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

Second Reading

Adjourned debate on second reading.

(Continued from 8 February 2011.)

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises) (15:51): There being no further second reading contributions, I will take this opportunity to sum up. This bill takes account of the national registration of health practitioners. It will enable registered health practitioners to practice to the full extent that they are qualified. It will authorise nurse practitioners and midwives who have had the appropriate endorsements to prescribe both schedule 4 and schedule 8 prescription drugs.

Nurse practitioners and midwives will be able to access prescribing arrangements under the Pharmaceutical Benefits Scheme (PBS) in collaborative arrangements with medical practitioners. Enabling eligible midwives and nurse practitioners to access prescribing arrangements under the PBS will give patients better access to health care, particularly in regional areas.

The commonwealth therapeutic goods laws will provide a framework for regulating safety, quality and efficiency of medicines and medical devices in Australia. An effect of the bill will be to apply the commonwealth therapeutic goods laws. As a law of South Australia, this will help ensure that there are no gaps in the regulation of medicines and medical devices in South Australia.

The bill also ensures that there are adequate controls over the sale of those poisons, medicines and medical devices that will be permitted to be sold via an automatic vending machine. Some items, such as cosmetics, deodorants and soaps that are not currently permitted to be sold via automatic vending machines will be permitted to be sold via these machines.

I note that the opposition has indicated that it generally supports the bill, but has moved an amendment, and I am thankful for their support. However, the government intends to oppose the proposed amendment, and I will certainly provide more details about why the government will be opposing that during the committee stage.

I am pleased that the Greens have expressed support for the bill without amendment. Again, thank you to the Greens. They have noted that the extension of prescribing rights to midwives will provide more choice to women in maternity care. Midwives and nurse practitioners will be able to play a greater role in the health system which is, indeed, a very positive thing.

Members will notice that I have two amendments on file. These are essentially of a technical nature, and I will provide more detail about these amendments during the committee stage. Again, I thank all members for their contribution during the second reading stage and look forward to the committee stage.

Bill read a second time.

Committee Stage

In Committee.

Clause 1.

The Hon. R.L. BROKENSHIRE: I welcome the way in which the bill recognises and supports the increased contribution and responsibility of nurses, nurse practitioners and midwives. The concern I have is that nurses, nurse practitioners and midwives already have a lot of responsibility and I wonder whether the government is pushing more responsibility upon them as a cost-saving measure in order to avoid doctors doing this work. Of course, it is not a cost-saving measure if nurses', nurse practitioners' and midwives' pay increases are to the appropriate level, and I trust that there will be some recognition there. The minister may like to highlight an answer to that.

I am also concerned that this measure is an acknowledgement of failure to recruit and support sufficient doctors, particularly in regional South Australia. I accept that the government needs to give these powers to nurses and nurse practitioners out of necessity, but is that a present necessity caused by the failure to sufficiently train and attract doctors to regional South Australia?

Having said that, I acknowledge that nurses, nurse practitioners and midwives have indicated that they want this bill to pass. I respect that and we will be supporting the bill, but I do have some questions for the minister. The first question is about enforcement. What level of breaches of the law have occurred under the existing prescribing rights? Or, put another way, how many prosecutions under this act have occurred in the context of existing drug prescribing rights and drug access for existing licensed practitioners, and how many of those prosecutions have been successful? What inspectorate exists or what level of regulatory oversight occurs?

The Hon. G.E. GAGO: We do not have that level of detail with us today. However, I am happy to take those questions on notice and bring back a response.

The Hon. R.L. BROKENSHIRE: I accept that the minister will get back to us on those questions. Another question relevant to clause 1: is the minister confident that the regime has enough checks and balances to ensure that there is no abuse of the rights and access to Schedule 4 and Schedule 8 drugs under the act?

The Hon. G.E. GAGO: I have been advised that there are indeed a number of checks and balances in place to ensure that standards are upheld and protections are put in place; these include national board endorsements of the competencies to prescribe to ensure certain standards. There is also a policy in place for nurse practitioners, which includes an approved list of drugs and, of course, a number of clinical professionals have input into that, including medical practitioners, to ensure that it is an appropriate list.

There is also the normal authorisations required for prescribing rights, where they are required to seek authorisation from the drug dependency unit and, of course, the drug dependency unit also provides an overall monitoring of prescribing to make sure that those practices remain within reasonable boundaries.

