Wednesday, 11 September 2024

Drugs, Poisons and Controlled Substances Amendment (Pill Testing) Bill 2024

Statement of compatibility

Danny PEARSON (Essendon – Minister for Transport Infrastructure, Minister for the Suburban Rail Loop, Assistant Treasurer, Minister for WorkSafe and the TAC) (11:10): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Drugs, Poisons and Controlled Substances Amendment (Pill Testing) Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Drugs, Poisons and Controlled Substances Amendment (Pill Testing) Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Drugs, Poisons and Controlled Substances Act 1981 (the Act) to:

• provide for drug-checking services; and

• permit supply of naloxone from automatic dispensation units, for the purposes of treating opioid overdose.

The Bill will enable drug-checking services to be established, including at a fixed site in metropolitan Melbourne, and with a mobile component providing services at music festivals. The Bill will also enable automatic dispensation of naloxone in areas with high levels of opioid use and related harms.

To implement this, the Bill introduces provisions for the licensing and regulation of drug-checking services, to ensure oversight of the services (Part II, Division 4 of the Act). The drug-checking permits will also be subject to a broad range of regulatory requirements, including permit conditions, inspections and record-keeping obligations (Part II, Division 1 of the Bill).

The Bill will also provide protections against liability in respect of the supply and possession of non-traffickable quantities of drugs of dependence at the drug-checking service. For example, permit holders and authorised drug-checking workers will be granted immunity from criminal and civil liability arising from the operation of the services, and clients of drug-checking services will be granted immunity from criminal liability for the possession and supply of a non-traffickable quantity of a drug of dependence at the drug-checking place.

In order to allow the automatic dispensation of naloxone, the Bill introduces an exception to the prohibition under section 30 of the Act, which will permit naloxone (or other Schedule 2 or 3 poisons for the treatment of opioid overdose) to be supplied by automatic machines.

The Bill, which is part of a broader suite of harm reduction initiatives to address drug harm in Victoria, aims to reduce the number of preventable deaths (and other harms) associated with the use of drugs obtained from unregulated drug markets. This specifically aims to address rising drug harms in Victoria, which has been driven by the increasing use and potency of synthetic drugs, and the emergence of potent novel psychoactive substances. This has led to an increase in hospital emergency department presentations and deaths for harms involving novel drugs. The 2023–24 summer festival period also saw a spike in drug-related harms in recreational settings.

The Bill also aims to reduce opioid overdose-related morbidity and mortality by enabling naloxone to be more easily accessed at any time of day to help people in a life-or-death emergency. This builds on existing needle and syringe programs and harm reduction services available at the existing Medically Supervised Injecting Centre. In particular, the Bill aims to:

• reduce drug overdose-related ambulance attendances and emergency department presentations;

• reduce the number of deaths from drug overdoses;

• provide information and advice regarding the use of poisons, controlled substances and drugs of dependence and access to health and other assistance for clients of the drug-checking services, including drug treatment, health care and counselling; and

• improve drug surveillance by obtaining information about which illicit drugs are circulating in Victoria, particularly novel substances.

Human rights issues

The following rights are relevant to the Bill:

• right to life (section 9);

• right to freedom from forced medical treatment (section 10(c));

• right to privacy (section 13(a));

• rights of children (section 17(2));

• right to property (section 20);

• right to the presumption of innocence (section 25(1)); and

• right not to be punished more than once (section 26).

Drug-checking services and the automatic dispensation of naloxone

Right to life

Section 9 of the Charter provides that every person has the right to life and to not be arbitrarily deprived of life. The right to life is one of the most fundamental of all human rights. It is concerned with both the protection and preservation of life.

The right to life has not been examined by the courts in any detail in Victoria. Under international human rights law, the right to life includes an obligation on the state to refrain from conduct that results in the arbitrary deprivation of life, as well as a positive duty to introduce appropriate safeguards to minimise the risk of loss of life. It is therefore anticipated that section 9 also imposes some positive obligations on the State to prevent arbitrary deprivation of life. An ‘arbitrary’ deprivation of life may be described as one that is unreasonable or disproportionate.

The Bill establishes a legislative framework for the operation of drug-checking services in Victoria and the automatic dispensation of naloxone. The object of the scheme established under the Bill is not to encourage or condone the use of prohibited substances but rather to reduce harm arising from their use. In this manner, the harm reduction object of the Bill can be characterised as promoting the right to life.

First, the Bill aims to reduce the number of deaths caused by drug overdose. In the past 10 years, harm from illicit drug consumption in Victoria has increased significantly as high potency synthetic and novel drugs have permeated the drug market, interacting in unpredictable ways with the supply and use of ‘traditional’ illicit drugs. This has led to an increase in hospital emergency department presentations for drug-related deaths and harms.

