NSW Drug and Alcohol Treatment Act 2007 overview

THE DRUG AND ALCOHOL
TREATMENT ACT 2007 (NSW)
AND ADMINISTRATIVE DECISION-MAKING
Dr Ian Ellis-Jones PhD
Solicitor of the Supreme Court of New South Wales and the High Court of Australia
Former Senior Lecturer, Faculty of Law, University of Technology, Sydney
Lecturer, New South Wales Institute of Psychiatry
Consultant - Trainer - Facilitator - Wellness Instructor and Practitioner
Some Slides Courtesy Warner Bros Pictures and Google Images. All Rights Reserved.

THE DRUG AND ALCOHOL
TREATMENT ACT 2007 (NSW)
3

Drug and Alcohol Treatment Act 2007 (NSW)
Overview
•Drug and Alcohol Treatment
Act 2007 (NSW) created to
provide legal basis for …
•2-year trial …
– short-term involuntary care and
treatment …group of persons …
• with severe substance
dependence
• detoxification to rebuild health
• linked in a planned and
considered way to longer-term
rehabilitation and support
•Involuntary Drug and Alcohol Treatment
Program (the ‘Program’) 4

• first people treated …
– part of the Drug and
Alcohol Involuntary
Treatment Trial
– living in the Sydney
West Area Health
Service catchment
area.
5

• An accredited medical
practitioner (‘AMP’) can
issue a dependency
certificate …
– person can be detained …
• for up to 28 days … in the
first instance
6

A dependency certificate …
• may be issued in relation to a person
only if the AMP is satisfied …
• the person has a severe substance
dependence, and
• care, treatment or control of the
person is necessary to protect the
person from serious harm, and
• the person is likely to benefit from
treatment for his or her substance
dependence but has refused treatment,
and
• no other appropriate and less
restrictive means for dealing with the
person are reasonably available.
7

Drug and Alcohol
Treatment Act 2007
(NSW)
• AMP can also take into account …
– any serious harm that may occur to …
• children in the care of the person, or
• other dependants
• Places where people are being treated under the Act ...
– the Centre for Addiction Medicine at Nepean Hospital
– Bloomfield Campus, Mental Health and Drug & Alcohol Services, at
Orange
8

• A magistrate must review a dependency
certificate …
– as soon as practicable after it is issued
• The magistrate can:
– discharge a patient, or
– uphold, extend or shorten the time of
involuntary treatment under a dependency
certificate.
9

• Legal aid …
– available through duty
solicitors for the reviews
held before the visiting
magistrate
• If unhappy with magistrate's
decision …
– one can apply to the
Administrative
Decisions Tribunal
(ADT) for a review of the
decision.
10

Drug and Alcohol
Treatment Act
2007 (NSW)
Official Visitors …
•same role as official visitors under the Mental Health Act
2007 (NSW)
•a client can contact an official visitor …
– concerns about care and treatment as an involuntary
patient under the trial
– complaints and concerns about the physical conditions
at the hospital.
11

Finding Legislation
NEW SOUTH WALES
LEGISLATION
www.legislation.nsw.gov.au
www.austlii.edu.au/au/nsw/
NEW SOUTH WALES
LEGISLATION
www.legislation.nsw.gov.au
www.austlii.edu.au/au/nsw/
COMMONWEALTH
LEGISLATION
www.comlaw.gov.au
www.austlii.edu.au/au/cth/
COMMONWEALTH
LEGISLATION
www.comlaw.gov.au
www.austlii.edu.au/au/cth/

Types of Legislation
• Primary Legislation – Acts of
Parliament (aka statutes)
• Subordinate Legislation (statutory
instruments) – aka Delegated
Legislation …
–Rules, Regulations, By-laws,
Ordinances, etc.

TYPES OF PRIMARY LEGISLATION
AMENDING ACT
•Mental Health Legislation
Amendment (Forensic
Provisions) Act 2008 (NSW)
Acts of Parliament (statutes)
generally fall into 2 types:
PRINCIPAL ACT
•Mental Health Act 2007(NSW)
•Drug and Alcohol TreatmentAct 2007 (NSW)

From time to time Acts are REPRINTEDand all the amendments are incorporatedinto the principal Act … that is, the principal
Act is up to the date as at the date of thereprint.
Where a principal Act is amended a SIDE
NOTE or END NOTE is inserted providing
a history of the section.
If a principal Act has been amended after
the last reprint then the amending Actand the principal Act must be read together.