The Hon. R.L. BROKENSHIRE: Also on clause 1, as I understand it the government's new protocols are to have these answers with these bills. First, what is the budget impact of this bill? Has the impact been budgeted for already, or will the minister need to go to the new Treasurer to secure funding for that impact in the forthcoming budget? The other question (which is now standard government practice that I will be adopting) is: how many additional staff will be required by the passage of this bill?

The Hon. G.E. GAGO: I have been advised that budgetary and staffing impacts are expected to be minimal. In fact, in the 2010-11 budget new money was set aside for increasing the number of nurse practitioners, so those funds have already been designated. In fact, the outcome of this bill will ensure that we make better use of the health care professionals who are already currently in the system, enabling them to work more efficiently and effectively within their current scope of practice. Logic would say that, if you think about the costs of seeking prescribing rights, using a medical practitioner service is more expensive than using a nurse practitioner, so in fact there are some significant efficiencies there.

The Hon. R.L. BROKENSHIRE: Is that code for saying that nurses will be expected to have more responsibility and do more work for less?

The Hon. G.E. GAGO: What it means is that they will be better able to practise within the scope of their competencies. That is an improvement to efficiency.

The Hon. S.G. WADE: In relation to the minister's remarks: will nurses need to have further training to enable them to take the role of a nurse practitioner, as opposed to a registered nurse?

The Hon. G.E. GAGO: This affects those nurse practitioners who are already qualified as nurse practitioners, so this is not about expanding the role of registered nurses. There are career pathways for nurses, and one of those is that of a nurse practitioner that requires certain qualifications to fulfil or meet those competencies. What we are talking about here are those nurses who are already qualified to be nurse practitioners. Nurse practitioners already have prescribing rights, so that is not new. What we are saying is that this will expand the scope of their prescribing rights.

The Hon. R.L. BROKENSHIRE: Given that the drug RU486 is a Schedule 4 drug, which I understand nurses can currently prescribe if accredited, can the minister advise how many prescriptions of RU486 have been prescribed in each of the last three years, and are there circumstances contemplated where a midwife would need to prescribe RU486?

The Hon. G.E. GAGO: The question is not relevant to this bill. I am advised that nurse practitioners can already prescribe Schedule 4 drugs. This bill goes to increasing their scope to include Schedule 8 drugs, so this question is completely irrelevant to this piece of legislation.

The Hon. R.L. BROKENSHIRE: The Nursing and Midwifery Board has not yet published a list of scheduled medicines applicable to registration standard. Can the minister tell us whether that list has been published and, in any case, what are the medicines proposed or likely to feature on that list?

The Hon. G.E. GAGO: I am not too sure to what particular list of drugs the member is referring, so he could provide more information. Is he talking about all other schedules, or is he talking about those drugs contained in Schedule 8?

The Hon. R.L. BROKENSHIRE: Drugs in Schedule 8 in particular.

The Hon. G.E. GAGO: I have been advised that those particular drugs listed in schedule 8 are nationally agreed upon by a standard expert committee and they would be available publicly. I am sure they are on the internet. If the member went to the Therapeutic Goods Administration site, I am sure he could find them listed there.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

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

Page 5, line 17 [clause 6, inserted section 11B(1)(a)]—Delete 'as a law of South Australia in relation'

The Controlled Substances Bill, the bill before us, was introduced to the house on 10 November and in this place on 23 November. The changes in the bill, as the minister has explained, make amendments to provide the necessary flexibility for endorsed health practitioners to manage scheduled medicines with the same powers and functions under the South Australian legislation as they have under the commonwealth therapeutic goods laws.

The bill in that sense is yet another example of a national law. In recent times this council has taken a more critical approach to the application of national laws as laws of South Australia. This council and, if I can speak more directly, the Liberal opposition, does not pretend that the complex interactions of commonwealth and state laws lend themselves to a formulaic approach. In appropriate circumstances, we will support a law of another jurisdiction being applied in South Australia.

For example, we supported the Australian Consumer Law in the form of a commonwealth act being applied in South Australia as the South Australian law because we saw the law was primarily one of commonwealth constitutional responsibility, where the use of the state law is primarily to ensure the commonwealth law applies consistently to all relevant parties. It is our understanding that that is also the case with this bill. Without a state bill to support the commonwealth act, law would not apply to unincorporated associations, including natural persons. We see the wisdom of having a state act to support the commonwealth act.

