This question comes from a person working with NSW Ambulance. My correspondent writes:
Recently a crew was called to a federal government detention facility, to attend an unwell individual with a non-English speaking background and a well-known mental health history to the staff. The patient was having a psychotic episode and was unable to consent to treatment (although compliant to be loaded into the ambulance). NSW Police Force were requested to attend but refused as they have no jurisdiction to section or schedule a patient on commonwealth property. There was no approved Medical Officer onsite that could schedule the Patient and the contract security staff were unwilling (nor should they need to as they have no medical training) to authorise treatment. In the case of the patient requiring to be chemically restrained and transported, would this be considered assault under a federal law? The state law was well known to the attending paramedics but they were reluctant to treat for fear of legal ramifications. Secondly does a NSW Paramedic have the authority to schedule a patient in a commonwealth run facility? I have not been able to find an answer from anywhere and every NSW Ambulance employee I have asked have given a different answer.
Any clarification on this issue would be greatly appreciated.
For an answer to a related question, dealing with a response by the RFS, see Responding onto defence areas (June 1, 2014).
When we’re told the person is in a ‘federal government detention facility’ I’ll assume that is a detention centre run for the purposes of the Migration Act 1958 (Cth). I will assume, without verifying it, that the detention centre is a Commonwealth place for the purposes of the Commonwealth Places (Application of Laws) Act 1970 (Cth). That Act says (at s 4(14)):
Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.
In essence that says that State laws apply on Commonwealth places in that state. This removes the need for the Commonwealth to write laws that equate to all the state matters to apply on their premises. This will be true unless there is a specific, inconsistent Commonwealth law in which case the Commonwealth law will prevail (Australian Constitution s 109. See also the opening words of s 4(14), ie the section does not limit ‘the effect of any other law of the Commonwealth’ so if there was another law of the Commonwealth that limited the ability of someone to exercise a power under State law, that would apply – it would not be limited – and the state law would be appropriately restricted to allow the Commonwealth law to apply in accordance with its terms).
The complication here is that the person is in detention and so not at liberty and their consent may not be relevant. The Migration Regulations 1994 (Cth) provide that the Secretary of the Department can consent to medical treatment for detainees and any treatment that is then given is deemed to have been given with their consent (reg 5.35). That regulation is not really applicable and is intended to give the Secretary the power to deliver ‘nourishment and fluids’ (ie to deal with those on a hunger strike) rather than emergency care or emergency mental health care. That is the only provision in the Act or Regulations dealing with medical care so there is no other relevant Commonwealth law to apply here.
It follows that the NSW Police could exercise their authority under the Mental Health Act 2007 (NSW) (s 21) as could the paramedics (s 20). If that were not the case the authority of the paramedics to carry scheduled drugs would lapse on a commonwealth place but clearly they continue to be, and be allowed to act as, NSW Ambulance Paramedics.
Without seeing the extent of their authority and any relevant delegation from the Minister I can’t say whether the security staff would have any authority to authorise treatment.
As for the common law of necessity – which says that where a person is unable to consent to treatment, treatment that is reasonably necessary and in their best interests may be given – that forms part of the common law of Australia so is as applicable on Commonwealth land as it is on private or state owned land.
Conclusion
The fact that the person was on a commonwealth place is irrelevant. By virtue of the law Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4(14) the powers of the paramedics under both statute law (in this case the Mental Health Act 2007 (NSW) s 21) and common law continue to apply unless there is an inconsistent Commonwealth law. I have not been able to identify any relevant, inconsistent Commonwealth law.
Australian Emergency Law 
Dear Michael,
Following on from this great post, where do NSW Paramedics stand in relation to crossing state borders? There are several stations that are located on the borders of ACT, Victoria, Queensland etc. We are often called to cases “interstate” as NSW is the closest response. Are NSW Paramedics able to apply powers under the NSW Mental Health Act when treating patients in another state?
Thank you
Doug Sawtell
The situation between states is not the same as on Commonwealth places within states. State law only has application in a state. A commonwealth place is a place where the Commonwealth has exclusive jurisdiction so a state law would not apply there save that the Commonwealth has, in effect “enact Commonwealth law in the same terms as each State” (R v Porter [2001] NSWCCA 441).
When travelling interstate, the law of NSW can’t apply in the other state, unless there is some express decision by the other state. We can all drive interstate as every state has ‘visiting driver’ provisions that allow a person resident in one state to drive in another with their home state licence, and to drive a car registered in their home state.
It follows that in Victoria, the Mental Health Act 2007 (NSW) cannot apply. Arguably a paramedic that travels interstate loses his or her authority to be in possession of scheduled drugs, too. The Australian Constitution s 118 says ‘Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State’. Giving full faith and credit to the laws of each state would allow a paramedic, who is employed by NSW Ambulance to carry his or her drugs into another State when responding as part of his or her duties and at the request or in accordance with an understanding between the states. That is even though there is no express provisions in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) to stay interstate paramedics can continue to use their drugs, it has to follow that if there are arrangements for an interstate response, then they have to be able to operate in accordance with their NSW authority.
Interesting the Mental Health Act 2014 (Vic) refers to an ‘ambulance paramedic’ when defining who is an authorised person under that Act. The term ‘ambulance paramedic’ is not defined and is different to the term used in the Ambulance Services Act 1986 (Vic). That Act refers to ‘an operational staff member’. I don’t think it would be a long stretch to find that an ‘ambulance paramedic’, for the purposes of the Mental Health Act 2014 (Vic) includes a paramedic from NSW who has responded into Victoria at the request of, or in accordance with an agreement between NSW and Victoria to ensure the response of the closest ambulance.