Controlled Substances (Youth Treatment Orders) Amendment Bill

Second Reading

The Controlled Substances (Youth Treatment Orders) Amendment Bill 2018 that I introduce into parliament today gives effect to the government's commitment to provide children and young people with drug dependency problems treatment for up to 12 months and to enable parents to legally force their children to attend drug treatment programs. Measures such as those in the bill are not proposed lightly by this government. They attempt to strike the correct balance between respecting the rights and autonomy of children and our special obligation to care for and protect children.

Under the bill, assessment, treatment and detention orders are provided as a measure of last resort, and in the case of a detention order it must be for the shortest period appropriate and be reviewed by the court at regular intervals determined by the court until the child is released from detention. The best interests of the child are the paramount consideration under the bill.

The bill amends the Controlled Substances Act 1984 to permit an application to be made to the Youth Court for a series of orders in relation to a child or young person under the age of 18 years with a drug dependency. The Youth Court is the jurisdiction in this state with specialist expertise in matters relating to persons under the age of 18 years. The bill does not establish any new criminal sanctions or impose additional penalties on children and young people who are subject to detention in a training centre. It provides the court with added scope to order medical assessment and appropriate therapeutic treatment where specialist clinicians judge this is required.

The bill is focused on a very specific group of children and young people who have refused to engage in the voluntary treatment system and who are at risk and for whom there are no other appropriate or less restrictive means available. It will complement existing voluntary treatment options, not replace them. Applicants may be family members or certain other interested persons. Applications will also be able to be made by a person prosecuting the child for an offence and by officers involved in youth corrections and child protection.

This reflects the likelihood in some cases that a child may already be before the Youth Court in relation to an offence or child protection proceedings or may be in detention in a youth training centre at the time that an application for a youth treatment order is considered appropriate. Applications will also be able to be made by a medical practitioner providing treatment to a child in relation to their use of controlled drugs.

The Youth Court itself may also make orders of its own motion if there are proceedings before the court involving the child. The bill anticipates that the court would first make an assessment order requiring a child to attend at a nominated assessment service. To make an assessment order, the court would need to be satisfied that there is a reasonable likelihood that the child is habitually using one or more controlled drugs, that the child may be a danger to himself, herself or to others and that the child has refused to voluntarily seek a relevant assessment.

In addition, the court needs to be satisfied that there is no other appropriate and less restrictive means available. The assessment service will be required to report to the applicant, the child and to the court following the assessment. Following the making of an assessment order, the court may make a treatment order requiring a child to attend a nominated treatment service.

For the court to make a treatment order, the child must have been assessed, whether pursuant to an assessment order or otherwise, as being dependent on one or more controlled drugs and the court must be satisfied that the child may be a danger to himself, herself or others, that the child has refused to voluntarily seek relevant treatment, and that no other appropriate less restrictive means is available. The treatment service will be required to report to the applicant about the child and to the court following its treatment of the child.

To provide guidance to the court, assessment services and others involved in the implementation of these reforms, the bill provides that the question of dependency on controlled drugs is to be determined by reference to diagnostic criteria for a dependent syndrome published by the World Health Organization. A chief executive of the Department for Child Protection, as the department administering the Children and Young People (Safety) Act 2017, must be given notice of proceedings relating to a child in his or her custody or under his or her guardianship and an opportunity to make submissions in the proceedings.

A child may be assessed or given treatment and reports provided, despite the absence or refusal of consent by the child. If the child has failed to comply with an assessment or treatment order, the court may make a detention order authorising the detention of the child for the purpose of ensuring compliance with the relevant order and must ensure that the chief executive of the Department for Health and Wellbeing is notified of the making of the order.

An order made by the court is not binding on the child unless it is served personally on him or her. The court will only be able to make an assessment, treatment or detention order in relation to a person under the age of 18 years; however, an order for assessment or treatment will continue to have effect after the child reaches the age of 18 years subject to a contrary order by the court. An order made by the court can only operate for a maximum of 12 months.