That said, there is one clause that continues to concern the opposition. Having accepted the use of applied law to apply the national law, our issue is not a fundamental problem, but we believe it is a clause worth fixing. Clause 6, which we are currently considering, inserts a new section 11B. That clause says that the commonwealth Acts Interpretation Act shall apply as a law of South Australia in interpreting the commonwealth act.

The opposition is happy for the commonwealth Acts Interpretation Act to be used for interpretive purposes; however, we just see no need to overstate the situation by declaring the law to be a law of South Australia. It is not: it is a law of the commonwealth, and its only relevance here is to interpret an applied law. The opposition proposes simply to delete eight words to make the bill more accurate and, frankly, less offensive.

The Hon. R.L. BROKENSHIRE: Relevant to the amendment, I would like ask the minister some questions in that area with respect to clause 6. Why is it that, yet again, we are allowing commonwealth laws to apply as state laws when we have no power to disallow those laws? Why are we continually giving away our parliamentary sovereignty? Here we will apply the Therapeutic Goods Act as amended by the commonwealth in future whereby Canberra bureaucrats will decide what is good for South Australia. To me, this is a referral of powers by stealth, again. In the second reading explanation, the minister said that Victoria allegedly tried to mirror laws and it proved unworkable.

I ask the minister with responsibility for the bill in our house why that was the situation. We recently saw the opposition successful in getting laws tabled here in our parliament as state law rather than legislation by reference to commonwealth law that may change. I ask this question again, and I will continue to ask it because I am quite concerned about what is happening here. I hope that maybe the new COAG might start to address some of this, too, but, at this point, we are responsible for protecting our state's rights—that is what we are democratically elected to do, not rubberstamp. I ask again, and I will keep asking every time we are asked by this government to do this: why does this government find this an acceptable practice with respect to the proposal?

The Hon. G.E. GAGO: With all due respect, the question that the Hon. Robert Brokenshire has asked is not relevant to the amendment before us. The amendment before us is quite specific about the common use of words. The honourable member's question is not relevant to that, it is much broader.

The CHAIR: The amendment is to clause 6. I think that the Hon. Mr Brokenshire's question was on clause 6 rather than the amendment.

The Hon. G.E. GAGO: I see. I am sorry; I thought we were dealing only with the amendment. In respect of the issues raised by the Hon. Robert Brokenshire, the commonwealth therapeutic goods laws provide a framework to ensure that medicines and medical devices are safe, effective and of appropriate quality. The Therapeutic Goods Administration administers the commonwealth therapeutic goods laws.

Manufacturers of medicines and medical devices must be licensed, and therapeutic goods must be produced in accordance with good manufacturing practices. Products must be included on the Australian Register of Therapeutic Goods. The commonwealth therapeutic goods laws already apply in South Australia to import and export interstate trade and trade by corporations. There is a gap in the regulation as the commonwealth therapeutic goods laws do not apply to persons in unincorporated businesses that trade only within South Australia. So, that gap exists.

As a result of this gap, there is a risk that a person could manufacture a medicine or a medical device for sale within South Australia without having to meet the national controls on safety, efficacy and quality. There is also a potential risk to public safety. The most effective mechanism to cover this gap in regulation is to apply the commonwealth therapeutic goods law as a law of South Australia, as any changes to the commonwealth law would automatically then apply here in South Australia, and that provides greater consistency and less potential for confusion.

Other mechanisms, such as incorporating the commonwealth Therapeutic Goods Act into the Controlled Substances Act, or taking the approach that was taken with the Health Practitioner Regulation National Law (where Queensland legislation is attached as a schedule to the South Australian act) which can be updated via regulations and which is what we did here when we looked at that particular piece of legislation. That actually is not practical or workable in this case.

With these mechanisms, there is a potential for inconsistency between South Australian legislation and the commonwealth therapeutic goods laws, and this could have public safety implications. If the commonwealth legislation is amended to address an issue that has been identified in relation to safety, efficacy or quality of medicines or medical devices, commonwealth officers would be unable to enforce the new provision until the South Australian legislation was amended, which is just simply not in the interests of South Australians.

So, there is a provision in the bill for the applied provisions—the commonwealth therapeutics goods law—to be modified. There is also a provision for persons or medicines or medical devices to be exempted from the applied provisions, so there is flexibility around that. This will enable any specific local issues to be taken into account, if there was a change to the commonwealth legislation that presented a significant problem for manufacturers in South Australia.