Reading Primary Legislation
STATUTE
Structure of Legislation
Examples
Chapters ………..Chapter 1
Parts……………..Part 2
Divisions……..… Division 4
Subdivisions…….Subdivision 2
Section…….….....s.20
Subsection……....s.20(4)
Paragraph.……....s.20(4)(b)
Subparagraph…..s.20(4)(b)(i)
STATUTE
Examples
Section…….….....s.20
Subsection……....s.20(4)
Paragraph.……....s.20(4)(b)
Subparagraph…..s.20(4)(b)(i)

Reading Subordinate Legislation
STATUTORY INSTRUMENT
Examples
Clause…….…......cl.20
Subclause…….....cl.20(4)
Paragraph.……....cl.20(4)(b)
Subparagraph…..cl.20(4)(b)(i)
Item………………Item 1 or Sch 1(1)
STATUTORY INSTRUMENT
Examples
Clause…….…......cl.20
Subclause…….....cl.20(4)
Paragraph.……....cl.20(4)(b)
Subparagraph…..cl.20(4)(b)(i)
Item………………Item 1 or Sch 1(1)

By their very nature words in the English language
can be interpreted in different ways and can have
different meanings in different contexts.
When a court is asked to interpret legislation
the court is being asked to determine:
- the meaning of the words in a statutory provision,
and
- the circumstances in which the provision
applies (‘scope’).
INTERPRETATION OF LEGISLATION

• Never read a section of an Act in isolation.
• Always read a section in light of all other
sections of the Act.
• Where there is or appears to be a conflict
or inconsistency between 2 or more
provisions of an Act …
–adopt if possible an interpretation which
would harmonise as far as possible the
several provisions. …
How to Interpret
an Act of Parliament
How to Interpret

• The sense (legal or otherwise) in which a statute
uses a word or phrase is a question of law.
• The meaning of an “ordinary” word or phrase in a
statute is a question of fact ...
– Such a word or phrase is to be given its ordinary
everyday meaning.
– Use a reputable dictionary of the English
language to ascertain the ordinary meaning of
ordinary words in the English language. …
How to Interpret
How to Interpret

• The meaning of a truly “legal” word or phrase in
a statute, or even an ordinary word that is
intended to have a “legal” meaning in the statute,
is a question of law ...
– Use a reputable legal dictionary to ascertain the
meaning of legal words or phrases …
– Use a reputable medical dictionary to ascertain
the meaning of medical words, and so forth.
How to Interpret
How to Interpret

• What is the ordinary meaning of the words?
• Do the words have a particular legal or medical
meaning?
• Does the context in which the section appears in the
Act affect its meaning?
• What is the purpose of the section?
• What was Parliament attempting to achieve by
including the section in the Act?
• How have Courts interpreted (defined) the words in
the section?
• Would this interpretation lead to an absurd result?
How to Interpret
How to Interpret
- ASK YOURSELF -

• A statute should be given a purposive
construction …
– to ensure that, so far as possible, the objects
of the Act are achieved.
• Avoid an unduly narrow interpretation of
the words used by Parliament … where
such an approach would frustrate the
achievement of the stated objects of the
Act. …
How to Interpret
How to Interpret

• Generally avoid a wide interpretation of the words
used by Parliament …
– where you are dealing with …
• a fiscal or penal provision, or
• a provision which affects rights, interests or
legitimate expectations.
• Provisions which confer rights, etc … e.g. right of
citizen to be heard or notified … must ordinarily be
strictly followed and complied with.
How to Interpret
How to Interpret

Drug and Alcohol
Treatment Act 2007 (NSW)
Long Title …
•An Act to provide for the
health and safety of
persons with a severe
substance dependence
through involuntary
detention, care, treatment
and stabilisation; and for
other purposes.
28

3. Objects of Act
(1) The objects of this Act are:
(a) to provide for the involuntary treatment of persons with a
severe substance dependence with the aim of protecting their
health and safety, and
(b) to facilitate a comprehensive assessment of those persons
in relation to their dependency, and
(c) to facilitate the stabilisation of those persons through
medical treatment, including, for example, medically assisted
withdrawal, and
(d) to give those persons the opportunity to engage in
voluntary treatment and restore their capacity to make
decisions about their substance use and personal welfare.
29

…
(2) This Act must be interpreted, and every function conferred or
imposed by this Act must be performed or exercised, so that, as
far as practicable:
(a) involuntary detention and treatment of those persons is a
consideration of last resort, and
(b) the interests of those persons is paramount in decisions
made under this Act, and
(c) those persons will receive the best possible treatment in
the least restrictive environment that will enable treatment to
be effectively given, and
(d) any interference with the rights, dignity and self-respect
of those persons will be kept to the minimum necessary.
30

DRUG AND ALCOHOL TREATMENT ACT 2007 (NSW)
5. Definitions
(1) In this Act:
…
'severe substance dependence', in relation to a person,
means the person:
(a) has a tolerance to a substance, and
(b) shows withdrawal symptoms when the person stops using, or
reduces the level of use of, the substance, and
(c) has lost the capacity to make decisions about his or her
substance use and personal welfare due primarily to his or her
dependence on the substance.
IEJ NOTE: Words such as ‘tolerance’ and ‘withdrawal
symptoms’ are to be given their ordinary accepted meanings in the medical
and psychological sciences. This is the statutory definition to be applied for
the purposes of this Act, regardless of what might otherwise be the position in
ordinary clinical practice.
'substance' means a substance, or a combination of substances,
listed in Schedule 1. … …
31

