Controlled Substances (Simple Possession Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 June 2015.)

Mr VAN HOLST PELLEKAAN (Stuart) (17:30): I will be fairly brief and I highlight the fact that I am not the lead speaker. The member for Morialta will be our lead speaker. As you might know, I have quite a bit of history in this place with this issue and I wholeheartedly support the government in what it is trying to do by bringing forward the Controlled Substances (Simple Possession Offences) Amendment Bill.

In summary, this bill essentially tries to deal with the fact that currently, if someone is charged with serious drug offences like manufacturing but they happen also to possess a personal quantity about themselves, they are caught up in the drug diversion process in addition to their serious charges. Given that these offenders are already caught up in the criminal justice system, this is a pointless waste of time. The government's bill would stop a person charged with a serious drug offence from also being diverted under this scheme for a simple possession offence that has arisen at the same time, and that is sensible. The reason that is sensible is because the drug diversion system at the moment is not sensible in that it can be applied to a person an unlimited number of times.

I put a bill to this house to propose that if a person was caught with a small, non-trafficable amount for personal use for whatever ridiculous reasons—and I cannot accept that that is necessary—but if they were caught with small personal use quantity of drugs on their person, they would not go to court but they would get an opportunity to redeem themselves and participate in a drug diversion program. If it happened again, they would get another opportunity to do that, to see the error of their ways, get educated, try to improve their life and their whole situation. But if they got done a third time, bad luck, off to court is what I think should happen, but the law at the moment is that that can happen over and over again, and there is a case of one person where this has happened 34 times—that is, 34 times caught with a small personal use amount of drugs. They say, 'I'm really sorry, I'm a terribly bad boy, send me off to a drug diversion program again.'

People deserve a chance to redeem themselves, people deserve a chance to improve, whether it is because they are just going through a dreadful time in their life and they need something to help them recognise that and get out of it or whether it is an addiction or the edge of an addiction problem and they need help to get off of that—no problem, people deserve a chance to get themselves back on the straight and narrow. I would not want to clog up the courts either with sending every single person who was ever caught with a tiny amount of drugs straight to court. However, an unlimited number of opportunities is absolutely ridiculous. When somebody does it five, six, 10, 20 or 30 times, they are either not redeemable—and let's hope they are redeemable—but if they are redeemable the system is not helping them redeem themselves. One way or the other, it is crazy to keep having to send them off.

So, the government knocked me back on that, I think, under very poor judgement. The member for Morialta then, when we changed portfolios and he became the shadow minister for police, tried to do exactly the same thing hoping that the government had a bit more time, seen the error of their ways and really could understand that an unlimited opportunity to go to a drug diversion program was ridiculous. The government could easily have said, 'Look, we understand the principle. We are not comfortable that on your third time you lose the opportunity and you must face a magistrate.' The government, if it wanted to, could have said, 'Oh, maybe it should be the fourth or maybe it should be the fifth,' but it just said, at the time, 'No, we are happy with the unlimited opportunity for people to go.'

It is important to point out that sending somebody off to court does not mean they are going to gaol, it does not mean they going to get their head chopped off, it does not even mean that the magistrate could not, if he or she wanted, decide, 'Do you know what? I still think you deserve another turn.' The magistrate could say, 'You've been caught twice, you've gone—apparently—and participated in the drug diversion program twice, and you have come to me because you've been caught a third time. I actually do think you deserve a third opportunity.' It does not preclude the chance for that person, if a magistrate thought he or she deserved it, to get another go with a drug diversion program. The key thing is that the magistrate would decide, not the offender.

That is a quick summary of the history of how we got to where we are today with the government's bill, which essentially—and I just read a quick summary of it—says, 'Look, if you are busted for both at once, a serious drug offence and a very minor drug offence, then you don't get the chance to just opt for the drug diversions. We will only deal with you, essentially, for the serious drug offence,' whether that be manufacturing or trafficking or dealing, or whatever it might happen to be, but something far more serious than being in possession of just a small quantity of low level drugs for personal use.

I support that principle entirely, but it still leaves wide open the opportunity for somebody who is not caught as a drug dealer—they may, in fact, be a drug dealer but they are not caught as a drug dealer—to just keep going endlessly, an unlimited number of times, off to the drug diversion programs. So I think there is still work to be done in this space, but I certainly support the government at least making the effort they have made at the moment with this bill. I support it, and the opposition supports it.