The Bill responds to the escalating harm from consumption of illicit drugs by establishing a legislative framework for the operation of drug-checking services and automatic naloxone dispensing in Victoria. A drug-checking service involves analysis of any substances provided for testing, enabling the provision of information about the composition of any substance that is tested (including the presence of poisons), the possible consequences of using those substances, and how to reduce the harm caused by substance use. The Bill also requires services to provide a drug disposal service at a drug-checking place. An evaluation of the fixed-site drug checking pilot in the ACT completed in 2023 found that up to 10% of substances tested by drug-checking services were discarded at the service and over 32% of clients reported they ‘definitely will not use’ the substance when a substance was found not to contain the substance expected, an additional substance was found or the result was inconclusive. Accordingly, the scheme aims to reduce the number of injuries and deaths caused by drugs.

Further, increased testing of illicit substances supports drug surveillance and monitoring efforts, which facilitates better public health messaging regarding the risks of using drugs obtained from the unregulated illicit drug market and enables health professionals to better respond to persons experiencing adverse effects of drug use.

The automatic dispensation of naloxone, which rapidly reverses the effects of an opioid overdose or adverse reaction, will also reduce opioid overdose-related morbidity and mortality.

Secondly, the Bill promotes the right to life of clients by providing information and advice regarding access to health services and other assistance. Drug-checking is a public health service whereby a person is offered a tailored, brief intervention about their drug use. The Bill is informed by a large body of evidence that shows that access to drug checking services promotes harm reduction behaviour by offering those who use drugs personalised advice that cannot be received elsewhere.

Thirdly, the Bill aims to reduce the risks to community members arising from the use of illicit drugs. By providing a drug-checking service that identifies the presence of any poisons or other harmful ingredients, offering information about possible consequences of use, and a drug disposal service, the scheme protects and promotes the health and safety of others who may also be at risk from those who consume synthetic drugs.

Accordingly, in responding to the escalating harm from the consumption of illicit drugs, the scheme protects the lives of those affected, and minimises harm caused, by drug use. In so doing, it promotes and protects the right to life in a number of respects.

Finally, given the inherent dangers of the illicit use of prohibited substances and drugs of dependence, the scheme’s implementation does have the capacity to also engage the right in relation to enlivening risks to life. In this regard, the scheme is subject to strict regulatory controls that are proportionate to the risks to human life posed by the scheme. For example:

• At all times at which drug-checking services are provided, the Bill requires a drug-checking director to oversee the provision of the service (clause 8, new section 20AAB);

• Drug-checking permits will be subject to various conditions, including mandatory requirements to destroy substances and record-keeping obligations (new section 20AAB), and will be subject to inspection by authorised officers (new section 42(1)(ae) and (af)); and

• The Secretary’s existing permit suspension and cancellation powers will be expanded in respect of a drug-checking permit where a drug-checking director engaged in relation to that permit proves not to be a fit and proper person (clause 9, new subsection 22C(1)(ba)); and

• Permit holders and their authorised drug-checking workers will be subject to significant regulatory controls relating to the storage and destruction of poisons, and record-keeping under Division 2 of Part 7, Part 13 and Part 14 of the Drugs, Poisons and Controlled Substances Regulations 2017 (the Regulations) to prevent diversion and misuse of substances with high illicit demand.

Accordingly, I conclude the Bill is compatible with the right to life.

The automatic dispensation of naloxone

The naloxone dispensation scheme will build on the existing regulatory framework for the supply of Schedule 3 poisons and Victoria’s take-home naloxone program in the Regulations. Under this framework, a person is able to access naloxone from an approved naloxone provider and their approved naloxone workers. This program is accessible to people who use drugs and others (e.g., family members or friends who may witness an opioid overdose or adverse reaction). Under the existing program guidelines, a condition of supply is that an approved naloxone worker conduct an assessment of therapeutic need and provide education about the purpose and use of naloxone. Under the scheme provided by the Bill, accessibility is proposed to be enhanced by providing access via automatic dispensing units.

The supply of naloxone enables the administration of a Schedule 3 poison to temporarily reverse the effects of an opioid overdose or adverse reaction. If a person has overdosed on opioids, they may be unconscious, unable to speak and in many cases, unable to administer the naloxone themselves. Given this, in most cases, the scheme will enable carers, friends, and family members of people who use drugs to administer the substance.

Rights to freedom from forced medical treatment and privacy

Section 10(c) of the Charter provides, relevantly, that a person has the right not to be subjected to medical treatment without their full, free and informed consent. This right is concerned with the physical and mental integrity of individuals, and their inherent dignity as human beings. Section 13(a) of the Charter protects a person’s right not to have their privacy unlawfully or arbitrarily interfered with. This right extends to privacy in the sense of bodily integrity, which protects against interference with a person’s physical self by others without their consent. It recognises the freedom of individuals to choose whether or not they receive medical treatment.

