Public Health (Medicinal Cannabis) Bill 2016
Kindly accept this submission by the Queensland Council for Civil Liberties in relation to the above Bill.
We would make the process point that the consultation webpage provides no mechanism by which an interested party can make comment other than completing the online form. Furthermore, there is no provision for contacting anybody in the Department to request an extension of time.
In this particular case, the Council’s expert on drug policy has unfortunately found himself unable to complete his response to the discussion paper. This submission is a commentary on the legislation from a legal point of view, and not from a drug policy point of view. We would request the opportunity to put in a second submission addressing the discussion paper.
In case we are not permitted to lodge a supplementary submission the QCCL makes the following points:
1. In our view cannabis ought to be legalised.
2. In our submission, the process contemplated under this legislation is extremely bureaucratic and process driven. The focus of the legislation should be the treatment of ill people. In California, you can see a doctor and walk out of the pharmacy the same day with a prescription. Why can we not have that system in this country?
3. We are also concerned that the legislation does not seem to contemplate the use of smoked or vaporised cannabis. This we can only assume is because of an irrational Prohibitionist opposition to that happening, notwithstanding the evidence of the effectiveness of smoked or vaporised cannabis as a treatment for some conditions.
4. The legislation also needs to address the need to make changes to the drug driving laws to take account of the availability of cannabis as a medicine. For the record, we maintain our position that the current drug driving laws are inappropriate given that there is no scientific basis to establish a connection between the amount of drug in a person’s system that person’s capacity to drive.
Clause 10
Whilst the government adheres to a Prohibitionist model the logic of accessing the criminal history of an applicant to hold an approval to make the product is inescapable. However, it is our view that it is not necessary even from that point of view to review the criminal history of any other person in the process. In particular, it is our strong view that the only relevant criteria in the case of the patient are medical. Accordingly we particularly object to clause 10 subparagraph (c).
Clause 21 (4)
We are concerned about the breadth of this provision. Obtaining written opinions from a specialist medical practitioner has the prospect of being expensive. We submit that this provision should restrict the capacity of the Chief Executive to request additional medical opinion after the first opinion to circumstances dictated by the treatment of the patient.
Clause 23 (1) (h)
This comment follows on from our submission in relation clause 10. The relevant questions for the patient are whether they need to be treated and whether the treatment will be effective.
Clause 26
Chief Executive should be given an express power to extend the times contained within this section.
Clauses 27 and 28
We object to these clauses.
Firstly, we object absolutely to the release of details of charges as opposed to convictions. In the Council’s view the appropriate balancing between the rights of the community and the rights of a person suspected of an offence to get on with their life is to limit any disclosure that is to be made to matters of which a person has been convicted.
Secondly, we object, as we have previously said, without qualification to the examination of criminal history of any person except the manufacturer.
Finally, we say that if that submission is rejected in all cases the only criminal history which should be accessible should be that allowed under the Criminal Law (Rehabilitation of Offenders) Act which is relevant to the application in question. In the Council’s view the Criminal Law (Rehabilitation of Offenders) Act 1986 represents an appropriate balancing of interests between the rights of a person who has been convicted of an offence to be rehabilitated and the protection of the community. We see no justification in the circumstances of this legislation for the setting aside of that Act.
Powers of Inspectors Chapter 7.
Over a series of submissions to various committees the QCCL has developed some principles concerning the appropriate powers for inspectors. In preparing these principles the Council has had regard to the fourth report of the Senate Standing Committee for the Scrutiny of Bills – Entry and Search Provisions in Commonwealth Legislation 6 April 2000 and the Report of the Victorian Parliament Law Reform Committee – The Powers of Entry, Search, Seizure and Questioning of Authorised Persons – May 2002
In the Council’s view legislation should reflect the fact that the powers of inspectors serve different ends and those different ends need to be reflected in different types of powers and safeguards.
The legislation should recognise the distinction between the powers that an inspector should have to:-
1. investigate where a person is possibly exposed to some sanction be it criminal or otherwise.
2. monitor compliance with a regulatory scheme or funding program.
3. deal with emergency situations.
The Council says that:-
1. In first category of case a search warrant issued by judicial officer should be a prerequisite of an entry and search.