So, we have got the best of both worlds. We have got the best of a nationally consistent approach that would improve safety for consumers here in South Australia, as well as having mechanisms to modify aspects to meet our local needs, if and when that is needed.

Given that the amendment has been put, there are issues in terms of the government's response that are relevant to the general discussion around clause 6. The government opposes the amendment put by the Hon. Stephen Wade. The words amending division 1, part 11B(1)(a) of the act have been agreed by a parliamentary counsel's committee, which is a committee of parliamentary counsels of each state, territory and New Zealand.

These common words have actually been in use since at least 1994, so there is nothing new there—there is nothing to be frightened of. This proposed amendment is about a question of drafting, not substance.

The Hon. S.G. Wade: It has no effect, so let it happen.

The Hon. G.E. GAGO: Well, if you just let me finish; if you are not prepared to listen. There is nothing to be afraid of here. You can listen to this and you might actually pick up something.

The Hon. S.G. Wade: I am just clarifying my understanding of what you are saying.

The Hon. G.E. GAGO: Well, why don't you just sit and listen? It is easy. A fundamental principle of drafting is consistency. The same words should be used to mean the same thing across legislation. Given that this legislation applies across the nation, it is important, and in everyone's interest, that the same words should be used to mean the same thing—this avoids the potential for confusion and misunderstanding.

The wording in this bill does not erode or undermine state sovereignty. So, it does not go to that issue; it does not affect what we can and cannot have input into at a later date or what powers we have over these provisions. As I said, it is a question of drafting, not substance.

The last time this house enacted legislation that applied a commonwealth act, together with the commonwealth Acts Interpretation Act, using these same words, was last November when it enacted the Australian Consumer Law. Again, this is not something new. We have done it before and it is simply about providing consistency to the use of common wording.

It would be mischievous, and potentially confusing, to start using different wording to achieve the same end. Readers and courts, for instance, would be right to think that some different purpose must have been intended, because different words are being used, when, in fact, there is no intention to mean anything different. So, there is the potential to use different words to say or mean the same thing.

If the words are not consistent, it would be quite easy for courts and others to think, 'Well different wording is in place, it must be meaning something different.' It does not mean anything different. So, it is for those reasons that the government does not support the proposed amendment.

The Hon. S.G. WADE: In response to the minister's comments, I would just underscore the minister's explanation that these words would have no substantially different effect. Her accusation is that to use different words would somehow be taken by the courts as meaning something different. In other words, the minister is suggesting that the courts would not use the plain meaning because of a difference between acts.

I do not know why the courts would ever need, in interpreting the Therapeutic Goods Act as applied in South Australia, to be looking at the words used in another place. In terms of the source of the authority, the minister tells us that a national committee of parliamentary counsel has told us that that is the way that they would like each of them around the nation to use it. That is like saying that there is a group of therapeutic goods administrators who think that this is the way our laws should be and therefore we should just lay down as a parliament and take the advice of the bureaucrats.

As the Hon. Robert Brokenshire has said, and as I said in my comments, this council and this parliament have taken a fresh course. Since the last election, we are taking much more seriously our responsibilities in relation to national law. Who cares if this was the practice in the past? If this council, after due consideration, believes that we need to change each of these examples of national laws, then that is great; here goes another one. I would encourage parliamentary counsel and the bureaucrats to be mindful of the attitude of this council.

This council is saying that national law is a direct challenge to the authority of this council. It might be a relatively trivial matter for the bureaucrats and for the minister, but it is one small statement from this council that we are going to take our responsibility seriously. I accept that it is not a substantial change. The minister says that it will have no effect, so let it pass.

The Hon. G.E. GAGO: The honourable member is quite right in the respect that this has no substantial effect in terms of the substance of this legislation. It does not, but the unintended effect or the concern that we have is that using different wording unnecessarily could create confusion at a later date. There is nothing to be gained by South Australia having different wording. There is no benefit to us. It does not give us any increased powers to make changes at a later date or have any greater input.

Leaving the South Australian wording as different does not have any effect whatsoever in terms of our sovereignty. As I said, it does not empower us in any way to make any further changes or give us any further rights or expansion of our entitlements. It does not go to the issue of sovereignty. It has no substantial effect. What it can do, however, is create confusion, because we mean the same thing as what is being proposed in the common word usage, and yet we have words that say it in a different way. We are saying that there is a greater potential for that to lead to confusion and misunderstanding at a later date.