Unless consent has been obtained prior to use of opioids, the naloxone dispensed under this scheme may be administered without a person’s full, free and informed consent. To the extent that the Bill facilitates the availability of a Schedule 3 poison, it may be said to create conditions which enliven additional interferences with a person’s rights under sections 10(c) and 13(a). However, the Bill does not alter the existing law in relation to consent, capacity and medical treatment – and any treatment administered without consent will need to comply with doctrines of medical necessity, which is a circumstance of forced treatment considered compatible with the Charter. Further, given that this medical treatment is a life-saving intervention, and can be administered intranasally, such that it is minimally invasive, I consider any consequent interference with these rights to be reasonable, necessary and proportionate in the circumstances.

Amendments relevant to children

Rights of children

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child.

The Bill will enable the supply of naloxone from automatic dispensing units in public places with high levels of opioid use. To prevent children from accessing poisons, there will be safeguards for access to the scheme. Protective measures together with the installation of these units targeted areas of high opioid use, prevent adverse access by and exposure to children while removing barriers to vulnerable people who use drugs to potentially life-saving medical treatment.

Further, the drug-checking scheme introduced by the Bill does not include provisions preventing children from accessing the service (in contrast to comparative restrictions upon children accessing the services of medically supervised injection centres). Given the particular vulnerabilities of children, their unrestricted access to drug-checking services will engage this right. However, while prohibitions on children accessing supervised injecting centres were based on the availability of treatment options specifically for young persons who are injecting drugs, there are no such alternatives in respect of drug-checking that are available to minors. As such, a denial of access would deny children the protective benefits of this harm minimisation scheme, thus exposing children to increased harm from illicit substances as compared to adults. Further, as the service necessarily operates on the basis of client anonymity, it will not be possible to confirm proof of age. As such, I consider that the scheme provides protection to children, without discrimination, as is in their best interests.

Inspection powers

Clause 11 of the Bill inserts new subsection 42(1)(ae) and (af) that enables authorised officers to enter a drug-checking place for the purpose of conducting inspections. Those powers of inspection include: examining any room or part of such premises and any goods or records therein; taking an account of any poisons or controlled substances therein; and obtaining a sample of any poison or controlled substance in or on the premises.

Right to privacy

Section 13 of the Charter provides that a person has the right to not have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

The determination of whether certain activities amount to an interference with privacy depends on whether the person has ‘a reasonable expectation of privacy’ in all the circumstances. To the extent that drug-checking places are places of work, which are accessible to the public, powers of entry into, and inspection of, these places are unlikely to constitute an interference with privacy.

However, where a client is present at the time of entry, such powers have the potential to interfere with a person’s privacy. This is because the right to privacy protects against the surveillance of an individual’s private life by the state and this protection may extend to activities that take place in public places. The expectation of privacy would be heightened in light of the confidential and anonymous nature of the service. The expectation of privacy would, however, be diminished by the existence of a regulated matter, where powers are conferred for the important purpose of ascertaining compliance with the Act, Regulations, and permit conditions, in the context of activities that would otherwise be criminal conduct. Further, given that breaches of permit conditions (eg, failure to appropriately dispose of substances) have the potential to lead to significant and irreversible harm or death to members of the community, I consider that any such interference is lawful and not arbitrary and therefore compatible with the right to privacy.

Additionally, clause 8 of the Bill inserts new section 20AAB, which requires the permit holder to keep records of prescribed matters in accordance with the regulations and provide the Secretary with access to, or copies of, those records in accordance with the Regulations. While this provision may engage the privacy right, any access, collection, use and/or disclosure of any data will be authorised by the Act, subject to existing protections under the health privacy principles in the Health Records Act 2001 and the information privacy principles in the Privacy and Data Protection Act 2014. Therefore, any interference with privacy will be permitted by laws that are precise and appropriately circumscribed.

Thus, whilst the right to privacy may be engaged, it is not limited by the Bill because the new provisions are neither unlawful nor arbitrary. Accordingly, I consider that the provisions are compatible with the right to privacy in section 13(a) of the Charter.

Immunities relating to criminal and civil liability

The Bill introduces a number of immunities from criminal and civil liability in relation to operation of drug-checking services.

Rights to be presumed innocent (s 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

While the Bill does not create any new offences, it creates new exemptions to a range of drug offences under the Act:

• Clause 10 inserts new section 22CD of the Act, which provides an exemption from criminal liability to clients of a drug-checking service for the supply, receipt or possession of a less than traffickable quantity of a drug of dependence at the drug-checking place;

• New section 22CF provide exemptions from criminal liability to permit holders and their authorised drug-checking workers.

• New section 22CG provides a limited exemption for an offence constituted by deemed possession of a substance under section 5 of the Act to permit holders, their authorised workers, and the owner or occupier of the land or premises on which the possession occurs.