2. In the second category where the Authority wants to carry out an audit of compliance with guidelines, regulations or similar applied to an organisation we would accept that there is a proper basis for authorising entry under the legislation without consent and without a warrant so long as there is reasonable notice and it is to be carried during business hours. The inspectors need to be required to identify themselves properly and to identify the purposes for which they are conducting the search. Refusal to consent or allow entry would form the basis of an application for a warrant. In these sorts of situations the inspectors would only be allowed to go in and audit and inspect. They should not be authorised to seize things or arrest people.
3. We accept that circumstances may arise which make it impractical to obtain a warrant before an effective entry and search can be made. However, impracticality should be assessed in the context of current technology given the provisions allowing for electronic applications for a warrant. If an official exercises a power to enter and search in circumstances of impracticality, that official must then, as soon as reasonably possible, justify that action to a judicial officer.
We now seek to apply these principles to the Bill:
1. In many respects the Bill adequately balances the right to privacy with the public interest in law enforcement.
2. Clause 105 (1)(d) should be modified in accordance with the second principle enunciated above to make it clear that the entry is to be solely for the purpose of carrying out an audit for compliance with rules, guidelines or other statutory requirements applied to the organisation. It might be said that that limitation is implicit. However, we would prefer it were actually stated in the section to avoid any doubt.
3. Clause 110 should make it mandatory that the inspector obtains written consent or makes an electronic recording of the consent to the entry and the consent is by a person authorised to do so. In the case of a business that should be an owner, director or manager. The consent of, for example, the receptionist should not be enough.
4. Part 2 Division 2 should be qualified by a provision stating that evidence obtained during an inspection by consent is only admissible in relation to a proceeding under the legislation pursuant to which the inspector was acting at the time of the inspection.
5. Clause 116. It seems to us that this section narrows the test for setting aside a search warrant from that at common law. It is our submission that this section should be removed and the common law applied.
6. Part 3 Division 1. Having regard to clause 117 of the Bill it follows from our statement of principles above that before a vehicle can be inspected, absent circumstances making the obtaining one impractical, a warrant should be a prerequisite. Of course if it is alleged impractical circumstances exist then the action will have to be justified to a judicial officer after the event. We would be particularly concerned about the concept of inspectors engaging in chases. Serious issues have arisen because of police car chases. We would have thought that this alone would deter the granting of such powers. We submit that the offences provided for in this Bill do not justify Inspectors engaging in inherently dangerous high speed car chases.
7. Clause 123(4). The QCCL is concerned based upon complaints it has received from members of the public and the experience of legal practitioners who are members of the Council that the police frequently detain computers for long periods of time. In contemporary society access to a computer is a critical part of life both for social and financial reasons. Furthermore, it is relatively easy for a forensic image to be taken of any computer or similar device. The legislation should provide that the inspector is required to return the device within say seven (7) days absent a Court Order extending the time. It should be a prerequisite to obtaining an Order that the inspector demonstrates that it has not been reasonably practical to obtain a forensic image or that for some reason a forensic image is inadequate for the purposes of the investigation.
8. Clause 128. Provision needs to be made for innocent third parties such as financial institutions to apply to the Court to obtain the release of anything seized so that they can vindicate their rights. An innocent third party such as a financier should have a separate right to obtain the release of the goods and if the inspector will not agree to seek a Court Order in that regard. This right should of course extend to liquidators and receivers.
9. Individuals executing search warrants should be required to report to the Court. The legislation should contain provisions similar to that in Section 21 of the Search Warrants Act 1985 (NSW) requiring the person to whom the warrant is issued to furnish a report in writing to the Court who issued it stating whether or not the warrant was executed and setting out the results of the execution or setting out the reasons for why the warrant was not executed.
10. Clause 143. We object to this provision as an unjustified abrogation of the privilege against self- incrimination.
11. Clause 144. We object to sub-clause 2 on the basis that it violates the privilege against self-incrimination.
12. Clause 157. Whilst we accept that given clause 146 this is a comparatively minor incursion into the privilege against self-incrimination we record our in principle objection to it. In our view derivative use immunities are no substitute for the privilege. The type of offences dealt with in this legislation in no way justify the abolition of the privilege.