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CRIMES AMENDMENT (ROYAL FLYING DOCTOR SERVICE) BILL 2010

                               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:

    . 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.