Pursuant to section 104 of the Act, the burden of proving any of the exemptions will lie upon the person seeking to avail themselves thereof. The standard of proof is on the balance of probabilities. Ordinarily, the presumption of innocence requires that the prosecution prove all elements of an offence beyond reasonable doubt. The creation of an exemption that imposes a burden on the accused to establish the exemption to a legal standard amounts to a limit upon the right to be presumed innocent.

However, I consider that it is reasonable and justifiable to create exemptions with a reverse burden of proof in these particular circumstances. While the courts have emphasised the importance of the presumption of innocence, they have also recognised a special class of offences which prohibit the doing of an act, save in specified circumstances or by persons with specified qualifications or with the permission of specified authorities (see R v Lambert [2001] 3 WLR 206 [35]). The exemptions created by the Bill are to what otherwise would be criminal conduct. Accordingly, this scheme is one such special class of case. Further, section 104 does not require an accused to disprove elements of the offence; the burden of proving those elements remain on the prosecution. Rather, these exemptions are limited to special and narrow circumstances (eg, permit holders and authorised drug-checking workers carrying out activities authorised by the permit under section 20AA) and concern matters that are within the knowledge of the clients and authorised drug-checking workers of the service. As such, the reversal of the burden of proving any exemption will appropriately lie with the accused.

Right to property (s 20)

Clause 10 inserts new section 22CH of the Act, which provides immunity from any civil liability for anything done or omitted to be done in good faith under a drug-checking permit to such persons as the drug-checking service permit holder, the drug-checking director, authorised drug-checking workers, and an owner or occupier of a drug-checking place or the land or premises on which a drug-checking place is located.

Insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, these provisions may engage the right. However, even if these immunity provisions could be considered to deprive a person of property, any such deprivation will be ‘in accordance with law’ and will therefore not limit the Charter right to property. These provisions are drafted in clear and precise terms. In addition, any deprivation of a cause of action is reasonably necessary to achieve the important objective of ensuring that the drug-checking service can effectively perform its functions without exposing permit holders or authorised drug-checking workers to the threat of significant personal repercussions. As such, there are no less restrictive means of achieving the Bill’s objectives of protecting the community against preventable deaths. Accordingly, the relevant immunity and protections are, in my view, appropriately granted. They are also limited in scope to good faith actions or omissions.

Licence suspension or cancellation for persons not fit and proper

Clause 9 of the Bill authorises the suspension and cancellation of a drug-checking permit where the permit holder or its drug-checking director are found not to be a fit and proper person.

Right not to be tried or punished more than once

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy.

The suspension and cancellation of a permit where a permit holder or their appointed director is found not to be a fit and proper person may be considered to be a double punishment if the finding is based on, or informed by, past charges or convictions. However, penalties and sanctions imposed by a regulator do not usually constitute a form of ‘punishment’ for the purposes of this right as they are not considered to be punitive.

Rather, this provision is largely protective in nature, aimed at ensuring the integrity of the permit scheme. As drug-checking permit holders and certain authorised drug-checking workers are authorised under clause 8 to receive, possess, supply, destroy, transport or deliver controlled and prohibited substances, the misuse of which has potentially grave consequences, it is important that operation of the drug-checking centres is responsibly managed and subject to proper oversight.

Accordingly, I consider the powers to suspend or cancel permits in relation to the fitness and propriety of the permit holder or their appointed director to be proportionate to the legitimate objects of the scheme given the central role of drug-checking directors to the scheme and the operation of the service.

The Hon. Mary-Anne Thomas MP

Minister for Health

Second reading

Danny PEARSON (Essendon – Minister for Transport Infrastructure, Minister for the Suburban Rail Loop, Assistant Treasurer, Minister for WorkSafe and the TAC) (11:10): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Introduction

This Government proudly takes a health-led, harm minimisation approach to addressing the impacts of drug use.

That’s why today we are introducing legislation to support a drug-checking trial: to provide Victorians from all parts of the community with the health information they need to reduce drug harms and save lives.

Speaker, the time for sticking our heads in the sand is over.

In order to deliver effective policy solutions to reduce drug harms, we must first acknowledge that drug related harms are increasing – and the outdated approach of just saying no, just isn’t working.

Although population-level drug consumption has remained relatively stable in Victoria over the past two decades, harm has increased significantly, especially in the past 10 years.

This is most likely due to both a shift in drug usage towards novel synthetic drugs, of which more than 1,100 new drugs have been identified in the past decade, and increased potency of long-standing synthetics such as methamphetamine (ice).

Tragically, a total of 549 Victorians died from drug overdose in 2022, our state’s highest ever annual figure. Of those, 46 involved novel synthetic drugs. Fatal overdose has grown 61% since 2010, representing 5,955 Victorian lives lost.

Over 75% of these deaths were accidental.

Similar trends have been seen elsewhere. In Canada, for example, the fatal opioid overdose rate has doubled in five years. In the USA, overdose deaths increased by nearly 60% in the three years from 2019 to 2022.

