THE DRUG AND ALCOHOL TREATMENT ACT 2007 (NSW) AND ADMINISTRATIVE DECISION-MAKING

THE DRUG AND ALCOHOLTREATMENT 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 AustraliaFormer Senior Lecturer, Faculty of Law, University of Technology, Sydney

Lecturer, New South Wales Institute of PsychiatryConsultant - Trainer - Facilitator - Wellness Instructor and Practitioner

Some Slides Courtesy Warner Bros Pictures and Google Images. All Rights Reserved.

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THE DRUG AND ALCOHOLTREATMENT ACT 2007 (NSW)

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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.

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• An accredited medical practitioner (‘AMP’) can issue a dependency certificate …– person can be detained …

• for up to 28 days … in the first instance

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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.

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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

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• 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.

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• 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.

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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.

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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/

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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 Treatment Act 2007 (NSW)

From time to time Acts are REPRINTEDand all the amendments are incorporatedinto the principal Act … that is, the principalAct is up to the date as at the date of thereprint.

Where a principal Act is amended a SIDENOTE or END NOTE is inserted providing a history of the section.

If a principal Act has been amended afterthe last reprint then the amending Actand the principal Act must be read together.

Reading Primary Legislation

STATUTE

Structure of LegislationExamples

Chapters ………..Chapter 1Parts……………..Part 2Divisions……..… Division 4Subdivisions…….Subdivision 2Section…….….....s.20Subsection……....s.20(4)Paragraph.……....s.20(4)(b)Subparagraph…..s.20(4)(b)(i)

STATUTE


Chapters ………..Chapter 1Parts……………..Part 2Divisions……..… Division 4Subdivisions…….Subdivision 2Section…….….....s.20Subsection……....s.20(4)Paragraph.……....s.20(4)(b)Subparagraph…..s.20(4)(b)(i)

Reading Subordinate Legislation

STATUTORY INSTRUMENT


Chapters ………..Chapter 1Parts……………..Part 2Divisions……..… Division 4Subdivisions…….Subdivision 2Clause…….…......cl.20Subclause…….....cl.20(4)Paragraph.……....cl.20(4)(b)Subparagraph…..cl.20(4)(b)(i)Item………………Item 1 or Sch 1(1)

STATUTORY INSTRUMENT


Chapters ………..Chapter 1Parts……………..Part 2Divisions……..… Division 4Subdivisions…….Subdivision 2Clause…….…......cl.20Subclause…….....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 legislationthe court is being asked to determine:

- the meaning of the words in a statutory provision, and

- the circumstances in which the provisionapplies (‘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 Interpretan Act of Parliament


• 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. …



• 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.



• 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?



- 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. …



• 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.



Drug and AlcoholTreatment 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.

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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.

… cont’d

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…

(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.

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Drug and Alcohol Treatment Act 2007 (NSW)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. … …

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DRUG AND ALCOHOL TREATMENT ACT 2007 (NSW)

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.

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APPOINTMENT OFACCREDITED MEDICAL PRACTITIONERS


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

DRUG AND ALCOHOL TREATMENT ACT 2007 (NSW)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.

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ASSESSMENT FORDETENTION 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



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’d

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(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


(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, andIEJ 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 FORDETENTION 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 …

DRUG AND ALCOHOL TREATMENT ACT 2007 (NSW)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

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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]

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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

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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.

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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 detentionand 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

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…

(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’d49


…

(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.

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Other Statutory Functionsof 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’d 51

Other Statutory Functionsof 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

Other Statutory Functionsof 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

DRUG AND ALCOHOL TREATMENT ACT 2007 (NSW)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.

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Some important legal ruleswith respect to the making of

lawful administrative decisions

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These people … when exercising functionsfor 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).

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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’)

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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!

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‘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’)

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… 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).

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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’.

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‘Administrative Law’ … Some Other Important Concepts

• Concept of Rational Humaneness

• Theory of ‘equal power’

• Duty to act honestly and fairly

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Administrative Law

THE CONCEPT OF 'RATIONAL HUMANENESS'

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‘Rational Humaneness’

• John Morley

• 1st Viscount Morley of Blackburn, OM, PC (1838-1923)

• British Liberal statesman, writer and newspaper editor.

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THE NEED FORRATIONAL HUMANENESS

'A RATIONALITYTHAT IS INFORMED BY CONSIDERATION AND

COMPASSION FOR THE NEEDS AND DISTRESSES

OF HUMAN BEINGS'- Gordon Hawkins (1919-2004)

Criminologist, Academic and Philosopher.

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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

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DUTY TO ACT HONESTLY

THE WORD 'HONESTY'[Latin, ‘honestas’]

MEANS ONENESS WITH THE TRUTH, THE FACTS.

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WHAT IS A FACT?

A FACT IS AN OCCURRENCE

IN SPACEAND TIME.

- John Anderson(1893-1962)

Challis Professor of PhilosophyUniversity of Sydney, 1927-58'Father of Australian Realism'

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Primary Facts andUltimate Questions of Facts …

• PRIMARY FACTS

• ULTIMATE QUESTIONSOF FACT

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An ultimatequestion of factoften involves

several questions (‘layers’) of

primary fact …71


By way of example …

ULTIMATE QUESTION OF FACT: Whether a person

has a ‘severe substance dependence’ …

THAT question involves a number of matters …

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Primary Factsand 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.

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•Facts need to be adduced to establish

all of the required matters.

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•The adduced facts comprise what are

known as theprimary facts.

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• They are the basic ‘raw’ facts that must be adduced

to establish theultimate 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 whethera fact exists, you …

‘look and see’,or observe …or examine.

80

81

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 POWERTO 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 Complywith Procedural Requirements …

A MUST/MAY DO X PROVIDED A FIRST DOES B.

… BUT WHAT IF THAT DOESN’T HAPPEN?

91

Failure to Complywith 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

‘Abuse of Power’

93

Bad Faith/Improper Purpose

• A decision-maker must not exercise their powers in bad faith or foran 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 potentiallyrelevant, consideration.

97


However, a matter for considerationwhich the decision-maker is bound to take into

account might be so insignificantthat 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 unresolved103

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 conduciveto 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

The ‘No evidence’(‘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 Commissionerex p Moore [1965] 1 QB 456 per Lord Diplock.

126

127

The ‘No evidence’(‘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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Health & Medicine

THE DRUG AND ALCOHOL TREATMENT ACT 2007 (NSW) AND ADMINISTRATIVE DECISION-MAKING