Bills

Controlled Substances (Simple Possession Offences) Amendment Bill

Introduction and First Reading

Mr VAN HOLST PELLEKAAN (Stuart) (10:31): Obtained leave and introduced a bill for an act to amend the Controlled Substances Act 1984. Read a first time.

Second Reading

Mr VAN HOLST PELLEKAAN (Stuart) (10:32): I move:

That this bill be now read a second time.

We have a situation in our state whereby offenders who are caught with small quantities of controlled or prescribed substances in non-commercial and non-trafficable quantities can elect not to go to court but to take a drug diversion program instead.

I think, in general terms, that is a positive opportunity for somebody who essentially has been caught with a small non-trafficable quantity of drugs—for example, somebody in a nightclub with a couple of pills or whatever. I do not condone that at all; in fact, I think it is absolutely disgraceful, but I think it is a positive thing that that person should have the opportunity to take what is essentially an educational program rather than go through the court system.

What I do not support, what I object to and what I want to change through this bill is that currently that person could elect to make that choice an unlimited number of times. So you get caught doing the wrong thing and say, 'Look, I’m terribly sorry, don't send me to court. I will take my drug diversion, I will take my re-education opportunity, and I will be a good boy or a good girl,' then get caught again and make the same choice, get caught again and make the same choice—perpetually making the same choice and avoiding genuine justice. I think it is a good idea that people who would take advantage of that kind opportunity that the law currently offers them get to do that but certainly not an unlimited number of times, which is what happens at the moment.

We need to change this, and it is a very simple change. What I am proposing is that the person could make the election once or twice, but on the third time that they are caught doing the wrong thing they go to court. They do not get to make that choice anymore themselves. Very importantly, when they go to court, a magistrate could make that choice. A magistrate would still have the right to allow that person a third go or a fourth go if they really thought that it was warranted, if they really thought that it was not going to be a waste of time, but the offender does not get to make that choice.

Let me give you some real life examples. In the 2011-12 financial year, 339 offenders were diverted to the program on three occasions; so 339 separate people took up this option three times. A total of 137 people took up this option four or more times, and one person took up this option 14 separate times—so one person on 14 separate occasions was caught with illegal drugs and 14 times said, 'I'm terribly sorry. I'll sort myself out. Just give me one more chance. I see the error of my ways. Just send me off to the drug diversion program again and I promise you this time it will work.'

What rubbish, what absolute rubbish. Sure, once; sure, twice, but when you have had two go’s and you get caught again, 'Off to court,' is my very strong view. Then the court can decide what is the best way to deal with this person, what is the best way to help this person. As I said, it may well be a third opportunity, but the magistrate will decide that, not the offender.

I mentioned some 2011-12 figures before. Unfortunately, they are the latest I have. I got those through FOI and they were provided to me through FOI, but then when I asked for the 2012-13 and the 2013-14 figures my request was rejected. I was told, 'I'm really sorry, the police can't provide those figures for you. You actually have to go to the health department for those.' I put an application in to the health department and was told, 'Actually, no, we're not going to release that information.'

For some reason it was okay to give me the 2011-12 figures, but the relevant FOI officers denied me the 2012-13 and the 2013-14 figures. I do not know why that is. I cannot think of any plausible reason why it would have been even more sensitive information. It might have been difficult or damaging to the government or something like that. I cannot imagine why it was okay initially, but not for the subsequent two years, unless perhaps of course the situation is getting worse. My fears that the situation is getting worse seem to be supported by an article in The Advertiser newspaper on 19 November last year by journalist Doug Robertson. I will quote a short passage from that article:

Drug users are abusing the system by repeatedly using the government diversion program to avoid the courts and criminal convictions, experts have warned, including one person who has completed it 32 times.

My 2011-12 figures highlighted a person who had gone through it 14 times, but this article, written in November last year, says that there is a person who has actually done it 32 times. How ridiculous! There would not be a member in this place, regardless of whether Liberal or Labor, who thinks that that is sensible. I urge the government to support this bill. I continue reading from that same article:

Several police officers, a top Adelaide psychologist—who all wish to remain anonymous—and Liberal police spokesman Dan van Holst Pellekaan told The Advertiser many repeat offenders had no intention of quitting illegal drugs and were manipulating the system.

So it is not just me; there are many other people out there who think this change is a good idea, and I will come back to that shortly. The quote continues:

Another user went on the program 14 times, while 27 per cent of all participants had repeated the program at least once in its 12-year history.