Victorian coroners have made recommendations after ten separate inquests that government urgently implements a drug-checking service to reduce the number of preventable deaths (and other lesser harms) associated with the use of drugs obtained from unregulated drug markets.

Speaker, I am sure members of this place recall that the 2023–24 Australian summer music festival season saw a spike in drug harms in recreational settings.

Nine people became critically unwell at the Hardmission Festival in January 2024. All experienced life-threatening hyperthermia after using high potency MDMA in a hot, humid environment.

A further three people experienced acute drug-related harm in Victoria over the March Labour Day weekend, including, tragically, one death related to suspected overdose.

While novel synthetic drugs are currently at a low prevalence in Australia, they are starting to permeate the local market, interacting in unpredictable ways with the supply and use of established illicit drugs.

In NSW, three people had to be resuscitated after using a tablet sold as MDMA which contained a synthetic opioid up to 500 times more potent than heroin (nitazene).

Now, more than ever, is the time for drug-checking.

It’s certainly not the time to repeat the same rigid and failed approaches that do not resonate – particularly with young recreational users.

Just saying no hasn’t worked and never will.

Instead, it is time that we provide people with the opportunity to properly understand the risks of drug use and the importance of harm minimisation approaches.

That’s what drug checking – or pill testing – is all about.

Drug-checking is practical, realistic and proven.

It sends a clear message: drug use is dangerous but information is powerful.

Our goal is to encourage people to make safer choices – supporting them to get their substances checked and provide life-saving harm reduction education.

Drug-checking involves the chemical analysis of illicit or unknown substances to inform individuals about the contents of what they plan to consume.

When a client enters a drug-checking area, they first meet with a trained harm reduction worker who walks them through the process.

Clients are informed that no drug is ever safe to use, and drug use always carries risk.

Then a qualified analytical chemist takes a small sample of their substance – usually a tiny scraping of a pill or a bit of powder – for analysis.

Following the analysis, the next stage involves the chemist communicating the analytical findings to the health professional or harm reduction worker, who then shares these findings with the client in an accessible way that is easy to understand.

A client may receive information such as: the chemical compounds detected including information about its purity if available; secondly, the known effects of each compound thirdly, if multiple compounds are detected, how they may interact; and finally, if any unknown or inconclusive compounds have been detected.

In short, the client may learn what’s in the drug and what it may do to their body.

For example, a test might reveal the presence of fentanyl, a synthetic opioid that is approximately 50 times more potent than heroin, or nitazenes which have been reported to be up to 500 times more potent than heroin.

Both these substances are frequently linked to overdose deaths.

This is potentially life-saving information for anyone who intends to use an illicit substance.

The discussion will also include advice on how to minimise harm should the person still decide to use that substance.

This advice could include information on the effects of different dosages; interactions with other substances the person has already ingested or intends to ingest (e.g. alcohol, prescription medication); and advising the person about the importance of sleep, hydration and adequate nutrition, as well as managing environmental conditions such as the weather.

We know drug use carries inherent dangers, and no drug use can be considered truly safe.

That’s the first thing a client is told at a drug checking site.

This Government does not condone the use of illegal substances.

The laws in this state are unequivocal – manufacturing, possessing, distributing, and selling illicit drugs are illegal activities, and those laws will continue to be enforced.

But whether we like it or not, people use drugs.

According to the most recent data from the National Drug Strategy Household Survey 2022–2023, approximately 1 in 5 Australians (20%) reported that they had used illicit drugs at some point in their lives. Use of illicit drugs remains highest among young people, with approximately 1 in 2 (49%) reporting that they had used an illicit drug at some point. With practical tools like a drug checking trial, this Government is acting to reduce risks, minimise harms – and save lives.

We know drug checking works because the jurisdictions that have come before us have proven it.

Compelling evidence from both Australia and overseas highlights the life-saving impact of drug-checking.

Drug-checking has been implemented in Switzerland since the 1990s, and over the past decade, there has been a 250% increase in the number of samples tested.

In the UK’s first onsite drug-checking service, 21% of individuals chose to dispose of their substances after receiving the test results. Additionally, other participants opted to modify their drug use by either taking it over a longer period or reducing the amount consumed.

In 2022, findings from drug-checking clinics in New Zealand revealed that 29% of individuals decided to take a lower dose than initially planned, and 27% chose to avoid mixing drugs with alcohol or other substances.

An April 2023 evaluation of the CanTEST service – which provides drug-checking and health interventions in the ACT – revealed that only 53% of substances tested matched the expected drug, with an additional 2% containing both the expected drug and another substance.

The CanTEST pilot in the ACT showed that 32% of people who discovered their substance was not what they expected – whether it contained an additional drug or a different drug, or the result was inconclusive – decided not to use it. The pilot also identified dangerous substances like a synthetic opioid 200 times more potent than morphine, leading to life-saving decisions to discard these drugs.

But the benefits of the service go beyond the individual by prompting public health alerts and informing the community about the risks associated with these substances.

