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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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CONTROLLED SUBSTANCES (THERAPEUTIC GOODS AND OTHER MATTERS) AMENDMENT BILL

Adjourned debate on second reading.

(Continued from 10 November 2010.)

Dr McFETRIDGE (Morphett) (16:54): I indicate that I am the lead speaker on this bill and I also indicate that as a registered veterinary surgeon I have some interest in this bill, but there is no conflict of interest, so I can speak openly and freely. Can I just tell the house and the minister that the opposition is opposing the way the bill is presented but not the content of the bill. We have—and I will talk about this again—legislation once again being presented to this place where we are adopting, in this case, 374 pages of commonwealth legislation, 395 clauses in that legislation, in three lines of this bill. Not only are we doing that, we are also adopting the commonwealth Acts Interpretation Act to control the way this parliament interprets that bill. To me, that is a real travesty of the sovereignty of this parliament. I made that point and I will not read all 374 pages of the commonwealth legislation into Hansard here, but I put the minister on notice that between this place and the other place we will do some negotiation on how we can include that legislation into this act in a similar way that we did in the national practitioners legislation earlier this year.

We would prefer to have the commonwealth legislation incorporated into the South Australian act, rather than just adopting it and referring to it, because the people of South Australia deserve to have their own laws. They deserve to have a parliament which is a sovereign parliament. We are seeing this more often—and we have seen it in the bill just debated, we will see it again in legal practitioners bills that have been flagged, and there are other bills—where we are adopting legislation and coming under the control of legislation and ministerial councils that come from completely outside of this parliament's sovereignty. To me, that is not a good way to go.

I am a state's righter, so I see that this state parliament and the people of South Australia have a genuine place in the nation of Australia, and I do not want in any way to devolve the power of this parliament to any other legislature or the executive, whether it is the executive of this parliament or a ministerial council. So that is the main issue we have with this legislation on this side of the house: the way this legislation is being presented.

There are some issues I want to clarify with some of the clauses in the legislation, but I will talk about those as we go through them. The legislation, though, as readers of Hansard and those who are listening will know, is the Controlled Substances (Therapeutic Goods and Other Matters) Amendment Bill 2010. It is an act to amend the Controlled Substances Act 1984. It is interesting to note that the Controlled Substances Act 1984 repealed the Drugs Act 1908, and that is something I will talk about in the various clauses of this bill when we come to the matter of vending machines.

As it is at the moment, vending machines are prohibited in South Australia but we are going to see some changes there. The bill that we are looking at today does several things. It enables registered health practitioners to practise to the full scope of their competence, because with national registration of health practitioners now there is a need to have a national law that is controlling therapeutic substances. That is why there is a good reason to involve a commonwealth style of legislation but not necessarily to devolve the power of this parliament to the commonwealth.

The second thing that this bill is doing is that it is authorising eligible midwives and those practitioners to prescribe Schedule 4 and Schedule 8 prescription drugs. As a veterinary surgeon I am able to prescribe Schedule 4 drugs for animals and also I am able to possess and prescribe Schedule 8 drugs for animal use. I have some concerns about the increased numbers of health practitioners who are able to prescribe Schedule 4 and Schedule 8 drugs. What we need to be very careful of is that the people who are getting the accreditation to prescribe S4 and S8 drugs do have both the pharmacological and other knowledge that is required to understand the correct therapeutic use of S4s and S8s, particularly S8s which we know are drugs of addiction. The classic examples are morphine, pethidine and methadone.

I know there are vets—actually I will not make that comment because it will invite people to break into vet clinics. We keep these drugs under lock and key, and in my veterinary practice we had a very heavy safe where we kept these drugs. I knew the combination of the safe. We got broken into one night, and they were desperate. They jemmied the metal screens off the windows and they then tried to jemmy the safe out of the floor. It did not work. That is how desperate some people are for some of the drugs that are out there, so it is very important that we control not only who possesses them but, in this case, who prescribes them.

