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Legislative Assembly for the ACT: 1997 Week 11 Hansard (5 November) . . Page.. 3662 ..

Mr Moore: It is because of their qualifications.

MR HUMPHRIES: Maybe there is an argument for that. I have to say that I have not yet been able to address that. I do not see the basis for that, but I remain a little open-minded about that. I have to say that, at first instance, it strikes me as somewhat inconsistent that that should be the case. I also note that paragraph 5(e) of the Bill, of the provisions dealing with medical practitioners, uses the phrase "administered ... without assistance". If a doctor connected a patient to a machine and the patient performed an action that triggered an injection, there is room for some argument as to whether or not the patient administered the substance or the drug without assistance.

Mr Moore: That is the Nitschke method.

MR HUMPHRIES: The Nitschke method. I note that there is different terminology used in subparagraph 5(d)(i), where the phrase used is "supervises the administration of a substance". The use of those two different phrases, I think, could give rise to some confusion. I do not press that point, but that is a point that I think needs to be taken into account.

The really troubling provisions, of course, are the ones in clause 6 where we deal with infringement notices or offence notices, as they are called here. Notices like this, of course, have never been used in this kind of application. They have traditionally been used for things like parking offences and perhaps, on a more serious scale, simple cannabis offences. They have been dealt with in a way which is meant to connote something that could be dealt with administratively in a simple, straightforward way. I have grave concerns about placing the taking of a life, even in the relatively exculpatory circumstances that Mr Moore refers to, in the same category as those other offences. Obviously, Mr Moore is intending to decriminalise the offence in those circumstances. There is an offence and there is a penalty attached to it; but it does not result in a criminal conviction on the record of that particular doctor, health professional or other person.

Mr Moore: And the doctor cannot be deregistered.

MR HUMPHRIES: And the doctor cannot be deregistered and cannot be sued for malpractice and so on. That is true, but still we are dealing with someone taking somebody else's life or assisting them to take their own life and having it dealt with by way of an infringement notice. There is no guidance offered in the legislation, for example, as to the kind of situation where a police officer or the DPP might proceed by way of an infringement notice rather than by way of a prosecution under the other provisions. I wonder what policy would be put in place there. It would be a difficult circumstance to deal with.

I also note in subclause 6(2) - and this is a more technical comment - that the Director of Public Prosecutions has the capacity to serve an offence notice where a medical practitioner has been charged with an offence under clause 5. On that point, I might just note that there is no precedent anywhere in our law for the DPP to serve infringement notices; that is not his or her role at all in our present system of criminal justice. I think it does rather confuse the prosecutorial role of the DPP with the role of a police officer to enforce the law.

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