The evidence tells us that drug checking does not increase drug use. A comparison of countries with and without drug-checking services indicated no evidence of an increase in rates of drug use or mortality in countries with these services.

All clients of the licenced drug-checking service – staffed by experts – are told that the safest thing to do is to not take drugs.

But for those who are going to take drugs anyway, drug checking is a simple, stigma-free way to give them information that might make them think twice – and might save their life.

Naloxone dispensing machines

The Bill will introduce 24/7 access to intranasal naloxone through secure automated dispensing machines.

Naloxone is a life-saving medication that can reverse an overdose from opioids – including heroin, fentanyl, and prescription opioid medications – when given in time.

By placing naloxone dispensing machines in areas with high rates of drug harms, we make this essential medication readily accessible to those who need it most. This easy access is critical in emergencies where every second counts. The ability to respond swiftly can mean the difference between life and death.

Naloxone quickly reverses an overdose by blocking the effects of opioids. It can restore normal breathing within 2 to 3 minutes in a person whose breath has slowed, or even stopped, as a result of opioid overdose.

This Government is committed to providing naloxone dispensing machines across Victoria as part of its Statewide Action Plan to reduce opioid harms.

The broader public health impact of naloxone dispensing machines is undeniable. Studies have shown that increasing the availability of naloxone can significantly reduce the mortality rate from opioid overdoses.

Moreover, these units offer anonymous access, reducing the stigma that often deters individuals from seeking help. This ensures that anyone at risk can obtain naloxone without fear of judgment, which is vital for encouraging broader use and ultimately safeguarding our community.

Broader reform context

The drug checking implementation trial will take place for a period of up to 18 months.

It is intended the new legislation will commence on 6 November 2024 to ensure the process for commissioning a drug-checking service, including the important checks and balances I will outline shortly, can be undertaken during the summer festival season in 2024.

The trial will test and evaluate a mixed service model, including a mobile service that attends up to 10 music festivals and events during the trial period. It is estimated that this service would commence at the start of the summer 2024–2025 season.

The trial will also include a fixed site service in metropolitan Melbourne, to be delivered in partnership with a community health provider operating with targeted hours. It is proposed that this service would commence from mid-2025.

Overview of the Bill

It is the government’s aim to:

• reduce the level of harm caused by using illicit substances that are, or that contain, prohibited drugs, poisons, restricted substances, drugs of addiction or any other substances;

• improve public health outcomes in Victoria related to harm caused by illicit substance use;

• reduce pressure on frontline services from drug poisonings and other acute episodes;

• provide surveillance and improve information access and effective dissemination regarding illicit drugs circulating within Victoria, including monitoring the presence and prevalence of novel substances;

• provide that users, and potential users, of those substances:

• receive information about the composition of tested substances and associated risks for the purpose of reducing the potential harm caused by using them; and

• receive tailored harm reduction advice and education for the purpose of reducing the potential harm caused by using those substances tested and any other substances used by the person either concurrently or at other times;

• provide a safe way to dispose of substances that are, or that contain, poisons, controlled substances or drugs of dependence.

• divert users of illicit drugs who may be at risk of entering the justice system by increasing access to health information and referral to health and social services; and

• reduce opioid overdose-related morbidity and mortality by removing barriers to accessing naloxone.

Purpose

The primary purpose of this Bill is to amend the Drugs Poisons and Controlled Substances Act 1981 to establish a legislative framework for the operation of drug-checking services in Victoria and to enable automated machines to supply naloxone or other Schedule 2 or Schedule 3 poisons for the treatment of opioid overdose. The inclusion of other Schedule 2 or Schedule 3 poisons allows us to consider the provision of other lifesaving medication in the future.

The Bill provides for the establishment of both mobile drug-checking sites, which can operate at events like music festivals, and a fixed location service.

The Bill relies on the existing framework under Part II, Division 4 of the Drugs Poisons and Controlled Substances Act 1981 and the Drugs, Poisons and Controlled Substances Regulations 2017 which was established to control risks associated with diversion and misuse of Schedule 8 poisons (‘Controlled Substances’ – e.g. pharmaceutical opioids) and Schedule 9 poisons (‘Prohibited Substances’ – i.e. illicit drugs) with high illicit demand. These substances include fentanyl, oxycodone, benzodiazepines, ketamine, morphine, THC, DMT, MDMA, psilocybin, cocaine, heroin and more.

As of August 2024, there are over 2,500 entities authorised under this framework, including those that analyse and handle illicit drugs, such as the Victoria Police Forensic Services site, the Victorian Institute of Forensic Medicine (VIFM) and University of Melbourne’s Bio21 Institute (which has tested illicit substances retrieved from festivals).

Licensing requirements

The detailed provisions of this Bill enhance this rigorous framework to acknowledge the unique aspects of drug-checking services to ensure that the drug-checking service will operate with the highest standards of integrity and will allow individuals to have the composition of their substances analysed in a safe and confidential manner.