6. General restriction on involuntary detention
A person must not be detained in a treatment centre
under this Act unless an accredited medical practitioner
has issued a dependency certificate in relation to the
person.
IEJ NOTE: As the Inquiry into Human Rights and Mental Illness (Burdekin
Inquiry) 1991-92 pointed out, involuntary detention, for any reason and under
any circumstances, is an extremely serious matter involving curtailment of
several fundamental rights the most important of which is the right to liberty.
32

APPOINTMENT OF
ACCREDITED MEDICAL PRACTITIONERS
DRUG AND ALCOHOL TREATMENT
ACT 2007 (NSW)
7. Accredited medical practitioners
(1) The Director-General may appoint a
medical practitioner as an accredited
medical practitioner.
(2) The Director-General may appoint
the holder of an office (who is a
medical practitioner) as an accredited
medical practitioner.
(3) The Director-General may impose
conditions for exercising the functions
of an accredited medical practitioner. 33

DECLARATION OF TREATMENT CENTRES
8. Declaration of treatment centres
(1) The Director-General, by order published in the Gazette:
(a) may declare any premises to which this section applies, and that are specified or
described in the order, to be a treatment centre under this Act, and
(b) may, in the same or another order so published, name the premises so specified or
described.
(2) Without limiting subsection (1), an order may change the name assigned to any
premises specified or described in the order.
(3) This section applies to the following premises:
(a) premises that belong to or are under the control of the State or an authority of the
State or a person acting on behalf of the State or an authority of the State,
(b) a facility of a public health organisation within the meaning of the Health Services
Act 1997,
(c) premises that the owner or person who has control of the premises has agreed, by
an instrument in writing given to the Director-General, to being premises to which this
section applies. 34

ASSESSMENT FOR
DETENTION AND TREATMENT …
Assessment
‘If the screening and information gathering process
identifies that a patient is likely to be suitable for a
Dependency Certificate, a referral is made for a face to
face AMP assessment to determine whether a
Dependency Certificate for in-patient detention and
treatment should be issued. The AMP assessment must
take place as soon as practicable after referral from the
intake worker.
‘The AMP undertakes a comprehensive assessment,
building on previously gathered information, …’
- Model of Care Involuntary Drug and Alcohol Treatment
Program [draft at 5/4/12], NSW Health, p 19. 35

ASSESSMENT FOR
9. Assessing persons for detention and treatment
(1)A medical practitioner may request an accredited
medical practitioner to assess …
IEJ NOTE: the word ‘assess’ means or at least includes both observe [incl. ‘see’; cf. s.10(2),
‘visit and assess’] and evaluate a person for detention and treatment under this Act before any decision is
made or action taken under the Act.
(2) After assessing the person, the accredited medical
practitioner may issue a certificate (a 'dependency
certificate'), in the form shown in Schedule 2, stating the
person may be detained for treatment under this Act for
the period stated in the certificate. … cont’d36

ASSESSMENT FOR
(3) A dependency certificate may be issued in relation to the person only if
the accredited medical practitioner is satisfied: …
IEJ NOTE: the word ‘satisfied’ means ‘reasonably satisfied’ in law; the words
‘reasonably satisfied’ refer to a state of satisfaction that can be arrived at by a
reasonable person of the kind in question who properly understands and applies the
correct ‘test(s)’ to be applied without irrelevant considerations being taken into
account or otherwise acting whimsically, arbitrarily or capriciously.
(a)the person has a severe substance dependence, and …
IEJ NOTE: Whether a person has a ‘severe substance dependence’ within
the meaning of the Act is, in law, an essential question of jurisdictional fact that
enlivens jurisdiction (i.e. power) to act. Proper, lawful determination of this and
related issues is an essential prerequisite or precondition for valid, lawful decision-
making: cf Rand G v Mental Health Review Tribunal & Sydney Local Health
District (NSW Supreme Court, White J, 2012/185645, 12 July 2012.
…cont’d 37

ASSESSMENT FOR
(b) care, treatment or control of the person is necessary to
protect the person from serious harm, and …
IEJ NOTES:
* the word ‘necessary’ (as used here) means ‘reasonably required’;
* ‘harm’ (as used here) is not limited to just physical harm but would also include psychological harm and
possibly other forms of harm as well; see, in that regard, Re J (No. 2) [2011] NSWSC 1224 (NSW
Supreme Court, White J)---a case on the Mental Health Act 2007 (NSW)---White J came to no firm
conclusion as to whether ‘serious harm’ included serious financial harm, but stated that there was much to
be said for the submission that ‘serious harm’ in s.14 of the Mental Health Act refers to either physical
harm or psychological harm; in light of this decision, it would now appear that, even in cases of financial
harm, the basis for involuntary detention would rarely, if ever, be justifiable.
•(c) the person is likely to benefit from treatment for his or her
substance dependence but has refused treatment, and
IEJ NOTE: The word ‘likely’ can, in some context, mean ‘probably’, that is to say, more likely than not or more than a
50 per cent chance; however the word can also mean ‘a real chance or possibility’, that is, a real or not remote chance or
possibility regardless of whether it is less or more than 50 per cent; arguably, the word ‘likely’ (as used here) is not
synonymous with ‘more likely than not’. …cont’d