I very much respect parliamentary counsel's opinion and advice, and it is only that. It is only advice and opinion that parliamentary counsel and this committee have provided, but I respect that, and I think that it would be very foolish of this chamber to dismiss their considerations and deliberations because the honourable member dismissively refers to them as bureaucrats. They are technical experts whose opinions are very important. This committee is a team of experts who have incredibly valuable and important advice that governments and members of parliament should consider in their deliberations.

They should not be just dismissed as bureaucrats. These people are highly educated and trained to help us ensure that we make good laws that are unambiguous, and I respect that and value their advice. The fact that this committee has come together across jurisdictions says that there is a common view by these experts. It is a committee across jurisdictions, and all of them have landed on the same point, and that is that we are better off using some common words across the nation. As I said, I think it is important that members consider that in their deliberations.

The Hon. R.L. BROKENSHIRE: I will ask at this point—because we are giving our lawmaking powers away—does, or will, proposed commonwealth law prescribe, firstly, that a nurse, nurse practitioner or midwife will have an obligation to prescribe a drug to a patient upon request? Secondly, if they do not, according to their conscience as an individual, want to prescribe the drug to that person, can they refuse to do so? Thirdly, are they obligated to refer that person to another practitioner who will prescribe the drug? These are the questions I get from some nurses and nurse practitioners who want to reserve their right not to have to prescribe or administer certain drugs.

The Hon. G.E. GAGO: I am advised that nurse practitioners will have professional autonomy within the scope of the practice, which is approved by the national board. What is occurring now is that current legislation is a barrier to that. In terms of prescribing drugs according to their conscience, as I said, nurse practitioners have autonomy of practice within their scope.

In relation to their obligations to refer people to other specialists, there are guidelines and protocols around referral that apply to nurse practitioners, and, being a member of a health care team, they are bound to adhere to those particular protocols.

The Hon. S.G. WADE: The minister said that the application of these laws could be modified in South Australia to take account of South Australian circumstances. Could she explain how that might happen?

The Hon. G.E. GAGO: I have been advised that there is provision in the bill for applied provisions to be modified. For instance, the act enables us to make amendments through regulations if a matter is deemed to be so serious or significant that it might need change, so we can make those modifications through regulation. As I have already put on the record, there is also provision for persons or medicines or medical devices to be exempted from applied provisions and that it enables specific local issues to be taken into account if there is a significant problem presented by manufacturers.

The Hon. S.G. WADE: In relation to the first class of modification the minister referred to, is the minister referring to new section 11A(3)(d)?

The Hon. G.E. GAGO: I have been advised yes.

The Hon. S.G. WADE: Is there any limitation on the scope of the content that could be included in such a modification by regulation?

The Hon. G.E. GAGO: I have been advised no.

The Hon. S.G. WADE: To which section was the minister referring when she referred to the second class of modifications in terms of the exemption of manufacturing processes?

The Hon. G.E. GAGO: I have been advised new section 31(6).

The Hon. S.G. WADE: Would any modifications to the applied provisions achieved through regulation under new section 11A(3)(d) be regarded as part of the act?

The Hon. G.E. GAGO: I have been advised that the answer is yes, as applied in South Australia.

The Hon. S.G. WADE: That being the case, what would be the effect of new section 11A(4)? It provides:

(4) To the extent of any inconsistency between the applied provisions and this Act, the applied provisions prevail.

On the basis of the minister's reply, the regulations would be deemed to be part of the act. To the extent that they are inconsistent with the national law, they are deemed not to prevail and, therefore, these South Australian variations would have no effect.

The Hon. G.E. GAGO: I have been advised that the inconsistencies the honourable member refers to are between the applied provisions as modified for South Australia and the rest of the South Australian Controlled Substances Act. I have been advised that if there is an inconsistency in the commonwealth trades goods law, as modified for South Australia, and a rule in our Controlled Substances Act, then the commonwealth trades goods laws must prevail to ensure consistency, as they must for constitutional reasons.

The Hon. S.G. WADE: For the sake of expediting the debate I presume the minister's reference to the trades goods law was reference to the therapeutic goods laws. That does not seem to me to be a plain reading of clause 5(1) which has a definition of 'applied provisions', as follows:

applied provisionsmeans the Commonwealth therapeutic goods laws that apply as a law of South Australia by virtue of section11A;

That does not allow for modifications. Would the government, for the sake of clarity, insert the words after section 11A in clause 5(1) 'as modified by the regulations and amendments to this act'?