Mr GARDNER (Morialta) (17:36): I am pleased to speak on this version of the Controlled Substances (Simple Possession Offences) Amendment Bill. I indicate I am the lead speaker. For clarity's sake, I note that this is a different bill to one of the same name that has been previously introduced since the election, and serves a different purpose.

In relation to this bill, in the briefing it was identified that the other bill of the same name was the direct antecedent to this bill being introduced. I remember that on 13 November last year the member for Taylor, speaking on that bill, said:

While the government supports the diversion scheme and opposes the bill, we agree that something does need to be done to deal with people who are clearly abusing the system. For this reason, the government is exploring an alternative proposal involving the use of undertakings.

Currently, health professionals who treat individuals diverted under the scheme are able to compel offenders to enter into undertakings. Such undertakings would set out, for example, what treatment an individual is expected to participate in. A breach of an undertaking automatically results in the prosecution of the original offence.

The government's alternative proposal will enable the prosecution of offenders who do not properly comply with the diversion process or who are not making genuine efforts to get off drugs. The government's proposal will be introduced to the parliament shortly. For this reason, the government will oppose this bill.

I do not particularly refer to the member for Taylor, other than the fact that she was the one speaking on behalf of the government in relation to that matter; my comments are directed at the government. I think this was an undertaking by the government to introduce it into the parliament, as was said on 13 November last year, 'The government's proposal will be introduced to the parliament shortly.'

The fact is that the matter referred to by the member for Taylor on behalf of the government, in relation to undertakings, has now been addressed by the government in a way that has no legislation. This legislation does not go anywhere near dealing with undertakings or anything else, other than, as the member for Stuart described, just dealing with the small matter of those who are charged with serious drug offences and it being ridiculous that you give them the diversion at the same time as you are charging them with something that they are going to get gaol time for. The government did commit that the matter to do with undertakings would be brought to the parliament and instead they have chosen to go down a different path.

After the briefing, when this was established, the Attorney-General was kind enough to write to me to advise the opposition on what was happening in relation to undertakings. I think the importance of it was amply demonstrated by the member for Stuart just a moment ago when we has describing the nature of the undertakings in the case of somebody who has diverted more than twice.

It remains the opposition's view that somebody who has diverted once, commits a similar offence and diverts a second time and commits a similar offence at this point is taking the mickey. They are not taking that diversion seriously. It should go before a magistrate, who can then determine if they are worthy of further diversion or if they should be treated before the courts. The government's approach to this has been dealt with in the Attorney's letter, which I will quote for the benefit of the community and the house. The Attorney wrote:

I understand that it was an agreement to provide you with further information about administrative changes being implemented by Drug and Alcohol Services SA (DASSA) and South Australia Police…to improve the operation of the Police Drug Diversion Initiative (PDDI), as well as answer your query about the Bill's impact on any funding agreement relating to PDDI.

In relation to the changes of the PDDI, I am advised that DASSA, in consultation with SAPol, has implemented administrative changes to the procedures for the PDDI effective from 1 July of this year, so that a person who has been diverted under the scheme more than two times in the previous 24 months will be required to enter into an undertaking. PDDI clinicians also still retain the discretion to apply an undertaking to any diversion at any time, as they consider necessary or appropriate.

An undertaking is an agreed treatment plan that a diverted individual is required to complete pursuant to section 38 of the Controlled Substances Act…It is a more significant health intervention than a standard diversion. It can include treatment, education or any other matter that will assist the person to overcome personal problems relating [to] their drug use. The clinician can apply the undertaking for any period up to six months.

DASSA has advised officers of the Attorney-General's Department that the PDDI Clinician Manual has been updated to implement this procedure. It describes the PDDI procedures and is available at [the Health website]. Attached is an extract of the Manual describing the new procedures following multiple diversions.

I will just read, for the benefit of the house and members of the community, the relevant section which has been updated.

Undertakings

Under section 38 of the Controlled Substances Act…an accredited service provider may require a person to enter into an undertaking relating to their diversion.

The Act states that this may relate to:

the treatment they will receive

participation in a programme of an educative, preventative or rehabilitative nature

or any other matter identified by the clinician that will assist the person to overcome any personal problems relating to their drug use.

It is SA Health policy that an adult apprehended more than two times in a 24 month period must have an undertaking applied to their diversion. However, clinicians also have the discretion to apply an undertaking to any diversion at any time, as they consider necessary or appropriate.