Aside from the general regulation-making power in section 63 of the act, the bill inserts specific regulation-making powers for the purpose of youth treatment orders. Regulations will be able to be made to regulate any matter relating to assessments or treatment provided pursuant to an order to make provision in relation to apprehension and detention of children subject to a detention order and to provide for reporting by assessment services and treatment services to the minister or any other person. Regulations can also be made in respect of compliance with relevant agreements, codes and charters or accredited requirements and for the operation and oversight of facilities in which children will be detained pursuant to detention orders.

Since the bill was first introduced in the other place, the government has received feedback from a number of stakeholders in the justice and health sectors. The government has taken that feedback seriously and both proposed and agreed to a number of amendments, which have both reiterated the government's original intent and improved the bill. The government supported amendments to ensure that a child will be able to have a family member or other advocate present during proceedings and will have access to government-funded legal representation and proceedings before the court and appeals from the court's decisions.

The recent budget has set aside $1.75 million over four years for a government-funded legal representation scheme for children subject to a youth treatment order application. The bill, as amended in the other place, also contains a number of amendments, which are not supported by the government and which we do not support. The bill makes provisions of an administrative and consequential nature, including for the court proceeding in the absence of the child, for costs and for the variation or revocation of orders.

The bill imposes obligations on the Chief Executive of the Department for Health and Wellbeing to ensure that a child subject to a detention order receives appropriate care while so detained, including appropriate family visits, education and access to the Guardian for Children and Young People. The bill also creates annual reporting obligations.

Operationally, it is proposed to implement these reforms in two phases: firstly, in respect of children and young people already engaged with the youth justice system who have drug dependency problems and, subsequently, to other children in the community. The effective implementation of this legislative reform will require close consultation with and collaboration between health, child protection and justice agencies in the private and public sector. An interagency working group has been established by SA Health to consider the most effective youth treatment orders model to support parents, families and young people in accessing timely and effective treatment and to provide comprehensive advice to government, including on the budget and resourcing necessary to implement this commitment.

To determine the impact and effectiveness of the new legislation on young people, their families and health and justice systems, there will be a statutory review of the operation of the new legislation three years after its commencement. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

 

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Controlled Substances Act 1984

4—Amendment of section 4—Interpretation

This clause inserts a definition of treatment service for the purposes of new Part 7A and makes a consequential amendment.

5—Repeal of section 35

This clause deletes section 35 as a new provision on accreditation of drug assessment and treatment services is being inserted in Part 8.

6—Amendment of section 38—Undertakings

This clause is consequential to the new definition of treatment service.

7—Insertion of Part 7A

This clause inserts a new Part 7A as follows:

Part 7A—Youth treatment orders

54—Interpretation

This clause inserts definitions for proposed new Part 7A.

54A—Best interests of child are paramount consideration

The bests interests of the child are the paramount consideration in the administration, operation and enforcement of the Part.

54B—Orders that may be made under this Part

This clause empowers the Youth Court of South Australia to make an order requiring a child to attend a nominated assessment service (an assessment order) or treatment service (a treatment order). The Court may also make detention orders to ensure compliance with an assessment or treatment order. Such orders may not operate for longer than 12 months and, until the prescribed day, a detention order may only be made in relation to a child who is detained in a training centre. Detention orders must be reviewed by the Court at regular intervals determined by the Court.

54C—Application for order

This clause allows the Court to make an order of its own motion or on application by a person of a listed class.

54D—Making of orders

This clause outlines the factors that the Court must be satisfied of before making an assessment or treatment order. This clause also provides that the Court may make a detention order in certain circumstances if the child is non-compliant with an assessment or treatment order. The clause empowers the Court to request information from the Department and requires the Court, before making an order in relation to a child who is in the custody, or under the guardianship, of the Chief Executive of the administrative unit of the Public Service responsible for assisting a Minister in the administration of the Children and Young People (Safety) Act 2017, to ensure that Chief Executive has been given notice of the proceedings and has been given an opportunity to make submissions in the proceedings.

