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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
EXPLANATORY MEMORANDUM
(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 amends 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 of Australia (RFDSA) and
their officers, employees, agents and contractors. The exception would
allow those organisations to arrange for the carriage of medicine by
Australia Post for the purpose of enabling the RFDSA to administer its
Medical Chest Program.
Section 85W provides for an offence of intentionally causing to carry by
post an article that consists of, encloses or contains a prescribed
narcotic substance within the meaning of the Customs Act 1901. The
definition of 'prescribed narcotic substance' in the Customs Act was
repealed by the Customs and Excise Legislation Amendment Act 1990. Due to
an oversight, the effect of that repeal on the operation of section 85W was
not taken into account and the reference in section 85W was not updated.
The Bill amends section 85W to give effect, as closely as possible, to the
original policy intention behind the offence in section 85W, when it was
introduced, by referring to 'controlled drugs' and 'controlled plants',
within the meaning of Part 9.1 of the Criminal Code Act 1995.
Because 'carried by post' is defined in section 85E to mean 'carried by or
through Australia Post', the offence in section 85W applies uniquely to
persons (including employees of Australia Post) who arrange for the
delivery of certain pharmaceuticals through Australia Post.
The RFDSA administers the RFDSA Medical Chest Program, which provides a
range of pharmaceutical items, including pain relief drugs such as
pethidine and morphine, which enable emergency treatment to be given to
people in rural and remote areas. The RFDSA and its agents supply and
maintain approximately 2, 600 Medical Chests across Australia, including
those located in national parks, remote homesteads, pastoral stations,
Aboriginal and Torres Strait Islander communities, outback schools, mines
and mining exploration sites. The RFDSA regularly reviews the contents of
the Chests to ensure relevance and currency of pharmaceuticals.
Until recently, Medical Chests were distributed utilising Australia Post.
However, section 85W makes it an offence for Australia Post or the RFDSA to
arrange for the distribution of pharmaceuticals containing prescribed
narcotic substances. Delivery services in relation to certain
pharmaceuticals ceased following the discovery that this practice
contravenes section 85W of the Crimes Act in early 2010.
The Government understands that there are no viable alternatives to
Australia Post for supplying medicines for the RFDS Medicine Chest Program.
Australia Post is the only delivery provider servicing many remote
locations and consequently, a number of Medical Chests in remote areas are
depleted or carrying out of date stock.
An urgent amendment will address the risk of emergency medicines not being
available to treat serious illness or injury in rural and remote areas of
Australia.
PURPOSE
The purpose of the Bill is to allow Australia Post and the RFDSA to
lawfully provide for the supply of medicines through Australia Post under
its Medical Chest Program.
The Bill will also address a previous oversight, in failing to update the
reference to 'prescribed narcotic substance within the meaning of the
Customs Act 1901' in section 85W to address the repeal of that definition
in 1990.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
ACRONYMS
Crimes Act Crimes Act 1914 (Cth)
Criminal Code Criminal Code Act 1995 (Cth)
Customs Act Customs Act 1901 (Cth)
RFDSA Royal Flying Doctor Service of Australia
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited as
the Crimes Amendment (Royal Flying Doctor Service) Act 2010.
Clause 2: Commencement
This clause provides that the Act will commence on Royal Assent.
Clause 3: Schedule(s)
This is a formal clause that enables Schedule 1 to amend the Crimes Act by
including amendments under the title of the Act.
Schedule 1 - Amendments
Crimes Act 1914
Item 1 - amendment to subsection 85W(1)
This item omits the words 'prescribed narcotic substance within the meaning
of the Customs Act 1901' in subsection 85W(1) and replaces it with a
reference to 'a controlled drug, or a controlled plant, within the meaning
of Part 9.1 of the Criminal Code'. The effect of the amendment will be to
apply the offence in subsection 85W(1) to the controlled drugs and
controlled plants listed in that Part.
The term 'prescribed narcotic substance' was defined in the Customs Act at
the time section 85W was inserted as a sub-class of 'narcotic substances'.
The definition of 'prescribed narcotic substance' was repealed by the
Customs and Excise Legislation Amendment Act 1990 (the 1990 Act), which
commenced on 21 December 1990. Due to an oversight, the effect of that
repeal on the operation of section 85W was not taken into account and the
reference in section 85W was not updated.
The amendment will address this oversight by giving effect, as closely as
possible, to the original policy intention behind the offence in section
85W, when it was introduced in 1989 by the Telecommunications and Postal
Services (Transitional Provisions and Consequential Amendments) Act 1989.
Applying the offence to the list of 'controlled drugs' and 'controlled
plants' in the Criminal Code will ensure that the offence has similar
coverage to the domestic drug offences in the Code, to which those lists
apply, and to the original section 85W offence.