ASSESSMENT FOR
DETENTION AND TREATMENT
(d) no other appropriate and less restrictive means for
dealing with the person are reasonably available.
(4) The accredited medical practitioner may have regard to
…
IEJ NOTE: arguably not an exhaustive list (except arguably as respects the classes of persons, to whom
harm may occur, that may be taken into account), but be careful what other matters you take into
account.
any serious harm that may occur to:
(a) children in the care of the person, or
(b) dependants of the person.
(5) If a dependency certificate is issued in relation to the
person assessed under this section, the person may be
detained in accordance with the certificate for treatment
under this Act. 39

Form of dependency certificate …
SCHEDULE 2 - Dependency certificate
(Section 9 (2)) Drug and Alcohol Treatment Act 2007
Part 1
I, [name in full - use block letters] (accredited medical practitioner) of [address] certify that
on [date] immediately before, or shortly before, completing this certificate, I personally assessed
[name of person in full] under section 9 of the Drug and Alcohol Treatment Act 2007 at [state
place where assessment took place] for a period of [state length of assessment].
I certify the following matters:
1. I am of the opinion that:
(a) the person I assessed (the dependent person) has a severe substance dependence, and
(b) care, treatment or control of the person is necessary to protect the person from serious harm,
and
(c) the person is likely to benefit from treatment for his or her substance dependence but the
person has refused treatment, and
(d) no other appropriate and less restrictive means for dealing with the person are
reasonably available. … cont’d 40

Form of dependency certificate …
…
2. The following incidents and/or abnormalities of behaviour have been observed by
me and/or communicated to me by others (state name, relationship and address of
each informant): [emphasis added]
3. The general medical and/or surgical condition of the dependent person is as follows:
4. The following medication (if any) has been administered for the purposes of treating
the dependent person:
5. I am of the opinion the dependent person should be detained for 28* days for
treatment under the Drug and Alcohol Treatment Act 2007.
(* lesser days may be inserted in item 5 by the accredited medical practitioner)
6. I am not a near relative or the primary carer of the dependent person.
Signed this day of 20..
Signature

41

Form of dependency certificate
…
Part 2
A member of staff of the NSW Health Service or a police officer may transport the dependent
person to a treatment centre under the Drug and Alcohol Treatment Act 2007.
If the assistance of a police officer is required, this Part of the Form must be completed.
YOU SHOULD NOT REQUEST THIS ASSISTANCE UNLESS THERE ARE SERIOUS
CONCERNS RELATING TO THE SAFETY OF THE DEPENDENT PERSON OR OTHER
PERSONS IF THE PERSON IS TAKEN TO A TREATMENT CENTRE WITHOUT THE
ASSISTANCE OF A POLICE OFFICER.
I have assessed the risk and I am of the opinion that there are serious concerns relating to the
safety of the dependent person or other persons if the dependent person is taken to a treatment
centre without the assistance of a police officer. The reason for me being of this opinion is
(include any information known about the dependent person relevant to the risk):
Signed this          day of           20..
Signature

Note: [NOT REPRODUCED ON THIS SLIDE, BUT MUST BE INCLUDED]

42

ORDER FOR ASSESSMENT …
10. Order for assessment
(1) This section applies if the accredited medical
practitioner is unable to access the person to conduct
the assessment requested under section 9.
(2) A Magistrate or authorised officer may, by order,
authorise the accredited medical practitioner to visit and
assess the person to ascertain whether a dependency
certificate should be issued in relation to the person.
(3) However, the order may be made only if the
Magistrate or officer is satisfied, by evidence on oath,
that: … cont’d 43

ORDER FOR ASSESSMENT …
(a) the person is likely to have a severe substance
dependence, and
(b) the person is likely to be in need of protection from
serious harm [IEJ NOTE: ‘harm’ (here) is not limited to just
physical harm] or others are likely to be in need of
protection from serious physical harm [IEJ NOTE: ‘harm’
(as used here) is limited to just ‘physical’ harm], and
(c) because of physical inaccessibility, the person could
not, but for the making of an order under this section, be
assessed, and
(d) the person is likely to benefit from the treatment.
… cont’d 44

ORDER FOR ASSESSMENT
(4) The order may also authorise another person (including a police officer) who
may be required to assist the accredited medical practitioner in conducting the
assessment to accompany the accredited medical practitioner.
(5) The accredited medical practitioner and any other person authorised under
this section may enter premises, if need be by force [IEJ NOTE: ‘force’ means
‘reasonable force,’ that is, whatever force is reasonably necessary in order to effect an
entry, but no more force must be used than is necessary for the purpose of effecting
entry], to carry out the assessment.
(6) If a dependency certificate is issued in relation to the person assessed under
this section, the person may be detained in accordance with the certificate for
treatment under this Act.
(7) A person who takes action under the order must, as soon as practicable after
taking the action, give written notice of the action taken to the person who made
the order.
(8) In this section:
'authorised officer' means an authorised officer within the meaning of the Criminal
Procedure Act 1986.
45