The Hon. G.E. GAGO: I am advised that the clarification the honourable member seeks is already provided in the current bill, and I refer the member to clause 5(1), Interpretation, which states:

applied provisionsmeans the Commonwealth therapeutic goods laws that apply as a law of South Australia by virtue of section11A;

I then refer the member to new section 11A—Application of Commonwealth therapeutic goods laws:

(1) The Commonwealth therapeutic goods laws, as in force for the time being and as modified by or under this Part, apply as a law of South Australia.

The Hon. S.G. WADE: I thank the minister for the answer. That does allay my concerns. Could the minister also clarify that this parliament would be able to insert a new paragraph, let's say in new section 11A(3) to either replace paragraph (d) or insert new paragraph (e), whatever you would like to call it?

The Hon. G.E. GAGO: I can advise yes, effectively.

The CHAIR: We have been on this clause for a long time.

The Hon. R.L. BROKENSHIRE: I appreciate that, but it is our job to scrutinise. I was after an explanation from the minister because the minister said that, if the circumstance arose, they could look at a regulation and bring in that regulation. Would that regulation have to be checked with or passed by commonwealth authorities, or would that regulation simply be a regulation that would come through our house and we would have the jurisdiction and control of that regulation?

The Hon. G.E. GAGO: I have been advised that, no, it would not need to be vetoed or to go through commonwealth scrutiny.

The Hon. S.G. WADE: Just to clarify the response and the Hon. Mr Brokenshire's point about its being fully disallowable by this house in the normal way of sub-delegated legislation?

The Hon. G.E. GAGO: I have been advised yes.

The committee divided on the amendment:

AYES (13)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G. (teller)
NOES (6)
Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Hunter, I.K. Wortley, R.P. Zollo, C.
PAIRS (2)
Darley, J.A. Holloway, P.

Majority of 7 for the ayes.

Amendment thus carried; clause as amended passed.

Clauses 7 to 12 passed.

Clause 13.

The Hon. G.E. GAGO: I move:

Page 13, line 15 [Clause 13(1), inserted subsection (2)]—Delete ', supply or administer'

Under the provisions of the bill, the prescribing, administration and supply of some specialist drugs—for example, some drugs used for the treatment of cancer—are restricted to a medical practitioner, usually a consultant medical practitioner. This is an unintended consequence of the bill.

It is intended that only the prescribing of these drugs is limited to a medical practitioner who holds this special prescribed qualification or who meets the requirements specified in regulation. This amendment would allow a nurse to administer these medications—not to prescribe them but administer them. The unintended consequence was that we captured the ability of nurses to administer when that is unnecessary. Once these specialist practitioners prescribe these special medications, the nurses should be able to administer them. We are just fixing an unintended consequence.

The Hon. S.G. WADE: What was the source of the words which the minister now proposes to change? Was this bill agreed by a group of national bureaucrats, or was it the work of South Australian bureaucrats?

The Hon. G.E. GAGO: I have been advised that this provision is South Australian legislation. We are not adding in any new words, we are simply deleting 'supply or administer'. The advice has come from parliamentary counsel who has picked up this unintended consequence.

The Hon. S.G. WADE: I certainly appreciate that the advice for the amendment came from parliamentary counsel, and I am very respectful of that. Presumably, we have a national law which has a series of sets of provisions that different states and territories need to put in to make sure that it works as a whole; and, if that is the case, presumably this defect was in all the state laws and therefore similar procedures are being done by all different states and territories.

I presume, on the other hand, that a set of amendments will also be necessary for South Australia's specific circumstances. If you like, I am asking: is this a part of the national sister set of amendments, or is this a part of the South Australian specific amendments?

The Hon. G.E. GAGO: I am advised that, no, this provision is not part of commonwealth law and that it comes under specific South Australian controlled legislation, specifically the Controlled Substances (Poisons) Regulations 1996.

The Hon. S.G. WADE: Thank you, minister.

The Hon. J.M.A. LENSINK: On my reading, the words 'supply or administer' have been deleted, but the amendment affects the existing clause such that it will read, 'A person must not prescribe a prescription drug,' etc. If the supply or administration is removed, under what clauses will the supply and administration of this class of drugs be administered?