Five per cent of the more than 16,000 participants had tried three times to end their illegal drug-taking without success, and 5 per cent were diverted more than four times.

Those lost numbers are so important, apart from the concern that, in 2011-12, somebody took this option 14 times and subsequent to that it seems. I do not know where Doug Robertson got that information; he may have a more lenient FOI officer than I have, but he has certainly reported another person for accepting the opportunity 32 times. What is really important here is that 5 per cent have taken the option more than four times and 5 per cent have taken it more than three times. To me that does crystallise the size of the problem.

In broad terms, it seems that 10 per cent of the people who have this option—10 per cent of the offenders—are actually abusing the privilege, and that is very important because 90 per cent of the offenders, in rough terms, are actually taking advantage of the opportunity, are using the privilege granted to them and using it responsibly, and I do not want them to be penalised. I want the people who take that opportunity and who use it responsibly to be able to continue to do so into the future—different people of course, not the same individuals, but other people who find themselves, for whatever reason I cannot imagine, to be carrying illegal drugs. Ninety per cent of those people can continue to responsibly take up this diversion option that is available to them.

But, let's crack down on the 10 per cent. Let's change this law so that seemingly the 10 per cent, in rough terms, of the people who are not taking proper advantage of this opportunity, the 10 per cent of the 16,000 who find themselves in this situation get back on track, because clearly giving them repeated opportunities time after time, up to 32 times in one instance, is doing no-one any good whatsoever. We need to crack down on the recalcitrants who are laughing at the system and actually taking no penalty whatsoever for repeatedly being caught with illegal drugs.

One of the reasons this is so important is it takes up an enormous amount of police resources to allow people to take up this drug diversion program option. It is actually a police officer who has to do the admin, the leg work and the paperwork to book and enrol the person in. It is actually the police officer who has to follow up and see whether he or she have attended, a police officer who has to arrange it for them and, essentially, hold their hand all the way through the process. So, it is a complete waste of police resources over and over again.

On top of that, it is demoralising for police. Police are good people out there working really hard to prevent crime in our society and to catch people who commit crime in our society. It is quite natural that they get terribly demoralised if they keep catching the same people and they keep getting let off. It is absolutely ridiculous, absolutely preposterous. That is one of the good reasons that this suggestion was actually proposed in the '10 Years of the South Australian Police Drug Diversion Initiative' report that came out in May 2012. I quote from page 33 of the report, under the heading 'Discussion':

Compliance with diversions is generally very good, with an overall compliance level of 81 per cent. Nevertheless, another important finding is that compliance with diversion tends to decrease the more times an individual is diverted. This indicates that it may be necessary to re-visit the PDDI model and once again consider capping the number of times an individual can be diverted.

This is a recommendation made to the government by the police a couple of years ago. I could not imagine why the government would not choose to support this private member's bill. The police think it is a good idea, the public think it is a good idea, professionals who work in this area think it is a good idea, the opposition thinks it is a good idea, and I bet my life that the majority of members opposite would think that this is a good idea.

It is only about cracking down on the people who abuse the privilege. It is not about removing the privilege. It is about supporting the people who take the privilege and use it responsibly and do find the error of their ways and do get back on track and do not fall into the same traps again. It is trying to get at those people who typically take up the option and laugh at the police, laugh at the courts and laugh at everybody who is trying to help them. Those people have to go to court.

Those repeat offenders, on the third time they are caught with illegal drugs on their person, need to go to court—and give the magistrate the right to choose what the appropriate penalty should be, whatever that might be, and it could still be, if the magistrate (he or she) decided, a third opportunity; it does not rule that out. What it does do is it takes away the right for the offender to choose.

I do not accept an argument that this is going to clog up the courts, that this is going to make our already overcrowded court system fall over. If the courts cannot deal with repeat drug offenders, who can they deal with? If the courts cannot take on that responsibility, what responsibility will they take on? It is only the people who are not taking proper advantage of their right to elect the diversion program themselves who need to be dealt with in this way.

This private member's bill will improve people's behaviour after they have been caught, it will make our police and our legal system far more efficient, it will improve the efficiency of and save the cost to our police, and it will improve police morale. Many police officers come to me and say, 'This is devastating stuff. You catch people repeatedly. They laugh at you, they do a program and, guess what, as a police officer, I'm the one who has to plan it all for them, I am the one who has to do it for them.' I very earnestly call on the government to support this private member's bill.

Debate adjourned on motion of Hon. T.R. Kenyon.