If certificate not issued, advice must be given
12. If certificate not issued, advice must be given
(1) Subsection (2) applies if the accredited medical
practitioner is not satisfied a dependency certificate
should be issued in relation to the person being
assessed under this Part.
(2) The practitioner must, if the practitioner considers it
appropriate, give advice on alternative options available
for treating the person:
(a) to the person, and
(b) to the primary carer, if any, of the person. 46

Length of initial detention
and review of dependency certificate
14. Length of initial detention and review of dependency
certificate
If an accredited medical practitioner issues a dependency
certificate in relation to a person being assessed:
(a) the person must not be detained for treatment for more than
28 days after the day the certificate is issued, and
(b) an accredited medical practitioner must, as soon as
practicable [IEJ NOTE: those words mean ‘in the shortest time that
can be arranged in all the circumstances’] after the certificate is
issued, bring the person before a Magistrate for a review of the
issuing of the certificate.
Note: Under Part 4, the period of detention may be reduced or it may be extended for up to a total
period of not more than 3 months from the day the certificate is issued. 47

Review by Magistrate …
34. Reviewing issue of dependency certificates
(1) A Magistrate must hold an inquiry in relation to a person
brought before the Magistrate in accordance with section 14.
(2) An accredited medical practitioner must make all necessary
arrangements to ensure that:
(a) all appropriate medical witnesses appear before the
Magistrate, and
(b) other relevant medical evidence concerning the person is
placed before the Magistrate.
(3) The Magistrate must determine whether or not, on the balance
of probabilities, the person meets the criteria for detention under
section 9. … cont’d
48

…
(4) For that purpose, the Magistrate must consider the following:
(a) the reports and recommendations of any accredited medical practitioner who has
examined the person,
(b) any proposed further treatment for the person and the likelihood the treatment will
be of benefit to the person,
(c) the views of the person (if any),
(d) any cultural factors relating to the person that may be relevant to the
determination,
(e) any other relevant information given to the Magistrate.
(5) If the Magistrate is satisfied, on the balance of probabilities, that the person meets
the criteria for detention under section 9, the Magistrate may, having regard to the
matters considered under subsection (4):
(a) confirm the issuing of the dependency certificate, or
(b) confirm the issuing of the dependency certificate, but for a shorter period.
… cont’d
49

…
(6) If the Magistrate acts under subsection (5) (b),
the certificate has effect only for the shorter period.
(7) If the Magistrate is not satisfied, on the balance
of probabilities, that the person meets the criteria
for detention under section 9, the Magistrate must
order that the person be discharged from the
treatment centre and the dependency certificate is
of no further effect.
50

Other Statutory Functions
of an Accredited Medical Practitioner …
An accredited medical practitioner …
•may give or authorise the giving of, such treatment (including
any medication) as the practitioner thinks fit for the treatment of
the dependent person’s substance dependence (s.15(2))
•must give the dependent person an oral explanation and a
written statement of the person’s legal rights and other
entitlements under the Act (s.16)
•must, not later than 24 hours after the dependency certificate
has been issued, take all reasonably practicable steps to notify
the primary carer of the dependent person that the person has
been detained (s.17(1))
•must give, or cause to be given, to the dependent person a
statement of the rights of appeal conferred on the person
under the Act (s.18(1)) … cont’d51

of an Accredited Medical Practitioner …
• must take all reasonably practicable steps to notify the
primary carer of a dependent person if any of certain
specified events occurs (s.19(1))
• may apprehend a dependent person, or direct that the
person be apprehended, in certain specified circumstances
(s.22(1))
• may request that a police officer apprehend, or assist in
apprehending, a dependent person in certain specified
circumstances (s.23(1))
• may discharge a dependent person from a treatment centre
at any time if the practitioner is satisfied the person’s
continued presence at the treatment centre will not achieve
the purpose for which the person was detained (s.24(1))
… cont’d52

of an Accredited Medical Practitioner
• must discharge a dependent person from a treatment centre
if the practitioner is satisfied the person no longer meets the
criteria for detention and treatment under s.9(3) OR when the
dependency certificate in relation to the person ceases to
have effect (s.24(2))
• must take all reasonably practicable steps to ensure that
the dependent person, and the primary carer of the person,
are consulted in relation to planning the person’s discharge
and any later treatment or other action considered in relation
to the person (s.25(1))
• may apply to a Magistrate to extend the effective period of
a dependency certificate in certain specified circumstances
(s.35). 53

Limitation on Personal Liability
49. Liability of police officers and health care professionals exercising functions
under this Act
(1) Any member of staff of the NSW Health Service, health care professional or police
officer who, in good faith, exercises a function that is conferred or imposed on
that person by or under this Act is not personally liable for any injury or damage
caused by the exercise of that function.
(2) Nothing in this section, or any other provision of this Act or the regulations,
relieves a medical practitioner or other person from liability in respect of carrying
out medical treatment on a person to which the medical practitioner or other person
would have been subject had the treatment been carried out with the person’s
consent.
(3) Nothing in this section affects any exclusion from liability provided by another
provision of this Act or any other law.
(4) In this section, 'health care professional' means a person registered under the
Health Practitioner Regulation National Law.
54