An undertaking is a PDDI intervention that a client is required to complete. It is a more intensive health intervention than the standard PDDI intervention, and should reflect an evidence-based treatment response that is considered clinically appropriate for the individual presenting to the clinician.

An undertaking can include referral to other services, including drug treatment services. However, a referral for drug treatment must be with a drug treatment service that is accredited under the Act. Compliance monitoring remains the responsibility of the PDDI clinician. The program described in the undertaking must be specific, verifiable and include dates where appropriate. A treatment plan must be discussed and agreed between the client and clinician before treatment can commence.

Each treatment plan will be individually tailored to the specific circumstances and needs of the particular client. However, it should represent a more intensive health intervention. An ASSIST score, together with assessment outcomes, can be used as a guide when determining the length and intensity of the intervention.

If a client enters into the undertaking [she or he] must sign and be given a copy of the undertaking.

The clinician must clarify with the client what an undertaking involves and outline the consequences of non-compliance. It is the responsibility of the clinician to verify that actions have been completed, including contacting third parties when required.

The clinician must specify how long the undertaking will apply for, and this should reflect the activities in the program. The Act states that an undertaking can apply for any period up to, but not exceeding, six months. There is no minimum period. With the consent of the client bound by the undertaking, the terms of the undertaking can be varied, but not so that the total period of the undertaking exceeds six months.

The clinician will need to ensure that the conditions of the treatment plan have been met and completed before the client can be signed off as compliant.

If the individual is compliant with the requirements of the undertaking, the client will be immune from prosecution from the alleged offence.

If the individual is non-compliant with the requirements of the undertaking, the matter will be referred back to SAPOL.

An undertaking must include a condition that any additional diversions during the term of the undertaking will result in non-compliance and the matter will be referred to SAPOL. If a client is diverted while on an undertaking, then:

the client is non-compliant with that undertaking

the matter that the undertaking related to is referred to SAPOL

a new undertaking should be applied to the new diversion.

Diversions that occurred before completion of an undertaking should not be counted when determining if three or more have occurred in a 24 month period. However, clinicians retain the discretion to apply an undertaking to any diversion.

I read that detail because the government, despite having identified in November last year in response to the opposition's private member's bill of the same name as this one, and despite having undertaken that they would deal with this matter legislatively, have opted not to do so.

To be clear, while in response to the proposition in relation to which I have just read concerning the matter about undertakings, this bill does not deal with that aspect. The government has instead chosen to use this administrative measure to deal with it, so I thought it was important to read out the detail of that PDDI Clinician Manual as it stands at the moment because it is a different prescription from that which the opposition has suggested is better. The opposition's suggestion is that, upon the third diversion the person, the offender, should face the magistrate.

The government's prescription is that, on the third diversion, there be an undertaking and more detailed health intervention and that noncompliance with that at a future date be then referred to the police potentially, I assume, for consideration before a court. However, under the current act I note it still says that a person will be diverted by police, so I think it is still unclear. At least in the actuality, what is outlined by DASSA is an improvement on what was taking place before. For that reason, we are not seeking to amend this bill to include the provisions; we will keep an eye on how the application of these provisions is undertaken.

The other point is that there is no certainty for the people of South Australia in something that is not in the bill. This is an administrative guideline that can be changed at any time. That is why I read it into the second-reading case, because I think it is useful to be able to hold the government to account on that matter. The bill that we are dealing with today is a bit more technical, so I want to turn now to the detail of how it will be applied. As the member for Stuart suggested, those people charged with certain drug offences—and I will go through them in a moment—will no longer be offered the opportunity to have a diversion if they are also in possession of a small amount of drugs such as would suggest a simple diversion.

To put it in layman's terms, you can imagine if somebody is operating a pill press—and one thinks of the Carl Williams character in the original Underbelly TV series. He was apprehended by police while the pill press was running and he also had some pills in his pocket. The pills in his pocket, presuming they were of the quantity that would normally have somebody diverted, under the current law, he is charged with both the significant manufacturing and trafficking offence because he is running the pill press, and at the same time he has the pills in his pocket and that would attract the diversion. Ultimately, the point that is made by this bill is that there is no purpose in that diversion as well because, frankly, it is just a waste of everyone's time for that diversion to take place. We have a serious drug offence for which the charges are being laid and so that takes primacy. Under this bill, which the opposition supports, the diversion will no longer take place.

