Bills

Controlled Substances (Youth Treatment Orders) Amendment Bill

Introduction and First Reading

The PRESIDENT: Minister, you have the call.

The Hon. S.G. WADE: I feel inclined—

The PRESIDENT: No, no, we are on another matter now. We are on health to move, leave to introduce a bill. We have moved on.

The Hon. S.G. WADE: Now the gutless prick's backed away. What a gutless prick.

The PRESIDENT: Minister, I heard that. It is not appropriate. Withdraw that comment.

The Hon. K.J. MAHER: Mr President, point of order.

The Hon. S.G. WADE: I withdraw.

The PRESIDENT: The Leader of the Opposition needs protection.

Members interjecting:

The PRESIDENT: Opposition benches, do not provoke the minister.

The Hon. K.J. Maher: He's done wrong. He knows it.

The PRESIDENT: The Leader of the Opposition, please, I do not need commentary.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (15:22): Obtained leave and introduced a bill for an act to amend the Controlled Substances Act 1984. Read a first time.

Second Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (15:23): I move:

That this bill be now read a second time.

The Controlled Substances (Youth Treatment Orders) Amendment Bill 2018 that I introduce into parliament today gives effect to the government's commitment to provide children and young people with drug dependency problems residency at a treatment facility for up to 12 months and to enable parents to legally force their children to attend drug treatment programs.

The bill amends the Controlled Substances Act 1984 to permit an application to be made to the Youth Court for a series of orders in relation to a child or young person under the age of 18 years with a drug dependency. The Youth Court is the jurisdiction in this state with specialist expertise in matters relating to persons under the age of 18 years.

Applicants may be family members or certain other interested persons. Applications will also be able to be made by a person prosecuting the respondent for an offence and by officers involved in youth corrections and child protection. This reflects the likelihood in some cases that a respondent may already be before the Youth Court in relation to an offence or child protection proceedings, or may be in detention in a youth training facility, at the time that an application for a youth treatment order is considered appropriate. Applications will also be able to be made by a medical practitioner providing treatment to the respondent in relation to their use of controlled drugs. The Youth Court itself may also make orders of its own motion if there are proceedings before the court involving the respondent.

The bill anticipates that the court would first make an assessment order requiring a respondent to attend at a nominated assessment service. To make an assessment, the court would need to be satisfied that there is a reasonable likelihood that the respondent is habitually using one or more controlled drugs and that the respondent may be a danger to himself or herself or to others and that the respondent is unlikely to voluntarily seek a relevant assessment. The assessment service will be required to report to the applicant and to the court following its assessment.

Following the making of an assessment order, the court may make a treatment order requiring the respondent to attend a nominated treatment service. For the court to make a treatment order the respondent must have been assessed, whether pursuant to an assessment order or otherwise, as being dependent on one or more controlled drugs, and the court must be satisfied that the respondent must be a danger to himself or herself or to others and that the respondent is unlikely to voluntarily seek relevant treatment. The treatment service will be required to report to the applicant and to the court following its treatment of the respondent.

To provide guidance to the court, assessment services and others involved in the implementation of these reforms, the bill provides that the question of dependency on controlled drugs is to be determined by reference to diagnostic criteria for a dependence syndrome published by the World Health Organization.

The chief executive of the Department for Child Protection, as the department administering the Children and Young People (Safety) Act 2017, must be given notice of proceedings relating to a respondent in his or her custody or under his or her guardianship and an opportunity to make submissions in the proceedings. A respondent may be assessed or given treatment, and reports provided, despite the absence or refusal of consent by the respondent.

If the respondent has failed to comply with an assessment or treatment order, the court may make a detention order authorising the detention of the respondent for the purpose of ensuring compliance with the relevant order. An order made by the court is not binding on the respondent unless it is served personally on him or her. The court will only be able to make an assessment, treatment or detention order in relation to a person under the age of 18 years. However, an order for assessment or treatment will continue to have effect after the respondent reaches the age of 18 years, subject to a contrary order by the court. An order made by the court can only operate for a maximum of 12 months.

Aside from the general regulation-making power in section 63 of the act, the bill inserts specific regulation-making powers for the purposes of youth treatment orders. Regulations will be able to be made to regulate any matter relating to assessments or treatment provided pursuant to an order to make provision in relation to the apprehension and detention of respondents subject to a detention order, and to provide for reporting by assessment services and treatment services to the minister or any other person.

Section 63 itself is amended to allow for the regulations to prescribe penalties that might include up to two years' imprisonment for breach of or noncompliance with any regulation. For example, regulations might be made prescribing standards for assessment and treatment services and impose significant penalties for serious misconduct by an assessment or treatment service.

The bill also makes other provisions of an administrative or consequential nature, including for the court proceeding in the absence of the respondent, for costs and for the variation or revocation of orders. To determine the impact and effectiveness of the new legislation on young people, their families and the health and justice systems, there will be a statutory review of the operation of the new legislation three years after its commencement.