I strongly support the use of allied health professionals, nurse practitioners, practice nurses, nurse specialists, clinical nurses, and all the other health professionals out there, to help reduce the pressures that are on our health system at the moment. This is not in any way having a go at midwives or nurse practitioners. I would be happy for nurses to continue their education right through to the stage where they became doctors, if they wanted to. I have no problem with that at all because we need more front-line health practitioners at all levels, whether they are enrolled nurses, right through to medical specialists.

The third thing that this bill does is apply the commonwealth territories goods act as a law of South Australia, and I said a bit about that previously. The fourth thing is that it ensures that there are adequate controls over the sale of those poisons, medicines and medical devices that will be permitted to be sold via automatic vending machines. That is an issue that I will talk about a bit more in a few moments.

The main issue is the inclusion of the commonwealth legislation. That commonwealth legislation has, as I said, 374 pages. It has a different range of definitions from what we are seeing in legislation from other jurisdictions. Just as with the national registration of health practitioners, where I went through state by state, territory by territory and showed the consistently inconsistent application of legislation and variations on the legislation, we are seeing issues with the national registration of health practitioners. There are issues with the issuing of registration, and, certainly, try to make a complaint and the run-around or the ring-around you will get is quite amazing.

What we need to do, if we are going to include legislation from other jurisdictions, is not just refer to it, because the definitions are different in this legislation from those we may be used to; they are certainly different from some in other jurisdictions. I understand that there are jurisdictions that are still working through the way this legislation is going to be adopted, or the way the commonwealth legislation is going to be incorporated into their own legislation. In the definitions of the Therapeutic Goods Act 1989, which we are putting into this legislation in three lines, the definition of 'medical device' has the meaning given by section 41BD, so you need to have ready access to this legislation to be able to look at the definition there and refer to section 41BD. It is important that the legislation is readily available and not have to go to some other jurisdiction to see what was actually said and what is incorporated in there.

There is another reference in another clause to the health practitioner regulations and legislation. Had we not included that in the previous South Australian act, had we not included the Queensland legislation as part of our legislation, where it was quite open for our constituents to look at that legislation, they would then have not only looked at our controlled substances bill referring to the commonwealth bill but then gone back to some Queensland legislation. So, it just goes on and on and on.

There are complications, there are issues, there are difficulties, and we saw the same sort of thing noted in England, where a comment was made that more of the sovereign powers of the national government were being devolved to the EU. We see it all around where national powers are being devolved to the United Nations, with the numbers of UN agreements that Australia and other countries are signing up to, trying to prescribe the way we should enact and interpret our laws. It is becoming a real issue.

The intent of this legislation, the Controlled Substances Amendment Bill 2010, is fine. We want practitioners to be able to practise all over Australia and have the same access to medications and therapies and treat Australians to the highest level that they possibly can. What we do not want is for anyone who wants to check up on how the legislation is working, or if there is a difficulty with the legislation, to then have to go through an absolute jigsaw of pieces of legislation, and, when that jigsaw is put together, the picture is fine but individually it can possibly be interpreted in several different ways. Anyone who has done jigsaw puzzles will have great sympathy with that, particularly doing the sky.

The interpretation or, shall we say, the administration of S8s and S4s is something which the nurses' union is very strongly supporting and which the AMA has some questions about. However, I think that that issue can be overcome with more consultation and more dialogue, because my reading is that the requirements to prescribe S8s is something that is going to be regulated. I think that the penalty for prescribing S8s in an illegal fashion has gone up significantly. It is a penalty of, I think, $25,000. That is a significant penalty—however, that is only if you get caught. The need to enforce controls on S8s cannot be overemphasised in this case.

