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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-02-23 Daily Xml
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CONTROLLED SUBSTANCES (THERAPEUTIC GOODS AND OTHER MATTERS) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

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

That the Legislative Council's amendments be agreed to.

There were four amendments moved in the other place. The first was moved by the Hon. Stephen Wade, and he deleted a subsection (4). I will explain to this house why the government is accepting this amendment. I am not sure that I completely understand what the amendment does or why we accepted, or what difference, if any, it makes—probably none. It is a bit moot; a bit of a lawyer's thing.

The intent of the original clause was to make it clear that there would be the same approach to the application of commonwealth therapeutic goods laws for natural persons as for corporations. That is, to the extent of any inconsistency between the Controlled Substances Act 1984 and the provisions of the commonwealth Therapeutic Goods Act 1991, that are being applied in South Australia, the commonwealth Therapeutic Goods Act 1991 will prevail.

The inclusion of the subsection (4) was to clarify what is stated under section 109 of the Commonwealth Constitution: that commonwealth law will prevail over state law to the extent of any inconsistency. I am advised that it appears that putting that in causes more confusion than clarity. It does not make any real difference, so we are happy to have it removed. The reality is that the Therapeutic Goods Act does trump our state act, and that is just the nature of the Constitution. So we are happy with that.

Amendment No. 2 was also moved by the Hon. Stephen Wade. He moved to delete the phrase 'as a law of South Australia in relation'. This amendment removes the explicit reference to the commonwealth Acts Interpretation Act applying as law in South Australia in relation to interpretation of the applied provisions of the commonwealth therapeutic goods laws. The approach taken in the drafting of the bill is consistent with the standard approach adopted by the Parliamentary Counsels Committee.

For many years in all states and territories, when a commonwealth act has been applied, the package applied is the specific act or provisions, together with the commonwealth Acts Interpretation Act. The most recent example of the same formula being used as in this bill is the Australian Consumer Law (SA) passed by this house late last year.

The proposed approach of not referring to the commonwealth Acts Interpretation Act applying as a law of the state in relation to interpretation of the applied provisions does not effect a substantive change but may confuse users of the legislation. If parliament is trying to achieve the same end, for example, as in the current Australian Consumer Law, our legal advice is that the same language should be used.

So, this is really a nicety about drafting. The end result is the same. For reasons which are apparent only to members of the other place, they chose to put in a unique provision which would confuse readers of the bill. It does not change the powers in any way. Why they would want to do that, one would have to ask them. However, in order to expedite the progression of the bill, the government will support that amendment as well.

The third amendment was moved by my colleague, the Hon. Gail Gago, on behalf of the government; that was to delete the words 'supply or administer' in clause 13. The amendment was moved by the minister in another place and that amendment seeks to rectify an unintended consequence as a result of the drafting of the bill with respect to the administration or supply of prescribed prescription drugs.

Under provisions in the bill the prescribing, administration and supply of some specialist drugs—for example, some drugs used for the treatment of cancer—is restricted to a medical practitioner with prescribed qualifications. This is an unintended consequence. It is intended that only the prescribing of these drugs is limited to a medical practitioner who holds prescribed qualifications. This amendment would allow a nurse to administer, and a pharmacist to supply, these specialist drugs.

The other amendment, which is No. 4, was also moved by my colleague the Hon. Gail Gago in another place. This amendment would give the minister the power to fix fees for licences, authorities and permits issued under the Controlled Substances Act 1987. The Office of Parliamentary Counsel has suggested that the minister should have the power to fix fees for licences, authorities and permits issued under the act, given the minister presently has absolute discretion to grant or refuse a licence, permit or authority under the act. The specification of fees for licences in the regulations fetters the minister's absolute discretion. The amendment, if passed, will allow greater flexibility and enable variation of fees if appropriate. So, as I say, I am happy to accept the amendments from the other place.

Dr McFETRIDGE: I appreciate the government's support for these amendments, particularly amendments Nos 1 and 2 moved by my colleague in the other place, the Hon. Stephen Wade. His acute legal mind has looked at the various nuances of the wording. I am just a humble veterinarian so I am guided by him, and I am very pleased that the government supports these amendments, for the benefit of all South Australians.

Motion carried.

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