I wrote a post on Carrying scheduled drugs interstate back on January 28, 2016. That post was triggered by a question from a volunteer with St John Ambulance (NSW). The issue arose because St John Ambulance (ACT) were unable to provide requested first aid cover and asked their NSW colleagues to assist. The question was whether the NSW members could carry scheduled drugs that they were authorised to use, into the ACT. I had assumed that there must be legal provisions in place to allow people to carry drugs across state and territory borders as it must happen on a regular basis – ambulance paramedics, non-emergency patient transport services, commercial and volunteer first aid organisations as well as registered health professionals must often cross borders whilst carrying their normal ‘drug kit’.
My research failed to identify any relevant legal authority. My conclusion was
… to possess, supply or administer a schedule 2, 3, 4 or 8 medicine in the ACT a person has to have an authority issued by the Chief Health Officer of the ACT. Presumably members of St John Ambulance Australia (NSW) do not have that authority. It follows that if they wanted to travel to do duty in the ACT any authority they have under the relevant NSW law would not be sufficient and they would have to leave their scheduled drugs at the border.
I came to a similar conclusion for people travelling from the ACT to NSW.
In that post I said:
I confess this is an issue I’d ‘skirted’ around in earlier answers that is the question asked didn’t need me to address this head on, so I didn’t but now I have no choice and it appears that the answer is ‘No, an interstate authority is not sufficient’. As I say I think this answer is both surprising and important for the sector so in this blog I’m going to limit myself to the facts given, ie St John volunteers crossing between NSW and the ACT. I may take time to write a more detailed paper looking at all health professionals (in particular doctors, nurses and paramedics) and all states and look to publish that in an appropriate journal, perhaps the Australian Journal of Emergency Management. Watch this space and I’ll let you know if and when that happens.
In researching this matter further, I am now persuaded that I was wrong and that there is relevant authority.
In New South Wales the Director General can give authority to supply, prescribe or administer scheduled drugs (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 170(1)). Regulation 170(3) says that ‘… any exemption in force under a law of the Commonwealth, or of another State or a Territory, corresponding to this clause has the same effect as an exemption under this clause’. It follows that if a person has an authority issued in the ACT that will be honoured in New South Wales.
In the ACT ‘The Act requires that a person must not deal with a medicine in a particular way unless the person is authorised to deal with the medicine’ (Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) r 10). A person is authorised to deal with a medicine if ‘the person has a licence or permit under a Commonwealth Act, this Act or another territory law that authorises the dealing’ (Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) s 20(1)). It follows that if a person has an authority under an interstate law that too will be honoured in the ACT.
There could be debates about whether an exemption granted under a regulation (see Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) r 190(1)(a)) is the equivalent to an exemption granted by the Director-General of Health in NSW but I can’t see that any regulator or court would seriously entertain the argument that the NSW regulation was not intended to act, in effect, as a mutual recognition provision.
Equally one might argue that an exemption set out in Appendix C to the NSW Regulation is not a ‘licence’ for the purpose of the ACT law. A licence is, however ‘an authority to do something which would otherwise be wrongful or illegal or inoperative’ (Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525) not a card or piece of paper. The key issue is the authority, not the form so an exemption provided by regulation is as much as licence to deal with drugs in a way that would be otherwise illegal as a licence issued as a card would be.
It follows that to return to the question I was originally asked ‘Is a NSW poisons licence valid for use in the ACT?? (And potentially vice versa?)’ I am now of the view that the answer is actually ‘Yes’.