Let us have a look at the prohibition on vending machines. When I first looked at this legislation I thought that the government had been acting illegally in having four vending machines around South Australia dispensing needle packs. I think that you can get four syringes for $2 from the four machines, one of which is just down the road here at the Royal Adelaide Hospital. There is one down south and there is one at Murray Bridge. I am not quite sure where the other one is, but I think it is out in the northern suburbs.

To me, that is a good thing. I have been a strong supporter of anything that can minimise harm and so reduce the impacts on individuals and society, and also, the more I look at health, the impact on the health dollar, because people who are using dirty needles and sharing needles are not only passing on diseases, such as hep C and HIV, but also they are exposing themselves and the people they associate with to other serious health issues.

From a public health point of view, there is a genuine reason for providing automatic vending machines. However, when the controlled substances bill 1984 and subsequent amendments were looked at, clause 20, I think it was, was not enacted. The rest of the bill was enacted but that particular clause was not. When the 1908 Drugs Act was repealed, section 26, if I remember correctly, was still in force.

I do not know how that works. It is a strange way of doing it, but I am told that, while an act may be repealed, one or two provisions in that act can stay in force, and that clauses in the bill that was meant to repeal that act may not be enacted. Back in 1908 I do not know whether there were automatic vending machines, but, certainly, in the changes between then and now there have been various ways of dispensing everything from cigarettes to soap powders, and that is an area of continued change we need to look at, and, in this particular case, bringing automatic vending machines within the regulations, and allowing them to be used for dispensing needles is a good thing.

There is another small thing in here about the regulation of vending machines, namely, some quite caustic chemicals are being used in car washes, so there is the need to have a small clause in this bill to allow the S5s, I think they are (some of the caustic cleaners they use in car washes), to be able to be dispensed from vending machines.

I do have some issue with dispensing non-prescribed drugs from vending machines. Vending machines that dispense things such as Panadol and aspirins should not be in areas where they are readily accessible to children, and I understand that that is the intent of this legislation. The need to make sure this legislation is presented in a way that is acceptable not only to this house and the opposition but also to the people of South Australia is something that I am very keen to emphasise. Between this place and the other place, we will be looking to see what needs to be put in to make sure that every South Australian can readily access this legislation.

I would be interested to hear what the minister has to say about why we cannot do that in a similar way to the national health registration and why we keep adopting legislation. I know that the Victorians tried to incorporate it into their legislation and the argument was put that it was too difficult to keep up with the amendments, but I find that to be a pretty superficial argument. If the legislation is good and worthwhile, and if this house sits a bit more frequently, then it would not be delayed inappropriately or cause serious issues.

I cannot overemphasise the need to make sure that the legislation that we are putting before this parliament is South Australian legislation and it is not just adopting legislation from another jurisdiction, because we will see more and more central legislation being forced upon us through ministerial councils and adopting commonwealth legislation. I warn both sides of the house about it. I know the Attorney-General has made comments about his attitude to this in the past. I just hope that he is listening and looks at this legislation again.

I know the minister will tell me that it is just going to be too difficult to do what we want to do, but I do not find that to be an adequate response, so I hope that we do get some sense between this place and the other place. There are no amendments that the opposition wants to move on this. I see the government has a couple of amendments and we will be going into committee for those. We will not hold the house long tonight on this. The need to make sure that we get good legislation, though, is paramount. As I say, I was tempted to read 374 pages of the legislation into parliament and compare every state and territory's approach to this. I did that last time with the national legislation on health practitioners. I made my point then. I hope I do not have to do that in the future, but—and this is not a threat; it is a promise—if I have to do that in the future to make sure the legislation from other jurisdictions is incorporated in an accessible way in Hansard then that is something that I might have to do.

I ask the minister to consider, between this place and the other place, how we can be more inclusive in the way we are presenting legislation. I congratulate all those that have looked at the Controlled Substances (Therapeutic Goods and Other Matters) Amendment Bill because, as we will see with other bills that are coming before the house even this week, with public health and health complaints, it is an ever-changing world we are living in and we do need to keep up with these changes.