The legislation will commence on a day to be fixed by proclamation but the usual two-year rule for commencement of legislation in section 7(5) of the Acts Interpretation Act 2015 will not apply and has been expressly excluded in this bill as this will allow time to identify the necessary facilities and programs. The effective implementation of this legislative reform will require close consultation with and collaboration between health, child protection and justice agencies in the private and public sector. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Controlled Substances Act 1984

4—Amendment of section 4—Interpretation

This clause inserts a definition of treatment service for the purposes of new Part 7A and makes a consequential amendment.

5—Repeal of section 35

This clause deletes section 35 as a new provision on accreditation of drug assessment and treatment services is being inserted in Part 8.

6—Amendment of section 38—Undertakings

This clause is consequential to the new definition of treatment service.

7—Insertion of Part 7A

This clause inserts a new Part 7A as follows:

Part 7A—Youth treatment orders

54—Interpretation

This clause inserts definitions for proposed new Part 7A.

54A—Orders that may be made under this Part

This clause empowers the Youth Court of South Australia to make an order requiring a person under 18 years of age (the respondent) to attend a nominated assessment service (an assessment order) or treatment service (a treatment order). The Court may also make detention orders to ensure compliance with an assessment or treatment order. Such orders may not operate for longer than 12 months.

54B—Application for order

This clause allows the Court to make an order of its own motion or on application by a person of a listed class.

54C—Making of orders

This clause outlines the factors that the Court must be satisfied of before making an assessment or treatment order. This clause also provides that the Court may make a detention order if the respondent is non-compliant with an assessment or treatment order. This clause empowers the Court to request information from the Department and requires the Court, before making an order in relation to a respondent who is in the custody, or under the guardianship, of the Chief Executive of the administrative unit of the Public Service responsible for assisting a Minister in the administration of the Children and Young People (Safety) Act 2017, to ensure that Chief Executive has been given notice of the proceedings and has been given an opportunity to make submissions in the proceedings.

54D—Proceedings in the absence of respondent

This clause empowers the court to make an order under the Part in the absence of the respondent, irrespective of whether the respondent was summoned (but in the case of the respondent not being summoned, the Court must summon the respondent to appear to show cause why the order should not be confirmed). The date for the hearing to which the respondent is summoned must be within 7 days of the date of the order. Evidence may be given by affidavit, but the deponent must make themselves available to give oral evidence if the respondent so requires. The Court may adjourn the hearing, for a period of usually not longer than 7 days. Another judicial officer may constitute the Court at the adjourned hearing. At the hearing, the Court may confirm or amend the order.

54E—Variation or revocation of order

This clause empowers the Court to vary or revoke an order of its own motion or on application by the persons set out at clause 54B. An application may also be made by the respondent with the permission of the Court, which may only be granted in the event of a substantial change in circumstances. The Court must allow all parties to be heard.

54F—Service

This clause provides that an order must be personally served on the respondent, and is not binding until so served. The same holds true for any confirmation of an order in amended form or any variation of an order. An assessment or treatment order must be given to the assessment or treatment service nominated in the order.

54G—Effect of order

This clause provides that, in accordance with the Part, a respondent may, in the absence or refusal of their consent, be assessed or be given treatment, and reports may be provided. A respondent to whom a treatment order applies may be given treatment for dependency on controlled drugs, or any other condition or illness of a kind authorised by an examining medical practitioner. Subclause (3) provides that treatment under this clause is limited by the regulations.

54H—Treatment may continue after respondent's 18th birthday

This clause provides for the continuance of assessment or treatment after the respondent reaches 18 years of age, if the Court did not specify that an order was to expire on the respondent reaching 18 years of age.

54I—Costs of assessment or treatment

This clause gives the Court a discretion to make orders in relation to the costs of any assessment, treatment, or report. However the Court cannot make an order requiring payment of such costs by the respondent or an agency or instrumentality of the Crown. A person subject to an order for payment of costs may apply for variation or revocation of the order.

54J—Regulations

This clause provides that the regulations may regulate any matter relating to assessment, treatment, detention, and reporting. This clause does not derogate from the general regulation making power in section 63.

54K—Review of Part

This clause provides for a review and report to be completed after the third, but before the fourth, anniversary of the commencement of the clause. A copy of the report must be laid before both Houses of Parliament within 6 sitting days.

8—Insertion of section 56A

This clause inserts a section (as a replacement for the current section 35 which relates to simple possession offences) allowing for accreditation by the Minister of drug assessment services or drug treatment services.

9—Amendment of section 63—Regulations

This clause makes consequential changes to the regulation making power.

Schedule 1—Transitional provision

The Schedule preserves accreditations in force under section 35 of the Controlled Substances Act 1984 immediately before the commencement of clause 8.

Debate adjourned on motion of Hon. I.K. Hunter.