54E—Proceedings in the absence of child

Generally, in proceedings under the Part, the child will be a party to the proceedings and must be assisted or represented in the proceedings by a family member or advocate. This clause however empowers the Court to make an order under the Part in the absence of the child, or a representative of the child, in circumstances of urgency or where the child has been summoned and failed to appear or has refused to participate. In the case of an order made on the basis of urgency, the order will be an interim order and the Court must then summon the child to appear to show cause why the order should not be confirmed as a final order. The date for the hearing to which the child is summoned must be within 7 days of the date of the order. Evidence may be given by affidavit, but the deponent must make themselves available to give oral evidence if the child so requires. The Court may adjourn the hearing, for a period of usually not longer than 7 days. Another judicial officer may constitute the Court at the adjourned hearing. At the hearing, the Court may confirm or amend the order.

54F—Variation or revocation of order

This clause empowers the Court to vary or revoke an order of its own motion or on application by the persons set out at clause 54C. An application may also be made by the child with the permission of the Court, which may only be granted in the event of a substantial change in circumstances. The Court must allow all parties to be heard.

54G—Service

This clause provides that an order must be personally served on the child, and is not binding until so served. The same holds true for any confirmation of an order in amended form or any variation of an order. A copy of an order served on a child must be accompanied by a statement of legal and other rights. The clause also provides that an assessment or treatment order must be given to the assessment or treatment service nominated in the order and the applicant for the order must, on request, provide a copy of the order to a medical practitioner treating the child or a family member or advocate.

54H—Effect of order

This clause provides that, in accordance with the Part, a child may, in the absence or refusal of their consent, be assessed or be given treatment, and reports may be provided. A child to whom a treatment order applies may, in addition to being given treatment for dependency on controlled drugs, be treated (in accordance with the Consent to Medical Treatment and Palliative Care Act 1995) for any other condition or illness of a kind authorised by an examining medical practitioner. The clause also provides that treatment under the clause is limited by the regulations.

54I—Detention

A detention order does not authorise the detention of a child in a place other than an assessment service or a treatment service (unless the child is otherwise detained in a training centre).

54J—Treatment may continue after 18th birthday

This clause provides for the continuance of assessment or treatment after the person reaches 18 years of age, if the Court did not specify that an order was to expire on the person reaching 18 years of age.

54K—Costs of assessment or treatment

This clause gives the Court a discretion to make orders in relation to the costs of any assessment, treatment, or report. However the Court cannot make an order requiring payment of such costs by the child or an agency or instrumentality of the Crown. A person subject to an order for payment of costs may apply for variation or revocation of the order.

54L—Special provisions relating to detention of children

This clause imposes various duties on the Chief Executive of the Department in relation to children that are subject to a detention order and provides for monitoring by the Guardian for Children and Young People.

54M—Legal representation

This clause provides for the development of a scheme for the legal representation of children in proceedings under the Part (or appeals relating to the proceedings).

54N—Regulations

This clause provides that the regulations may regulate any matter relating to assessment, treatment, detention, and reporting. This clause does not derogate from the general regulation making power in section 63 of the Act.

54O—Reports

This clause requires certain information to be included in the annual report of the department.

54P—Review of Part

This clause provides for a review and report to be completed after the third, but before the fourth, anniversary of the commencement of the clause. A copy of the report must be laid before both Houses of Parliament within six sitting days.

8—Insertion of section 56A

This clause inserts a section (as a replacement for the current section 35 which relates to simple possession offences) allowing for accreditation by the Minister of drug assessment services or drug treatment services.

9—Amendment of section 63—Regulations

This clause makes consequential changes to the regulation making power.

Schedule 1—Transitional provision

The Schedule preserves accreditations in force under section 35 of the Controlled Substances Act 1984 immediately before the commencement of clause 8.

Debate adjourned on motion of Mr Picton.