘Medical Chest Program’ (as defined in proposed subsection 85W(4)), where that person is acting in the course of their duties, powers and functions as an employee of Australia Post or an employee or contractor of the RFDSA.  

This amendment will insert a new subsection 85W(3A) into the Crimes Act to enable other persons or bodies who facilitate the provision of vital medicines to remote Australian communities through Australia Post to be covered by an exception to the offence.

Proposed subsection 85W(3A) will provide that the offence in subsection 85W(1) does not apply to conduct engaged in for the purposes outlined in paragraph 85W(3A)(a) by persons acting in the course of the duties, powers and functions referred to in paragraph 85W(3A)(b).

To be covered by the exception, the conduct must have been engaged in by a person for the purposes of, and in accordance with, a program prescribed by the Regulations that provides for the supply of packages of pharmaceutical products and medical supplies to remote locations.

The relevant conduct must also have been engaged in by a person in performing or exercising his or her duties, powers or functions in his or her capacity as:

ยท          Australia Post, or an employee of Australia Post (defined in section 85E of the Act to mean a person providing services for or on behalf of Australia Post, or the employee of such a person)

  • a body, or the holder of an office or position in relation to the program, that is prescribed by the Regulations, or
  • an employee of, or person who performs services for on or behalf of, a government, body or other person that is prescribed in the Regulations.

The amendment would therefore enable Regulations to be made under the Crimes Act prescribing the programs to which, and the organisations, officers, employees or contractors to whom, the exception in proposed subsection 85W(3A) applies.

Note 1 to the provision is an aid to interpretation of proposed paragraph 85W(3A)(b) which indicates that, under subsection 33(3A) of the Acts Interpretation Act 1901 , the Regulations may prescribe a body, person or a class of bodies or persons, and may make different provisions with respect to different classes of bodies or persons.

Note 2 to the provision indicates that a defendant will bear an evidential burden in relation to subsection 85W(3A).  Section 13.3 of the Criminal Code provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).  An evidential burden defence has been used because a defendant would be better placed to point to evidence of the matters set out in the exception in proposed subsection 85W(3A).

In accordance with clause 2 of the Bill, the amendment will commence upon the Bill receiving Royal Assent.   

The application provision in sub-item 3(2) of the Bill will apply to this amendment.  The effect of this will be that proposed subsection 85W(3A) applies on or after the commencement of proposed subsection 85W(3A) (that is, the day the Act receives Royal Assent) to conduct engaged in before, on or after the commencement of the Act. 

The effect of the retrospective application of proposed subsection 85W(3A) will be to extend the protection for persons in the particular circumstances covered by the exception and the Regulations made under the Crimes Act regardless of when the conduct occurred.