The Hon. G.E. GAGO: I have been advised that the aspects of the supply and administration of these prescribed prescription drugs are covered in the new commonwealth bill before us. The matter we are considering at the moment applies to only one very small group listed in schedule K of the regulations.

Amendment carried; clause as amended passed.

Clause 14.

The Hon. R.L. BROKENSHIRE: I ask the minister: will this bill make it possible for nurses to set up a drug rehab clinic or, say, a needle injecting program without a doctor's supervision, or is that already possible under South Australian law?

The Hon. G.E. GAGO: I have been advised no.

Clause passed.

Clauses 15 to 21 passed.

Clause 22.

The Hon. R.L. BROKENSHIRE: I just want to get some clarification on needle vending machines, because in the second reading explanation it was stated that the medical devices that would be permitted to be sold via automatic vending machines are, among others, injecting equipment with the condition that that the site and location of the vending machine are approved by the minister.

I ask the minister: is that form of vending machine possible under existing law, or is it currently banned; do other states have needle vending machines; and do we as a state legislature, giving away our powers, have any right to stop such vending machines being rolled out here?

The Hon. G.E. GAGO: I have been advised that currently pharmacists, medical practitioners and persons acting in the course of a declared health risk program, such as a clean needle program, can sell or supply needles and syringes to injecting drug users. This includes sale or supply via automatic vending machines. Supply via automatic vending machines can help address gaps in the clean needle program service provision. It can enable drug users to access clean needles and syringes after hours, on weekends and in country areas.

It also enables injecting drug users who have been unwilling to engage with a clean needle program to access clean needles and syringes and can offer the staff of the program the opportunity to interact with drug users. Under the amendments of the bill, there would be an added control as the site and location of an automatic vending machine used for the supply of needles and syringes would have to be approved by the minister. This would ensure that the automatic vending machines are sited in appropriate locations such as existing clean needle program sites.

There are significant costs to the community through the transmission of blood-borne diseases such as hepatitis C and HIV. Providing access to clean needles and syringes has a public health benefit in helping to reduce the spread of blood-borne diseases. Needle and syringe programs are a cost-effective means of preventing transmission of these diseases.

The report entitled Return on investment 2: evaluating the cost-effectiveness of needle and syringe programs in Australia states that in South Australia it is estimated that for every one dollar invested in a needle and syringe program more than five dollars is returned additional to the investment in healthcare cost savings by preventing life-threatening infections. In South Australia $15 million was invested in needle and syringe programs between 2000 and 2009 resulting in a $93 million saved in downstream health-care costs.

Cost savings include the prevention of approximately 122 new HIV infections and 8,987 new hepatitis infections during the study period, so the research is quite compelling. As we know, a drug user who does not have access to a clean syringe is highly likely to use an already used syringe. Those people with drug addictions are often prepared to put themselves at great risk because of their addiction.

It is highly unlikely that they simply would not have their fix because a clean needle was not available to them. Unfortunately, it is common practice that, if a clean needle is not available, people will use dirty syringes, and we know that there are enormous health risks, enormous personal tragedies and financial costs to the community associated with that. So I think this is a positive move.

The Hon. R.L. BROKENSHIRE: I have a point of clarification. I acknowledge that there are clean needles and syringes made available, as the minister has said, in places like pharmacies and hospitals across the state, but I just want some further clarification. The minister said that the minister would have the decision about where further vending machines may be placed.

Can the minister assure the committee that there would not be a unilateral decision made with these powers being handed over to the commonwealth which the commonwealth then overrides and says, 'We're going to start putting these machines next to fast food outlets and other facilities, such as schools, preschools, etc.'? Could the minister give us some clarification on that? Whilst I acknowledge the benefits, I would be very concerned if, all of a sudden, we started having vending machines next to the Coca-Cola machines across Rundle Mall and other places.

The Hon. G.E. GAGO: I have been advised that the state currently has discretion as to the location of these vending machines. I have been advised that the bill before us does not erode the current state discretion to locate machines.

The Hon. S.G. WADE: In relation to the Hon. Mr Brokenshire's last point where, as I understand it, he was suggesting a hypothetical situation where the commonwealth might take a policy decision about the placing of automatic vending machines, if the commonwealth changed the national law, under clause 6, new section 11A(1) would apply in South Australia as the law of South Australia. But the modifications that we are permitted to allow to be considered as part of the law are only modifications by, or under, this part.