Leaving legislation for eight to 10 years is far too long nowadays and I hope that it is not going to be a long time before we have to come back and make sure that this legislation is being as effective as it should be. I am not sure whether that needs to be put in this bill; I will be looking at ways of incorporating that into other bills that we see in this house. With that, I conclude my remarks.

Mrs VLAHOS (Taylor) (17:13): I rise to speak briefly on this important piece of legislation. I wish to speak particularly about the provisions relating to the sale of poisons, medicines and medical devices from automatic vending machines, from a different slant from the member opposite. As I understand the bill, it is seeking to proclaim and amend the provisions of the Controlled Substances Act so that appropriate conditions can be placed on the sale or supply of poisons, medicines and medical devices that will be able to be sold or supplied via automatic vending machines.

Currently, the sale or drugs and medicines by vending machines is regulated by section 26A of the Drugs Act 1908—a very old act indeed. When these provisions were drafted, items that we use regularly now (such as cosmetics, soaps and deodorants) were considered to be drugs and were restricted. Obviously, times have changed since this provision was drafted and the bill seeks to bring the legislation into the 21st century by loosening up some of the restrictions that currently apply to what can be sold via vending machines.

According to Wikipedia, the first recorded reference to vending machines was found in the work of Hero of Alexandria, a first-century engineer and mathematician. His machine accepted a coin that then dispensed a fixed amount of holy water, then considered for its medicinal purposes. When the coin was deposited, it fell upon a pan attached to a lever, and the lever opened up a valve, which let the water flow out. The pan continued to tilt with the weight of the coin until it fell off, at which point the counterweight would shut the lever off and turn the valve off.

Despite this early precedence, vending machines had to wait until the industrial age before they came to prominence. The first modern coin-operated vending machines were introduced into London, England, in the early 1880s, dispensing postcards. The first vending machines in the US were built around 1888, selling gum on train platforms.

This bill aims to repeal section 26A of the Drugs Act 1908 and what can be sold. This antiquated definition of drugs is not used in section 20 of the Controlled Substances Act, which means that cosmetic soaps and deodorants could be sold in vending machines if this is passed. Instead, section 20 of the Controlled Substances Act intends to prohibit the sale of poisons, medicines and medicinal devices via vending machines.

This bill will enable South Australians to implement the recommendations of the Galbally review of drugs, poisons and controlled substances from the legislation of Council of Australian Governments' agreements. The effect will be that packs issued from vending machines will be no more than two adult doses of unscheduled medicines, such as paracetamol, and they will be available to be sold via these vending machines providing they are presented and located in ways that make them unlikely to be accessed by unsupervised children. The products which are currently sold via automatic vending machines include lollies and Minties will continue to be sold. Some additional products, such as soap and cosmetics, will then be permitted to be sold by automatic vending machines, additionally. This will enable vending machine operators to supply these products in the same way as other states and territories in Australia. Vending machines dispensing soap and cosmetics might be installed in hostels, train stations and hotel environments.

The poisons, medicines and medicinal devices that would be permitted to be sold or supplied by automatic vending machines and the conditions on the supply are specified within the regulations. The poisons, medicines and medicinal devices would be packs containing no more than two doses of paracetamol. They would have to be packaged in the manufacturer's original unopened packs. This will ensure that they are appropriately labelled and packaged. Unscheduled medicines, such as 24 packs of paracetamol, can be sold by general retail outlets. The maximum pack size of paracetamol tablets that would be permitted to be sold or supplied via automatic vending machines will four tablets.

Having access to small packs of such medicine is likely to be beneficial for consumers when they do not have access to standard retail outlets at airport terminals in smaller country towns. Other states and territories, including the ACT, Victoria and New South Wales, permit the sale of these packs via these machines elsewhere.

