Today’s correspondent works for Queensland Ambulance Service (QAS) ‘… with frequent responses into NSW’.  They ask ‘how lawful might be a QAS EEA on a NSW patient transported to a NSW facility?’

That’s an interesting question.  First let us recall that the power of a Queensland ambulance officer to detain a patient is not found in an EEA, it is found in s 157B of the Public Health Act 2005 (Qld).  Having detained a person and transported them to a ‘public sector health service facility’ then a QAS officer can write an EEA that authorises the persons further detention in that facility.  The question I’m asked therefore can be looked at in two parts, first can a QAS officer rely on s 157B to detain a person in NSW, and second, can a NSW health facility rely on an EEA written by a QAS officer to continue a person’s detention in NSW. 

These issues are only likely to arise if there is litigation that is a person is detained by a QAS officer and seeks a remedy for false imprisonment on the basis that the detention was not authorised by a law of NSW. Then it would be up to QAS to defend itself, and its officer, on the basis that the detention was authorised by a Queensland law.  The constitutional issues to be resolved here are well beyond my expertise so the conclusions that follow are at best tentative but would be my expectation of how the matter might resolve. 

Section 3 of the Public Health Act says ‘… this Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and all the other States’.  Well and good but it does not explain what ‘the legislative power of the Parliament permits …’. 

The starting principle has to be that legislatures only have the power to legislate for their jurisdiction, ie the Queensland parliament can only write laws for Queensland; but laws can and do have extraterritorial application (Australia Act 1986 (Cth) s 2)) and laws across the Commonwealth are recognised and given effect by the other states and territories (Australian Constitution s 118).  So, for example, a QAS officer remains an employee of QAS and subject to their disciplinary control even in NSW. Further one would expect that NSW would give full faith and credit to the Queensland laws so would accept that, for example, a QAS paramedic authorised to carry certain scheduled drugs commits no offence when entering NSW in a QAS ambulance to perform their work as part of mutual assistance between the states.  That is the law of Queensland governs the Queensland ambulance service but given members of the Queensland ambulance service can and do travel across state boundaries to perform their duties, authorised as they are by both Queensland and the other state (in this case NSW), at least some part of the Queensland law must travel with them, and in particular that part of the law that governs their employment and defines their duties.

In their article, The Resolution of Inconsistent State and Territory Legislation (2010) 38 FLR 391, Geoffrey Lindell and Sir Anthony Mason say (at p. 397):

It is true that the power of a State to enact extraterritorial legislation is qualified by a limitation based on the need to satisfy a connection between the matters covered by the legislation and the State which enacted the legislation. But the requirement is liberally applied and a remote and general connection suffices.

Making a law about QAS and the power of QAS officers even when interstate, is clearly a matter of close connection to the state of Queensland.  Queensland could not however pass a law that was said to apply to QAS officers in NSW but which was directly inconsistent with a valid NSW law.  

Prima facie I would argue that s 157B authorises a QAS officer to detain a person and if the QAS officer is responding to NSW at the request of NSW then he or she brings all the powers of a QAS officer with them, including the power to detain.  But, I would argue, the power of a health facility to continue the detention of the person on the basis of an emergency examination authority issues by a QAS officer is doubtful given the Queensland parliament cannot write laws to govern NSW health facilities.

That would be my expectation of the law based on general principles.  I am more confident in my interpretation because the States of Queensland and NSW have seen the problem and taken steps to resolve it.  In a Memorandum of Agreement on Interstate Application of Mental Health Laws, the Minister for Health and Minister for Ambulance Services for the State of Queensland and the Minister for Health for the State of New South Wales noted that:

Chapter 11, Parts 5 and 6 of the Queensland Mental Health Act 2016 (‘Queensland Act’) and Chapter 8 of the New South Wales (NSW) Mental Health Act 2007 (NSW Act) provide for the interstate application of mental health laws.

(I note that this agreement is available from the NSW Department of Health website at https://www.health.nsw.gov.au/legislation/Pages/agreements.aspx where the online version is undated. The same agreement is available from the website of Queensland Health https://www.health.qld.gov.au/__data/assets/pdf_file/0023/734711/NSW-Interstate-Agreement.pdf and is dated 16 November 2018.)

Relevantly, the interstate mental health laws include Chapter 4A of the Public Health Act 2005 (Qld) which includes ss 157B and 157D dealing with an emergency examination authority (Mental Health Regulation 2025 (NSW) r 23). This agreement says, at [6.2] 

A Queensland person who appears to have a mental illness and who may be detained and transported to a Queensland Public Sector Health Facility by a Queensland ambulance officer or a Queensland police officer under section 157B of the Public Health Act 2005 (Qld) may instead be detained and transported to any NSW Facility.

Paragraph [6.3] equally provides that a NSW ambulance or police officer acting under the Mental Health Act 2007 (NSW) ss 20 and 22 respectively, may take their patient to a Queensland rather than NSW facility.  So that allows officers on the border to detain a person in their state and decide that it is in the person’s best interest to be taken to a facility on the other side of the border. 

There is a further agreement, intended to be dated in 2023 between the Minister for Health for the State of Queensland and the Minister for Health for the State of New South Wales available at https://www.health.nsw.gov.au/legislation/Documents/qldcivil.pdf. The exact status of this agreement is unclear but it does say (at [4.3]) that a NSW gazetted mental health service can detain a person on the basis of an EEA signed by a Queensland ambulance officer.

Assuming all these agreements are in force it says that a QAS officer can detain a Queensland patient and transport them to a NSW facility and the NSW facility can continue their detention based on an EEA issued by that officer.   So an officer in Coolangatta can detain a patient in Coolangatta but take them to Tweed Heads for examination. 

The agreement does not, however, deal with a situation where a QAS officer is asked to respond to NSW (eg an officer in Coolangatta responding to Tweed Heads) and who wants to rely on the Public Health Act 2005 (Qld) to detain a NSW resident and take them to a NSW mental health facility.   It could be argued that the QAS officer is entering NSW with all the tools in their kit, including the Public Health Act, and therefore can detain a person.   If that is the case then the 2003 agreement (if it is in force) would also appear to allow a person’s detention in NSW.   If there was any doubt, a QAS officer operating in NSW could call on NSW police to exercise their powers under s 22 of the Mental Health Act 2007 (NSW).

Conclusions

My conclusions here are certainly tentative given the unclear status of some of the agreements and the complex constitutional issues that could be raised. I think it is clear that a QAS officer can detain a patient in Queensland under the Public Health Act and transport them to a NSW facility where that detention can be continued on the basis of the EEA written by that officer. 

What is not clear is what, if any power a QAS officer has to detain and transport a NSW patient in NSW which might happen as part of Queensland/NSW interstate cooperation.  With a view to acting in a patient’s best interest I would anticipate that a court would accept that a QAS paramedic carries the Public Heath Actwith them just as they carry their drug box so, if requested by NSW to respond into NSW can exercise their power.  If however a QAS officer is concerned about a patient’s mental health they would be well advised to try to contact the patient’s doctor or NSW police for them to exercise their authorities under the NSW Act. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.