Some important legal rules
with respect to the making of
lawful administrative decisions
55

These people … when exercising functions
for the purposes of the D & A Treatment Act … are
bound by the rules of Administrative Law …
• Accredited Medical Practitioners (AMPs) …
– an appropriately qualified medical professional, delegated by the
Director General and NSW Health, and appropriately accredited to
issue Dependency Certificates, under the Drug and Alcohol Treatment
Act (2007)
• Involuntary Treatment Liaison Officers
(ITLOs) …
– a health or medical professional, including qualified doctors, nurses or
psychiatrists who (is trained and skilled to) assess, screen,
recommend to refer and refer persons (if a doctor) for assessment by
an AMP for a Dependency Certificate under the Drug and Alcohol
Treatment Act (2007). 56

What is ‘Administrative Law’?
• A branch of ‘public law’ (cf ‘private law’)
• The body of common law [supplemented by
statute law] that regulates the exercise of
power and the making of decisions by:
– the executive branch of government,
– the administrative arm of government, and
– non-government bodies (‘domestic tribunals’)
57

What is ‘Administrative Law’?
• ADMINISTRATIVE LAW is ‘all’ about:
– DECISIONS … and DECISIONS … and
DECISIONS!
– DECISION MAKERS … of all different kinds
– FACTS … occurrences in space and time
– POWER … very much so!
– FAIRNESS … and, sadly, UNFAIRNESS
– RULES … naturally! ... lots of them!
58

‘Administrative Law’
… Some Important Concepts
• Judicial Review
– can only be performed by a superior court
– is concerned with scrutinising and passing
judgment on the ‘lawfulness’ of an
administrative decision
• ‘Lawfulness’ of an administrative decision
ordinarily involves BOTH
– issues of ‘fairness’, and
– issues of ‘power’ (or ‘jurisdiction’)
59

… But what is ‘the law’?
• The law is what the courts tell us it is.
• A lawyer makes an informed
‘prediction’ as to what he or she
thinks a court of competent
jurisdiction would declare to be the
law on the facts of the particular case.
• ‘The life of the law is experience, not
logic’ (Holmes J).
60

Legal Reasoning
• INDUCTION
– A rule, principle or doctrine is ‘arrived at’ (i.e.
extracted or formulated) from a number of
particular instances or cases.
• DEDUCTION
– The rule, principle or doctrine is then ‘applied’ to
the particular circumstances of the case at hand.
• LEGAL INTUITION
– ‘Situation-sense’.
61

‘Administrative Law’
… Some Other Important Concepts
• Concept of Rational
Humaneness
• Theory of ‘equal power’
• Duty to act honestly and
fairly
62

Administrative Law
THE CONCEPT
OF 'RATIONAL
HUMANENESS'
63

‘Rational Humaneness’
• John
Morley
• 1st Viscount
Morley of
Blackburn,
OM, PC (1838-
1923)
• British Liberal
statesman,
writer and
newspaper
editor.
64

THE NEED FOR
RATIONAL HUMANENESS
'A RATIONALITY
THAT IS INFORMED BY
CONSIDERATION AND
COMPASSION FOR THE
NEEDS AND DISTRESSES
OF HUMAN BEINGS'
- Gordon Hawkins (1919-2004)
Criminologist, Academic and Philosopher.
65

Underlying Philosophical Ideas
• The principle of ‘equal power’*
• cf negotiation theory and practice
– an administrator has superior power over
others
– the rules, principles and doctrines are
designed to ensure, so far as possible, that an
administrator acts as if there were a position
of equal power
* See Peter G Woolcock, Secular Humanism: Ethics Without Religion (Adelaide
SA: Humanist Society of South Australia, 1989).

Administrative Law
THE DUTY TO
ACT HONESTLY
67

DUTY TO ACT HONESTLY
THE WORD 'HONESTY'
[Latin, ‘honestas’]
MEANS ONENESS WITH
THE TRUTH, THE FACTS.
68

WHAT IS A FACT?
A FACT IS AN
OCCURRENCE
IN SPACE
AND TIME.
- John Anderson
(1893-1962)
Challis Professor of Philosophy
University of Sydney, 1927-58
'Father of Australian Realism'
69

Primary Facts and
Ultimate Questions of Facts …
•PRIMARY FACTS
•ULTIMATE QUESTIONS
OF FACT
70

Primary Facts and
An ultimate
question of fact
often involves
several questions
(‘layers’) of
primary fact …
71

Primary Facts and
By way of example …
ULTIMATE QUESTION OF
FACT: Whether a person
has a ‘severe substance
dependence’ …
THAT question involves a
number of matters …
72

Primary Facts
and Ultimate
Questions of Facts
…
'severe substance dependence', in relation to a person,
means the person:
(a) has a tolerance to a substance, and
(b) shows withdrawal symptoms when the person stops
using, or reduces the level of use of, the substance, and
(c) has lost the capacity to make decisions about his or her
substance use and personal welfare due primarily to his or
her dependence on the substance.
73