With regard to injecting equipment, including needles and syringes, presently there is no legislation prohibiting the sale of injecting equipment via vending machines. However, it is an offence under the Controlled Substances Act to supply equipment for use in the administration of a controlled drug. Under this amendment, the sale of needles and syringes via automatic vending machines would be permitted; however, certain restrictions would apply to the site and location of the automatic vending machine, which would need to be approved by the minister.

This would ensure that the machines are appropriately sited, for example, within existing clean needle programs. Having a vending machine at these sites could address a gap in the clean needle program coverage after hours and on weekends. Enabling the sale of injecting equipment via automatic vending machines at sites would mean injecting drug users who were previously unwilling to engage with the program could access injecting equipment and potentially offer the staff the opportunity to interact with these drug users and engage them in harm minimisation programs. Making access to clean needles and syringes easier for public health has benefits also in reducing the spread of blood-borne diseases. Currently, pharmacists, medical practitioners or persons acting in the course of declared health risk minimisation programs are permitted to sell needles and syringes to injecting drug users. A trial of the sale of injecting equipment via automatic vending machines at four clean needle programs has shown promising results.

With regard to Schedule 5 poisons, some car wash facilities sell alkaline cleaning solutions that are under Schedule 5 poisons via machines, and they are likely to be deemed vending machines. The Schedule 5 poisons are freely available via general retail outlets, and these are substances with a low potential for causing harm. The car wash facilities would need to display first aid information, safety directions and warning statements that are on the packs of these products when they are sold at other retail outlets. This would also reduce the harm associated with the supply of these solutions in these areas.

Other products that are likely to be sold via the vending machines include feminine hygiene products, condoms and lubricants and other items that are currently available but whose supply is generally outside of the act. Enabling consumer access to these products in situations where other retail outlets are not open or accessible can provide potential public health benefits for the general population in preventing unwanted pregnancies and the spread of sexually-transmitted diseases.

The proposed changes would permit vending machines and their operators to sell some products that can currently be sold in other states and territories but not in South Australia. I can see the benefits for the community in enabling access to specified poisons, medicines and other devices via automatic vending machines under conditions to protect public health and safety of the general populace. I am pleased to support this legislation.

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for Mental Health and Substance Abuse, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (17:21): I thank the two members who have contributed to this debate; it is always good to have a little bit of contribution. The member for Morphett made a pretty good summary of the provisions in the legislation. I will just go through the key issues that he referred to, particularly in relation to the scope of practice for a range of health practitioners, nurses and midwives, and other allied health workers.

This legislation will allow those clinical professionals who have been authorised by their national registration boards and who have gone through appropriate training to use the drugs that are listed in Schedules 4 and 8 according to whatever the national bodies' provisions are. At the moment, unless we were to introduce these changes, the national registration process would allow a scope of practice, train people and give them capacity to use these drugs, but the law in South Australia would prevent them; our state law would prevent a national registration provision practice occurring. It is sensible, and the passing of this legislation will not automatically mean that anybody can do anything: they have to go through the appropriate hurdles first. I just want to assure the member of that. I think he understood that, but he was raising it appropriately as a point of consideration.

In relation to the issue around vending machines, he quite rightly mentioned that there are a number of vending machines in South Australia at the moment where one can purchase needles. They are placed in strategic locations close to hospitals, I think, in most cases. They have been in place for a trial. Currently under South Australian legislation, there is no restriction on the use of vending machines to distribute needles.

Needles, syringes and so on can be sold under licence and there are conditions that apply, but, as I understand it, once the person has the licence to sell the needles, they can do it in pretty well whatever way they like. This legislation will restrict that, and it will mean that the minister has to give authority and can prescribe how vending machines can be used and where they can be placed. There will be a tighter regime put in place, not a weaker one.