The Secretary of the Department of Health will only issue a ‘drug-checking permit’ to an applicant who is a fit and proper person to operate a drug-checking service.

While relying on the framework of Part II, Division 4 of the Act outlined above, the Bill goes further to include necessary legislative amendments to address the nature and regulatory requirements for drug-checking services. For example, the Bill includes an additional criterion for regulations to prescribe, among other things, considerations for assessing whether an applicant for a drug-checking permit is a fit and proper person to be issued with a drug-checking permit.

What a drug-checking permit can authorise

The Bill provides what a drug-checking permit authorises a permit-holder and authorised drug-checking staff to do. This includes to receive substances from clients for analysis, while allowing the supply back to the client of any part not required for the analysis.

The permit also authorises the provision to that client:

• information about the composition of the substance they provided;

• information and advice regarding the use of substances, including information and advice about how to reduce the harm caused by doing so; and

• information and advice regarding access to health services and other assistance.

The permit will also enable the destruction of the substance and its supply to another holder of a permit under the Act for further analysis to derive information about its composition.

Conditions of drug-checking permit

Section 20AAB provides that certain specific conditions apply to a drug-checking permit, including record keeping requirements; a requirement that required records are provided to the Secretary; and that at all times at which a drug-checking service is being provided, a person engaged by the permit holder who is meets specified requirements will oversee the provision of the service and perform any other duties, and there be an someone authorised to receive substances for the purposes of disposal.

Furthermore, the Secretary must include in the permit a condition specifying when the permit holder is required to destroy a substance in the course of providing drug-checking services, or another activity, under the permit.

Suspension or cancellation of a drug-checking permit

The Bill expands the inspection powers of authorised officers under section 42(1) of the Act to permit them to enter and inspect a drug-checking place.

The Bill allows the Secretary to suspend or cancel a licence, permit or warrant in certain circumstances. It is proposed that this existing provision be utilised in the regulation of drug-checking permits. Currently, the circumstances in which the Secretary may suspend or cancel a licence, permit or warrant for breaches of the terms, conditions, limitations or restrictions of the permit; or if the permit holder proves not to be a fit and proper person or has been convicted of an offence against this Act or the regulations.

The Bill adds to the Secretary’s power of suspension or cancellation where a drug-checking director appointed by a holder of a drug-checking permit proves not to be a fit and proper person.

Definitions and Scope

The Bill includes essential definitions that clarify the scope and operation of the drug-checking service, to ensure a safe environment for both clients and staff.

The Bill amends the principal Act by adding new definitions relevant to the drug-checking service, including special drug-checking worker who is a person with prescribed qualifications engaged by the permit holder to receive, possess and supply substances and provide a drug-checking service (likely be trained analytical chemists); and general drug-checking worker who is a person engaged by the permit holder to provide harm reduction information (likely to be health and harm reduction practitioners or peer workers).

The Bill inserts a definition of drug-checking service (section 4C) which means the service of analysing a substance for the purpose of obtaining information about the composition of the substance (including information about the presence of poisons, controlled substances and drugs of dependence in it); and includes providing information about the composition of the tested substance, the possible consequences of using that substance, and advice about how to reduce the harms that use of that substance may cause.

The Bill defines the director of a drug-checking service who meets the prescribed requirements and is engaged by the permit holder to oversee the provision of drug-checking services and to perform any other prescribed duties.

Section 22CC inserts a definition of client to mean as a person attends a drug-checking for the purposes of:

• supplying a substance to the drug-checking permit holder or a special drug-checking worker so that a drug-checking service can be provided or so that the substance may be disposed of;

• being provided with a drug-checking service, including analysis of substances, advice regarding the use of substances, and advice regarding access to health services and other assistance.

A drug-checking place means a premises for which a permit has been issued for fixed site drug-checking or, for a mobile drug-checking, for a mobile drug-checking service, the mobile drug-checking facility, a temporary structure erected for the purposes of the provision of drug-checking services, or an approved area within a permanent structure temporarily used for the provision of drug-checking services.

Exemptions from Liability

The Bill provides specific legal exemptions to encourage the use of drug-checking services without fear of legal repercussions.

Statutory exemption from criminal liability for clients, permit holders and authorised staff of drug-checking services is necessary for the effective operation of these services, promoting public health, providing legal clarity, and supporting a harm reduction approach. Further, this allows these services to function as intended, without the risk of criminal charges, as well as freeing up law enforcement resources to prioritise more serious drug-related crimes, such as trafficking.

Client Exemptions

For some people, accessing a drug-checking service will be the first time they talk to any worker about their drug use, therefore the service will capture a section of the population who do not usually access support for their drug use.

An exemption from criminal liability prioritises health and safety over punishment for a client of a drug-checking service. It will ensure that clients can use the service without risking criminal liability by bringing a substance to a drug-checking place and fearing repercussions.