In relation to that matter, therefore, I will identify the offences for which if somebody is charged then they will no longer get the diversion. As it states in the bill in clause 4, the diversion is not going to apply to somebody who is alleged to have committed a simple possession offence that would have had the diversion and is charged with a serious drug offence arising out of the same circumstances.

There are a range of offences that are caught up by the term 'serious drug offence'. This is under sections 32 and 33 of the act. We are talking about trafficking, including trafficking in a large commercial quantity, commercial quantity, prescribed area or trafficking in a controlled drug. We are talking about manufacturing of controlled drugs for sale. We are talking about the sale, manufacture, etc., of a controlled precursor which, again, is large commercial quantities, commercial quantities, controlled precursors or a person who has possession of a large commercial quantity, a commercial quantity or someone who has possession of a controlled precursor intending to sell it believing that the person to whom it is to be sold or another person intends to use any of it unlawfully to manufacture a controlled drug.

It also includes a person who manufactures a controlled precursor intending to unlawfully manufacture a controlled drug and intending to sell any of that drug manufactured or believes another person intends to sell that drug. It includes section 33B which is in relation to the cultivation of controlled plants for sale, cultivating large commercial quantities, commercial quantities or a controlled plant intending to sell it on.

Section 33C concerns the sale of controlled plants. It deals with a range of offences involving children and school zones. Under division 3, section 33F, for example, is the sale, supply or administration of a controlled drug to a child; section 33G—Sale, supply or administration of controlled drug in a school zone; and section 33GA—Sale of equipment to child for use in connection with the consumption of controlled drugs. This includes:

A person who—

(a) sells a piece of equipment to a child for use in connection with the smoking, consumption or administration of a controlled drug, or the preparation of such a drug for smoking, consumption or administration; or

(b) has possession of a piece of equipment, intending to sell it to a child for such use.

Any of these people who have those pills in their pocket, in the nature of the Carl Williams example, are no longer going to be diverted under the Attorney's sensible but slight legislation.

Section 33GB concerns the sale of instructions to a child. This includes a person who, without reasonable excuse—I wonder what such a reasonable excuse would be, but I go back to quoting—

(a) sells to a child a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant; or

(b) has possession of a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant intending to sell it to a child,

Section 33H, which will no longer be captured under the diversion principle, is procuring a child to commit an offence. I think from memory section 33I(2), might have been specifically excluded; yes, it is. Section 33I(1) relates to the supply or administration of a controlled drug. That is somebody who:

(a) supplies or administers a controlled drug (other than cannabis, cannabis resin or cannabis oil) to another person; or

(b) has possession of a controlled drug (other than cannabis, cannabis resin or cannabis oil) intending to supply or administer the controlled drug to another person.

Those people are not going to be caught up anymore in the drug diversion scheme and wasting everyone's time and effort in trying to divert somebody for which that more significant offence is the one we should be dealing with.

Section 33J—Manufacture of controlled drugs, is also caught up, which sounds sensible. I suspect that would be the Carl Williams example exactly. Section 33LA—Possession or supply of prescribed equipment—includes:

A person who, without reasonable excuse (proof of which lies on the person)—

(a) has possession of any prescribed equipment; or

(b) supplies to another person any prescribed equipment; or

(c) has possession of any prescribed equipment intending to supply it to another person,

Section 33LAB concerns the possession or supply of instructions. Section 33LB is about the possession or supply of prescribed quantity of controlled precursor, and section 33LD is the intentional manufacture of a controlled drug alternative. That is:

A person who manufactures a substance intending that the substance—

(a) will have pharmacological effects similar to those of a controlled drug; or

(b) will be a legal alternative to a controlled drug,

Sitting extended beyond 18:00 on motion of Hon. J.R. Rau.

Mr GARDNER: I think I was up to section 33LE—Promoting controlled drug alternative. I do hope at this point that the Attorney is just about receiving the messages that he seeks, because we are almost to the end of things that are relevant to this bill or potentially cogent to the debate, and there are other members who will be speaking on this bill in the future. I suspect we will not be able to get to the committee stage of this bill tonight.