The interesting thing, of course, is that under the current legislation, it is illegal to dispense drugs in vending machines but, given that it is 1908 legislation, that extends to things like pharmaceuticals and not only pharmaceuticals but cosmetics, soap and other everyday items which it is currently illegal to sell in vending machines. I would have thought it would be pretty sensible in some places like airports and backpacker locations to be able to buy ordinary bathroom items to help people who are travelling. Interestingly, I was reading and wondering when vending machines were first invented, and I understand that vending machines have been around since the first century.

An honourable member interjecting:

The Hon. J.D. HILL: No, no. I think the Romans invented the first—I checked this out on Google, or Wikipedia, I think, so my source is perhaps a little bit dubious. Apparently, the Romans had a vending machine which dispensed holy water. You would put a coin in, the coin would land on a lever which would open the valve, the water would be dispensed, that would somehow or other knock the coin off, the valve would go back in and you had your tumbler of holy water—dispensed by a vending machine some 2,000 or so years ago. As I said when somebody mentioned it to me, it is sort of an example of deus ex machina, literally, god out of the machine. Anyway, that is just by the by.

So, we are updating the vending machine legislation so that you can actually sell soap and other things, but also basic analgesics in small packs so that people can get access to headache pills in circumstances where they might need them. I think they were the major issues that the member might have referred to, other than the broader issue about how the state brings into play national legislative schemes which I want to talk about in a minute. I think, member for Morphett, they were the major issues you raised. I am satisfied that the legislation is properly balanced. It has been through all of the appropriate hurdles and I think it makes a lot of sense.

The broader issue the member raised, and he raises it in relation to the national registration schemes, is a matter I would like to take some advice on, because this is now the second time that I have introduced legislation using a standard mechanism which was used by the member for Morphett's party when it was in government and has been used multiple times by this government to enact provisions under national legislation. I understand there are philosophical arguments about that, but there is also a practical necessity as we don't want to have gaps between what can happen in one state compared to another. So, this is a seamless way of doing it.

As the member said, there are hundreds of pages of legislation. If we had to go through that process every time, it could be a very slow process. I am not sure what we should do about this, but it seems to me, member for Morphett, that the opposition and the government should try and reach an understanding about how we deal with these matters. Whoever is in government, it is going to become more and more common. If you put roadblocks in the way of us doing it when we are in government, I can guarantee you that, when at some stage the tables are turned, similar roadblocks will be placed in your way and you will find it is as frustrating and annoying as ministers do now.

So, it might be something—and I will seek some advice from others—that we could perhaps refer to the Legislative Review Committee, to come up with an agreed formula which allows us to do it, so that we do not have to go through the in principle discussion every time this comes. It happens in health, it happens in—

Dr McFetridge: Consumer affairs.

The Hon. J.D. HILL: —consumer affairs and the energy legislation. It is a common way and it is a necessary thing, I think, given the complexities of life these days. We are not a little island unto ourselves; we are part of a much bigger framework of powers and responsibilities. I think we need to do it, so my undertaking, in goodwill, is to talk to my colleagues to see if there is interest in coming up with a more considered way of dealing with it, so we do not have to have the in principle debate every time. I have an amendment which I need to move, but before I get to that and we move out of the second reading, can I thank my colleagues in the Department of Health, Steve Morris and Liz Hender, who worked on the policy framework which has produced this legislation, and thank Christine Swift, the parliamentary counsel who drafted it for us. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 12 passed.

Clause 13.

The Hon. J.D. HILL: I move:

Page 12, line 16 [inserted subsection (1d)(c)]—

Inserted subsection (1d)(c)—after 'prescribed for' insert ', or supplied to,'

I understand there was an omission in the drafting process that left out the words 'supplied to'. The substance of this would mean that a doctor assigned to a person can properly prescribe medication to a person and that would be fine, but it would mean that a family member could not supply that medication to their child, wife, husband, father or mother, so this is to allow normal domestic arrangements to apply so that people can assist others to take their medication.

Dr McFETRIDGE: This is a sensible amendment.

Amendment carried; clause as amended passed.

Remaining clauses (14 to 31), schedule and title passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.

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