The elements in relation to vending machines are not within that part. So, my reading of new section 11A(4) is that that inconsistency would be overridden. In other words, a commonwealth provision in relation to automatic vending machines would be able to be overridden because it is outside new Part 2A.

The Hon. G.E. GAGO: I have been advised that the location of vending machines is completely outside of the scope of this bill.

The Hon. S.G. WADE: If that is the case, why does clause 15 provide 'Amendment of section 12—Prohibition of automatic vending machines'? In what sense is it completely outside the scope of this bill, if it is mentioned in this bill?

The Hon. G.E. GAGO: I have been advised that the discretion about the location of vending machines is outside the scope of this bill.

The Hon. S.G. WADE: That is of interest but the Hon. Robert Brokenshire is suggesting that the commonwealth, as I understand it—I might have misunderstood him—may make a policy decision enforced by legislation at the national law level in relation to what can happen with automatic vending machines. If they do that my reading is that no matter what we do in our bill it is outside part 2A and we are subject to overriding inconsistency.

The Hon. G.E. GAGO: I need to correct the record. The discretion to do with the location of the vending machines is outside the scope of the commonwealth therapeutic goods law.

The Hon. S.G. WADE: I am getting better informed all the time, but I am not fussed about the location: I am just fussed about their legislating. They could legislate to prohibit, for example, but apparently we are open to automatic vending machines. Let's not get too fixated about the particular example; I am just trying to understand the extent to which this parliament is keeping custody of its own law.

It seems that the only modifications we can make that will become incorporated into applied provisions are amendments that can be made under new section 11A. As I understand it, the rest of it is liable to be overridden by commonwealth law. If that is the case, I think that changes dramatically the complexion of the bill, and I indicate to the minister that that would certainly encourage the opposition to seek reporting of progress.

The Hon. G.E. GAGO: I have been advised that, in effect, the commonwealth can make laws on any matter within its constitutional powers. That is its prerogative: it could attempt to make any law on any matter within its constitutional powers. However, in the context of this bill, the commonwealth-applied laws have nothing to do with vending machines; only the South Australian section 20 of the Controlled Substances Act covers this.

The Hon. S.G. WADE: The minister seems to be fixated on automatic vending machines. I am trying to get fixated on the extent of the applied provisions. Picking up on the minister's assertion that the commonwealth can make any law on any matter, and the fact that the South Australian law is there, let's remember what we are doing here: we are applying a commonwealth law as South Australian law. As soon as it comes across the border it is not a commonwealth law any more; it is a South Australian law and it assumes all of our constitutional authority, so assurances from the minister about the limitations of commonwealth constitutional authority are all very interesting, but they are very concerning.

I would suggest to the honourable members who have been participating in this debate that the minister's recent remarks have suggested that the modifications to the regime that we were led to believe would be possible are only possible in relation to new section 11A amendments and the rest of the bill is completely at the mercy of an aggressive commonwealth parliament, so I suggest to honourable members—and I defer to other members, particularly the Hon. Michelle Lensink—that this might well be an appropriate time to report progress.

The Hon. G.E. GAGO: I think the honourable member is confusing matters. If we go back to basics, the commonwealth law is about the registration of medicines and medical devices and some matters that flow from that. The matters covered by the South Australian Controlled Substances Act cover different matters, unrelated to those covered in the commonwealth act. Any likelihood of inconsistency between those is absolutely minuscule, I am advised. New section 11A(4) was added out of an abundance of caution to ensure any potential for constitutional problems is avoided.

The modifications we have been talking about are related to topics covered by the commonwealth act, not by the South Australian Controlled Substances Act; they are two separate things that have been confused through the debate.

The Hon. S.G. WADE: Without wanting to reflect on where the confusion may have been fostered, I still see that there is a risk of inconsistency and that new section 11A(4) would give the commonwealth law the effect of South Australian law. The fact that the current national law is limited does not give us any reassurance that a future national law will not be limited. Putting aside the issue of self restraint by the commonwealth, I also have concerns about the extent to which delegating legislative authority through national law (which is applied law) may well allow the commonwealth to assume some of our constitutional authority.

With all humility, and admitting I may be confused and eager to receive the learned counsel of the minister and any advisers she may offer, I submit that at a personal level I would like committee to report progress so that I can receive further briefings.

Progress reported; committee to sit again.

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