Legislative Assembly for the ACT: 1998 Week 10 Hansard (25 November) . . Page.. 2999 ..
MR STANHOPE (continuing):
"I still have serious concerns", said the Director of Public Prosecutions. I am impressed with Ms Tucker's forensic skills. The DPP continued:
It seems to me that there is in the Bill no clear standard as to what information precisely (ie, if you will, the actual words to be used) is to be given. Further, the requirement -
this goes back to subclause 7(1)(a) and (b) -
that it be "properly, appropriately and adequately" provided is not the kind of investigation that should be carried out by a criminal court. For example, if a practitioner in good faith advises that "it has been said that there is an increased risk of breast cancer from this procedure, but I have read the literature and I do not believe that is so and you (the patient) can safely ignore the risk, although you might like to seek a second opinion" it could still be possible that a court would hold that this does not comply with the section; one simply does not know - neither I, as prosecutor, nor the practitioner, nor the patient. A practitioner needs to know precisely what he or she has to say and what not to say.
The first law officer of the Territory was dismissive of Ms Tucker and her legal abilities, but those of you who say that Ms Tucker does not have a point and that this is all crystal clear are simply wrong. The second or third most senior law officer in the Territory agrees entirely and absolutely with Ms Tucker that this provision is flawed. The Director of Public Prosecutions, as late as 3.36 this afternoon, was still expressing serious concerns about how this provision is to be applied. The Director of Public Prosecutions thinks this provision is not workable.
Ms Carnell: He does not say that.
MR STANHOPE: He has the most serious concerns about it. He is the second or third most senior legal officer in the ACT and he has serious concerns about how this provision will work. We have a serious problem here and part of it can be addressed by the amendment that I propose, although I do not think it solves the DPP's concerns. It still leaves terrible doubts in my mind about this mishmash, this dog's breakfast, as I think my colleague Mr Quinlan calls it.
MR MOORE (Minister for Health and Community Care) (1.09 am): Mr Stanhope, I was unnerved in exactly the same way when I read the Director of Public Prosecutions concerns, but I read on. The Director of Public Prosecutions went on:
The problem, under this construction, arises later, however, as new clause 15 does not require that the relevant bodies actually produce or approve any materials containing the relevant information; the clause is merely permissive or facilitative.