Legal protections give clients confidence that they are protected by the law when engaging with harm reduction services, creating a supportive environment where clients can make informed decisions about their health without the fear of prosecution.

The Bill specifies that exemptions do not affect any other legal obligations: Clients will not be exempt from any requirements relating to drug possession or supply placed on them under any other legal order. For example, a person who is granted bail on the condition that they do not possess a drug of dependence will be in breach of that condition of bail if they possess a drug of dependence at a drug-checking service.

The Bill inserts section 22CD, which provides that clients using the drug-checking service are exempt from liability in relation to possession and supply offences that occur when undertaking the activities that are authorised for clients, provided the amount of substance is less than a traffickable quantity of a drug of dependence.

Section 22CE provides that exemptions for clients from supply and possession offences do not limit a police officer’s authority to exercise discretion in not charging a person in the vicinity of a drug-checking place in order to use the service.

Exemptions for permit holders and certain staff members

The Bill inserts section 22CF, which provides that permit holders, drug-checking director, special and general drug-checking workers are exempt from criminal liability when performing their permitted duties. These exemptions are crucial for ensuring that staff can carry out their responsibilities without the threat of legal action, thus maintaining the integrity and functionality of the service.

Exemption from criminal liability is also crucial to encourage the participation of highly qualified professionals, such as clinicians and chemists, who are essential for the accurate analysis and effective operation of drug-checking services.

Owners of property

The Bill extends the exemption from an offence against the Act to people who own or occupy the land or premises where there is drug-checking takes place. This is necessary to ensure they are not liable for possession offences. This section is included because section 5 of the Principal Act deems this class of person to be in possession of any substances on that land or those premises.

Exemption from civil liability

The Bill inserts Section 22CH Act to provide an exemption from civil liability for certain persons connected to the provision of drug-checking services. This includes drug-checking permit holders, staff authorised to handle drugs s or provide harm reduction information, the owner of a drug-checking place or the land or premises on which a drug-checking place is located, and each trustee or member of a committee of management or board of a relevant service or place.

The public policy rationale for the exemption from civil liability is to ensure drug-checking services can operate effectively, without fear of legal action. Protection is necessary to shield operators from claims of negligent misrepresentation acknowledging the limitations of the testing process. While drug checking service staff strive to offer accurate information, the complexity and variability of illicit substances make it challenging to guarantee complete safety.

The Bill further amends the Act to provide that drug-checking staff do not commit unprofessional conduct for the purposes of the Health Practitioner Regulation National Law and do not breach professional etiquette or ethics or any other code of conduct.

Planning permit not required

The Bill also provides that planning permit is not required in relation to the provision of drug-checking services. This is necessary to exempt drug-checking services from the requirements of the Planning and Environment Act 1987 so that drug-checking services can quickly become established.

Regulations

A broad regulation making power has been included in the Bill. Providing for regulations to be made gives greater flexibility and adaptability than embedding specific provisions in the Principal Act. This allows for quick updates in response to changing circumstances, manages detailed or technical aspects and incorporates expert input.

The Bill authorises regulations to prescribe:

• standards for the provision of drug-checking services; or other activity under a drug-checking permit;

• regulating the possession, analysis, supply, storage, destruction, transport or delivery of a substance;

• standards for a drug-checking place

• requirements that a person must meet in order to be fit and proper person in relation to the issue of a drug-checking permit; and

• approvals and applications within permanent structures for mobile drug-checking permits.

Vending machines for naloxone or other Schedule 2 or Schedule 3 poisons

In order to allow the automatic dispensation of naloxone, the Bill includes an exception to section 30 of the Act which prohibits the installation of automatic machines to supply poisons or controlled substances, including naloxone in any premises. This is an offence which attracts a penalty of up to 10 penalty units or a term of imprisonment up to 6 months.

As outlined above, naloxone dispensing machines play a crucial role in our efforts to combat the opioid crisis. They are they are not just a convenience – they are an essential component in our approach to saving lives – and this legislation will allow naloxone to be more accessible than ever.

The Bill reflects contemporary and advanced policy and legislative settings to establish the statutory framework for drug-checking services and naloxone dispensing machines.

The government is open to opportunities to improve and enhance the scheme in the future to maintain its effectiveness and ensure it continues to support the broader harm minimisation strategies of the Allan Government.

Drug-checking cannot eliminate the risks associated with drug use, and it is not designed to do so. It is about providing health information to people who are simply asking for it, and that is a crucial part of harm reduction.

The approach in this Bill is intentional, aiming to protect Victorians and give them the information they need to keep themselves safer. Drug-checking has clearly demonstrated its value in jurisdictions near and far.

We have no time to waste.

I commend this Bill to the House.

Emma KEALY (Lowan) (11:11): I move:

That debate be adjourned.

Motion agreed to and debated adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 25 ‍September.