Primary Facts and
•Facts need to be
adduced to establish
all of the required
matters.
74

Primary Facts and
•The adduced facts
comprise what are
known as the
primary facts.
75

Primary Facts and
• They are the basic ‘raw’
facts that must be adduced
to establish the
ultimate question of fact
falling for decision.
76

Matters of ‘fact’
and matters of ‘opinion’ …
• In law, every ‘opinion’, to be
‘valid’, must be based upon,
and supported by, facts
relevant to the particular
question or issue.
77

• Opinions can be said to
be ‘true’ or ‘false’ … when
attention is directed, not to
the opinion itself, but to the
thing that the opinion is of.
78

•The test of a ‘true’
opinion is … to ‘see’
whether or not
something is the case.
79

Matters of fact … and opinion
To find out whether
a fact exists, you …
‘look and see’,
or observe …
or examine.
80

The Importance of Facts
• Nothing is superior to facts!
• Despite the difficulties, always look
for the 'facticity' of things ... the
'thing-in-itself'.
• Draw appropriate conclusions and
inferences from facts.
• Document all findings of relevant
fact.
82

THE FIRST AND MOST IMPORTANT
QUESTION FOR ANY DECISION-MAKER
DO I HAVE
POWER
TO ACT?
83

DUTIES AND DISCRETIONS …
1. A MUST/MAY DO X.
84

2. A MUST/MAY DO X
IF FACT Y EXISTS.
85

3. A MUST/MAY DO X
IF A IS SATISFIED
THAT FACT Y EXISTS.
86

4. A MUST/MAY DO X
PROVIDED B
CONSENTS.
87

5. A MUST/MAY DO X
OR Y.
88

6. A MUST/MAY DO X
BUT ONLY FOR
PURPOSE Y.
89

DUTIES AND DISCRETIONS
7. A MUST/MAY DO X
PROVIDED A FIRST
DOES B.
90

Failure to Comply
with Procedural Requirements …
A MUST/MAY DO
X PROVIDED A
FIRST DOES B.
… BUT WHAT IF THAT
DOESN’T HAPPEN?
91

Failure to Comply
with Procedural Requirements
The Court Will Ask …
WAS IT A PURPOSE OF THE
LEGISLATION THAT AN ACT DONE
IN BREACH OF THE LEGISLATIVE
PROVISION SHOULD BE INVALID?
See Project Blue Sky Inc v Australian Broadcasting
Authority (1998) 194 CLR 355
92

Bad Faith/Improper Purpose
• A decision-maker
must not exercise
their powers in
bad faith or for
an improper
purpose.
94

Relevant and Irrelevant Considerations
• A decision-maker:
–must not base a decision on
irrelevant or extraneous
considerations, and
–must give due and proper
consideration to all relevant
considerations.
95

• A decision-maker MUST take
into account all relevant
considerations that the
decision-maker is bound,
as opposed to entitled,
to take into account.
96

• The failure to ‘take into
consideration’ a relevant
consideration is made out only if
the decision-maker is bound to take
into account what is said to be the
relevant, or potentially
relevant, consideration.
97

However, a matter for consideration
which the decision-maker is bound to take into
account might be so insignificant
that a failure to take it into account will not
materially affected the decision.
For the most part, it is a matter for the decision-
maker to decide the weight to be assigned to
each of the relevant matters for consideration.
98

Manifest Unreasonableness
• A decision-maker
must not exercise
its powers
‘unreasonably’ …
in the sense that …
99

Manifest Unreasonableness
… no reasonable decision-
maker … acting within the
‘four corners of its jurisdiction’
… could ever have made the
decision in question.
100

Lack of Proportionality
•A decision may be so
lacking in reasonable
proportionality as 'not to
be a real exercise
of the power'.
101

Lack of Proportionality
•There must exist a
reasonable relationship
between the 'end' and the
'means' of the power.
102

Uncertainty/Lack of Finality
•A decision must be:
–‘certain’* and
–‘final’.**
* capable of being given a sensible or
ascertainable meaning
** doesn’t leave any issues unresolved 103

Fettering Discretion
•A decision-maker must
not fetter itself in
advance as to how it will
exercise its statutory
discretion.
104

Fettering Discretion
• … ‘tying oneself in
knots … fetters …’
105

Acting on a Policy
• A decision-maker:
–must examine in
detail each
matter before it
on its merits, and
…
106

Acting on a Policy
–must not
automatically or
inflexibly apply
an overall policy
without considering
the particular
circumstances of
the matter.
107

Acting Under Dictation
• A decision-maker, entrusted
with a statutory discretion:
–must exercise that power
itself and independently, and
–must not be dictated to by a
third party.
108

Dictation can occur
even if the other
person:
• does not intend to
dictate, or
• has given no
direction that the
decision maker
must do X.
Acting Under Dictation
109

The Rules of Procedural Fairness
(aka The Rules of Natural Justice)
• Hearing rule - Audi alteram partem rule
– Hear the other side
• Bias rule – Nemo judex rule
– Nemo debet esse judex in propria sua causa
• (‘No one can be a judge in their own case’)
• ‘No evidence’ (or ‘probative evidence’) rule
– Decisions must be based upon logically
probative material
110