The section 85W offence will not apply to controlled precursors as these
substances were not covered by the original offence.
This amendment to subsection 85W(1) will have prospective effect only, that
is, it will only apply in relation to conduct engaged in on or after the
day the amendment commences (that is, when it receives Royal Assent). Due
to uncertainty surrounding the interpretation of section 85W(1) of the
Crimes Act in its current form, it is appropriate not to apply the
amendment retrospectively.
This item will also amend the heading of section 85W to replace the
reference to 'narcotic substances' with a reference to 'controlled drugs or
controlled plants', in accordance with the amendment to subsection 85W(1).
Item 2 - new subsections 85W(3) and (4)
This item inserts new subsections 85W(3) and (4) to provide an exception to
the offence of 'causing narcotic substances to be carried by post' for
Australia Post and the RFDSA, their employees and other persons who perform
services for or on their behalf.
Subsection 85W(3)
This subsection will provide 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), and discussed below), 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.
Section 85E of the Act defines an employee, in relation to Australia Post,
as a person who performs services for or on behalf of Australia Post, and
an employee of such a person. The effect of the application of the section
85W definition will be that agents, contractors, employees and other
officers of Australia Post (and their employees) involved in the Medical
Chest program will be covered by the exception.
An RFDSA employee or contractor is defined in proposed new subsection
85W(4), and is explained below. The effect of this definition will be that
agents, contractors, employees and other officers of the Royal Flying
Doctor Service of Australia (and their agents, contractors, employees and
other officers) involved in the Medical Chest program will be covered by
the exception.
A defendant will bear an evidential burden in relation to
subsection 85W(3). Section 13.3 of the Criminal Code Act 1995 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 that they engaged in conduct for the purposes
of the Medical Chest Program and in the course of their duties as an
employee or contractor of the relevant organisation.
Subsection 85W (4)
This subsection will provide definitions relevant to the exception in
proposed new subsection 85W(3).
The Medical Chest Program is defined as the program administered and
operated by or on behalf of the RFDSA for the supply of packages of
pharmaceutical products and medical supplies to remote locations across
Australia.
The RFDSA has been providing packages of pharmaceutical products and
medical supplies (referred to as 'Medical Chests') as part of its Medical
Chest Program since the 1930s. Medical Chests contain a range of non-
pharmaceutical and pharmaceutical items, which enable emergency treatment
to be given to people living and working in remote areas. The Chests are
an important on-site tool to enable RFDSA medical practitioners to treat
people via telemedicine for many conditions and to provide necessary
treatment, including pain relief, for those requiring emergency evacuation.
The precise definition of 'Medical Chest Program' in the Bill 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).
An RFDSA employee or contractor is defined to include a person who is one
of the following:
. an employee of the RFDSA
. a person other than an employee (defined to mean an RFDSA contractor)
who performs services for or on behalf of the RFDSA, or
. an employee or person who performs services for or on behalf of any of
the persons in the second category, above.
The definition of Royal Flying Doctor Service of Australia includes an
exhaustive list of the entities that comprise the RFDSA, and therefore fall
within the scope of the proposed exception.
The RFDSA operates in a federated structure and the bodies that comprise it
have their own Board and Management. These bodies are listed in paragraphs
(a) to (g) of the definition of Royal Flying Doctor Service of Australia.
Each body operates independently, both financially and operationally, and
is either currently engaged in arranging for the provision of Medical
Chests under the Medical Chest Program, or may do so in the future.
The definition will also apply to a body that assumes responsibility for
performing the same (or substantially the same) functions that had been
performed by a listed body that has stopped performing those functions,
under the Program. This will avoid the need to revisit the provision where
one of the bodies operating as part of the RFDSA changes the name under
which it operates (for example, as part of a restructure of the service or
a reallocation of functions).
Item 3 - Application
This item sets out the application of the amendment made by items 1 and 2
of Schedule 1. Sub-item (1) provides that the amendment to subsection
85W(1) applies in relation to conduct engaged in by a person on or after
the day item 1 commences (that is, the day the Act receives Royal Assent).
This is also discussed under item 1, above.
Sub-item (2) provides that new subsections 85W(3) and (4) apply, on or
after the commencement of item 2 (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 this sub-item will be to enable those who would otherwise be
covered by the offence to seek to rely on the exception in a prosecution
initiated after commencement, including in prosecutions relating to conduct
engaged in before commencement.
The effect of the retrospectivity in this Bill will be to extend the
protection for accused persons in the particular circumstances covered by
the exception to conduct engaged in before the issue was identified by
Australia Post and the RFDSA.