Debates Day 3 - Thursday 21 October 2010
Parliamentary Record 15
Debates for 11th Assembly 2008 - 2012; ParliamentNT; Parliamentary Record; 11th Assembly 2008 - 2012
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DEBATES - Thursday 21 October 2010 indicates there is a broader power. I could stand corrected on this; I look forward to the ministers response. The courts are quite clear on this issue of implied powers in legislation. I listened very carefully to the answer given to my question by the minister today. He suggested the advice received from his department was the actions and policy were lawful. That 24-hour policy, compared to the six hours outlined in the legislation, seems to be a clear and unambiguous contradiction. If the department is relying on some implied power in the legislation, I am curious to know what it is. I remind honourable members of Chief Justice Brian Martins comments in R v Ebatarinja. He said: The Legislature is expected to speak plainly when identifying persons who may restrain liberty and to specify the conditions under which the power to restrain may be exercised. The statutory scheme under consideration does not plainly That was in relation to the case he was referring to at the time: evince an intention that the Court possesses the power to authorise restraint at the hands of the Chief Executive Officer of the Department or persons employed for that purpose at a residential premises separate from both a prison and an approved treatment facility He is saying the legislature must plainly indicate that cherished concept of personal liberty, if it is going to be removed, cannot be drawn from some implied consequence of legislative drafting; it needs to be actively outlined and described. This concept is well understood. I note the Ombudsman, 18 months ago, made comments about the same issue in her report to this House. She quotes Justice OConnor from the High Court, and said on the principle of the legislature clearly outlining a restraint on liberty it has to be manifest and clear. That too was stated by Justice OConnor in the High Court as long ago as 1908 when he said: It is in the last degree improbable that a legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness. Irresistible clearness. The legislation has to be irresistibly clear if you are drawing some power from it to restrain personal liberty. A court cannot assume - and the court has refused to assume - it can imply that power from somewhere else. I am curious to hear what the minister has to say on this point, and if there is some intention to draw that power down to hold people for longer than six hours without sectioning them, implied in some other part of the legislation. If it is stated clearly I would like the minister to point it out to me. It is wrong to hold people in custody without the express authorisation of this House. There is a general presumption of liberty in our community, and it is clear a policy which states 24 hours after admission is inconsistent with section 30 of the legislation, which says a voluntary patient may be held up to six hours when certain criteria exists. There is no evidence to suggest the criteria demanded by section 30 was applied to Jock, because all he wanted to do was go outside for a cigarette - hardly indicative of a deterioration in psychological condition. It is not stated, but would appear in relation to Jessica, she was being held contrary to section 30, not because of the six-hour time limit, but because there is no suggestion she was deteriorating. She was advised she needed to stay and be reviewed the following day and sectioning was a possibility if she left. In the absence of any suggestion this person was deteriorating there was an enforcement of custody, which occurs when a person is deprived of their liberty. If I say to a person: You are free to leave, but if you try I am going to lock the door on you, I have deprived that person of their liberty. It is, at very best, a sloppy approach to the practice of restraint to suggest the person was always free to leave when you had told them: if you try, we will section you. I note a comment on page 17: A doctors plan on that day stated that she was to be admitted as a voluntary patient and that she was not to have any leave until reviewed by the treating team. Perhaps that will have fallen within the six-hour time limit, perhaps not. I presume it will not have fallen within the six-hour time limit. This is one of these people who had the 24-hour policy being applied to them because the CVP team say the cases outlined demonstrate this is not the case in relation to them being lawfully kept. One can only conclude from the comment by the CVP team that doctors plan had fallen outside the parameters of the Mental Health and Related Services Act. Consequently, I am curious about the ministers answer in Question Time today. If he has legal advice as to why the policy to keep people in custody for 24 hours is legitimate, I 6538
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