111
Kioa v West (1985) 159 CLR 550
• 'The law has now developed to a point where it
may be accepted that there is a common law
duty to act fairly, in the sense of according
procedural fairness, in the making of
administrative decisions which affect rights,
interests and legitimate expectations,
subject only to the clear manifestation of a
contrary statutory intention.'
– Mason J.
111

‘Content’ of the Hearing Rule
• 'The critical question in most
cases is not whether the rules of
procedural fairness apply, but
what does the duty to act fairly
require in the circumstances of
the particular case?'
– See Kioa v West (1985) per Mason J.
112

•The minimum
content of the hearing
rule is … THE
GIVING OF NOTICE.
113

• The power to cause a person
to be detained for treatment
under the Act against their will
may need to be exercised
peremptorily in many cases,
… without a 'hearing' first being
afforded the affected person.
114

•In many cases, the
affected person simply
will not be in a mental
state conducive
to being 'heard'.
115

• HOWEVER,
at the very minimum,
the person will need to be
told, as clearly as possible,
and humanely, of ...
116

•the terms and effect of
the decision, and
•its implications in
practical terms.
117

•Each case will
need to be
assessed on its
own special facts.
118

‘Content’ and Application of the Hearing Rule
… Preliminary Decision Making and ITLOs
Where a decision making process involves different stages
or steps before a final decision is made:
•The requirements of procedural fairness are ordinarily
satisfied if the decision making process, viewed in its entirety,
accords procedural fairness.
•A right to be heard later will not 'cure' a lack or deficiency of
procedural fairness unless …
• the steps or stages in the decision making process, and
• the various persons and bodies involved in that process,
all form part of the one decision making process.
•It is not always sufficient to say that if the rules of procedural
fairness apply to the procedure as a whole they do not have to
be followed in any individual stage. … (cont’d) 119

… (cont’d)
•The question always remains in every case whether fairness
requires that a hearing be given at, relevantly, a
preliminary stage.
•There is no absolute rule that procedural fairness need not be
observed at one stage of a procedure if there is to be, under
the procedure, an opportunity to be heard later …
• particularly so where the relevant legislation is silent as to the
procedure to be followed at each stage.
•As a matter of statutory construction and interpretation,
legislation providing for an opportunity to be heard later is not
to be construed as necessarily excluding a right to be informed
and heard at the first or earlier stage. … (cont’d)
120

… (cont’d)
What all of this means is that
preliminary decision making
by an ITLO is … of vital legal,
as well as clinical, importance!
Hence, the need to observe
the rules of Administrative Law.121

The Bias Rule
• 'It is of fundamental importance
that justice should not only be
done, but should manifestly
and undoubtedly be seen to
be done.'
– R v Sussex Justices; Ex parte McCarthy
[1924] 1 KB 256 per Lord Hewart.
122

The Bias Rule
• The test for bias is whether the relevant
circumstances are such as would give rise
in the mind of a fair-minded and
informed member of the public, to a
reasonable apprehension or suspicion
of a lack of impartiality on the part of the
decision-maker.
– Webb v R (1994) 181 CLR 41.
123

The Bias Rule
NOTE. An accredited
medical practitioner must
not be a near relative or
the primary carer of the
dependent person.
124

125
The ‘No evidence’
(‘probative evidence’) rule …
R v Deputy Industrial Injuries
Commissioner ex p Moore
[1965] 1 QB 456 per Lord Diplock:
'The requirement that a person exercising
quasi-judicial functions must base his
decisions on evidence means no more than it
must be based upon material which tends
logically to show the existence or non-
existence of facts relevant to the issue
to be determined,
… cont’d
125

126
(‘probative evidence’) rule …
… or to show the likelihood or unlikelihood of
the occurrence of some future event the
occurrence of which would be relevant. It
means that he must not spin a coin, or
consult an astrologer, but he may take into
account any material which, as a matter of
reason, has probative value,
in the sense mentioned above.'
- R v Deputy Industrial Injuries Commissioner
ex p Moore [1965] 1 QB 456 per Lord Diplock.
126

127
(‘probative evidence’) rule
‘… [one]
must not
spin a coin,
or consult
an
astrologer
…’
- R v Dep Industrial
Injuries Comsr ex p
Moore [1965] 1 QB
456 per Lord
Diplock.
127

When called upon to make a decision …
Questions to ask oneself …
•Do I have power to act? Have I re-read the legislation?
•Have I considered whether there is a conflict of interest?
•What are the important facts … and the relevant matters for consideration?
•Have I sufficient probative material on which to make a decision?
•What policy and/or procedure should I follow?
•What are my choices?
•What impacts will each choice have?
•Which choice gives the best outcome?
•How do I feel about my decision?
•Do I need to reconsider my choices?
•Have I documented my fact-finding, inquiries, decision-making process,
decision, and reasons for the decision?
•Would my decision---and the decision-making process---stand the scrutiny of
the Court? 128

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