2004


THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY







INTOXICATED PERSONS (CARE AND PROTECTION)
AMENDMENT BILL 2004







EXPLANATORY STATEMENT









Circulated by authority of

Simon Corbell MLA
Minister for Health

The purpose of the Intoxicated Persons (Care and Protection) Amendment Bill 2004 is to expand the search and seizure powers of carers at a licensed sobering-up facility. The impetus to implement expanded search and seizure powers has arisen as a result of the probability of people having dangerous or illicit goods in their possession on presentation at such a facility, and the subsequent possible increased risk of harm to the person, staff, other clients and/or the building. The previous sobering-up facility was closed down in 1996 following the death of a client. Following a Coronial enquiry in to the death of the client at the previous facility, the Coroner recommended that ACT Health give consideration to whether searches should be conducted, either by police or sobering-up staff, prior to the intoxicated person being taken into care by a sobering-up place.

Prior to these amendments a search could only take place “where the carer believes on reasonable grounds that the intoxicated person does not object to the search”. In addition, goods could only be stored for safekeeping “where the carer believes on reasonable grounds that the intoxicated person does not object and it is necessary for the protection of the intoxicated person or other persons at the licensed place or the security of those articles”. Given the intoxicated condition of a client presenting at a sobering-up service it is unlikely that any person working in the facility would always be able to form such a ‘reasonable belief’. Without clear consent the search could be considered unlawful and could constitute a civil battery with both civil and criminal consequences.

The amendments will make an ‘frisk search’ of the intoxicated person by carers as currently outlined in S6C (2) of the amendment, and the safe storage of their possessions and return upon discharge conditions of entry to the facility. The person will not have access to their possessions during their stay. If the person declines either of these conditions of entry and/or are found to be in possession of prohibited substances they will be refused entry to the facility.

Recurrent funding of $311,000 is available for the sobering-up facility in the 2004-05 budget.

Clause 1 – Name of Act – states that the title of the Act is the Intoxicated Persons (Care and Protection) Amendment Act 2004

Clause 2 – Commencement – states that the amendments are to commence on the day after the Intoxicated Persons (Care and Protection) Amendment Act 2004 is notified.

Clause 3 – Legislation Amended – provides that this Act amends the Intoxicated Persons (Care and Protection) Act 1994

Clause 4 – Section 3 (1), new definition of prohibited substance – this adds a definition of a prohibited substance as found in part 3 (1) of the Drugs of Dependence Act 1989.
Clause 5 – Sections 6A to 8 – this removes the current provisions under these sections and replaces them with the following:

S6A – ‘Admission to licensed place’ - this replaces S6A ‘Power of carer to search intoxicated person’ and places this at 6C. This section now provides the conditions that must be met for entry to a licensed placed. Namely, that the intoxicated person must agree to a search as outlined under S6C, must not be in possession of a prohibited substance, and must agree to give all possessions to a carer for safekeeping.

S6B – ‘Safekeeping of possessions’- this provision amends the title of the section from ‘Safekeeping of articles in possession’ to ‘Safekeeping of possessions’. This removes the requirement that the carer form a reasonable belief that the intoxicated person would not object or that it is necessary for the protection of the person or the safekeeping of those articles before taking the intoxicated person’s possessions. The provision now requires that the carer secure the clothing and other possessions of an intoxicated person who is admitted to a licensed place.

S6C – ‘Power of carer to search intoxicated person’ - this provision removes the section ‘List of articles’ and replaces it with ‘Power of carer to search intoxicated person’. It will no longer be a requirement for the carer to list and sign for all of the intoxicated person’s possessions. The new provision amends the original S6A search to replace an ‘ordinary search’ with a ‘frisk search’ and removes the requirement that carer form a reasonable belief that the person does not object. This provision also allows for the person being searched to request that a person of the same gender conduct the search and incorporates the search of transgender/intersex persons. A link to the definitions of transgender/intersex persons is provided.

S8 – ‘Contacting other people’ – the title of this section ‘Contacting other persons’ has been removed and replaces with ‘Contacting other people’. This clause amends the section to require the licensee ensure that the client has adequate opportunity to contact a responsible or other appropriate person when they leave and is in line with the amendment at S7.