Despite the fact that it is not our practice to sit past 6pm on a Thursday, to assist the Attorney in getting the messages he seeks from the Legislative Council, the opposition will potentially extend this friendship for a few minutes. I am certain that the member for Newland has some strong feelings on this bill, and I suspect that he is about to get some advice on the same. Promoting a controlled drug alternative is no longer going to be caught up in the drug diversion scheme. This includes:

(1) A person who promotes a substance—

(a) as having pharmacological effects similar to those of a controlled drug; or

(b) as being a legal alternative to a controlled drug; or

(c) in a way that is intended, or likely, to cause a person to believe that the substance—

(i) is a controlled drug; or

(ii) has pharmacological effects similar to those of a controlled drug; or

(iii) is a legal alternative to a controlled drug,

Anyone who is convicted of that offence is no longer going to be diverted under the drug diversion scheme as a matter of the passage of this bill, because, obviously, the superior, the senior, the more significant offence is the one that takes priority.

Finally, section 33LF is also caught up. That relates to the manufacturing, packaging, selling or supplying of a substance promoted as a controlled drug alternative. This includes:

(1) If a police officer reasonably suspects that a person intends to manufacture, package, sell or supply a substance that is being, or is to be, promoted in a manner prohibited under section 33LE, the officer may give the person a notice…warning the person that if he or she manufactures, packages, sells or supplies the substance he or she will be guilty of an offence.

(2) A notice given to a person under subsection (1) may be revoked at any time by further notice given to the person by a police officer…

(3) A person who has been given a notice under subsection (1) and who subsequently manufactures, sells or supplies the substance specified in the notice is guilty of an offence.

All of those people are no longer going to get caught up in the drug diversion scheme as a result of the passage of the Controlled Substances (Simple Possession) Offences Bill. That is sensible, albeit slight. I know that the member for Newland is eager to speak on the matter. In concluding, I just restate my significant view on the matter.

This bill, I think, is a sign that the government was paying attention during private members' time when the opposition moved the far more significant bill of the same name, which would have sent a strong message to the community about our views on drug-related offending. Of course, the opposition bill would have sent a strong symbolic message and it would have had a strong practical outcome that was supported by just about every police officer I have spoken to about it.

The opposition's proposal would have seen a firm approach taken so that the person who the member for Stuart alluded to who had been diverted 34 times and the person The Advertiser made headlines with because they had been diverted 27 times would face the judge on the third offence, and that is appropriate. The magistrate at that time could potentially seek to give them that other diversion chance if they thought the circumstances were appropriate, but otherwise they would face the law. That would send a message and that would be something that would be easy to manage and everything else.

The government's response has been to do this slight but worthy change that will presumably free up some administration time of the diversion scheme by not having some silly consequential diversions. However, ultimately, it is just an administrative response to go down this undertakings path. We will see how this new administrative approach goes. We will be watching carefully to ensure that there is not a step back from this on the third offence—the undertaking, the more significant health intervention is required. Ultimately, we retain the position that we may at some future stage bring back our original bill, or something like it, if we are unsatisfied with how that is working.

Having said that, I am looking forward to the member for Newland's contribution, certainly at least until we receive the message from the Legislative Council that is so whetting the appetite of the Attorney-General. The opposition supports the bill.

The Hon. T.R. KENYON (Newland) (18:02): There is nothing I like more than talking on a Thursday afternoon after 6pm, I can assure the house of that, but we wait with eagerness.

The DEPUTY SPEAKER: Really? Nothing more?

The Hon. T.R. KENYON: No, nothing. I wait with eagerness for the other place, the place that shall not be named.

Mr Gardner: They will be about 20 minutes.

The Hon. T.R. KENYON: Really? I can't talk for 20 minutes on this.

The DEPUTY SPEAKER: Do you want me to speak on Muriel for half an hour?

The Hon. T.R. KENYON: I am very happy to support the bill the government is putting through. I think it is an important thing that the smaller charges are not used to divert the people who should be going through the criminal process, who are subject to more serious charges. They are using what is effectively a loophole to avoid trial and a possible conviction down the track by using a lesser charge as a way of diverting them to a diversion program.

South Australia is sort of unique in the history of drug law, in that it has always sought to be more lenient on personal drug use than it has on the selling, the production or the growing of drugs for sale and consumption of others. We have sought to be more lenient on personal use, so this bill works along those lines. The state has always sought to make that distinction between personal drug use and be more lenient on that, as opposed to being involved in the supply, the sale and the production of drugs, which is, of course, something that is far more serious.

While diversions are very useful and can be a very useful way of dealing with personal drug use, which I think we do not give enough credit to in some ways, in the way it leads into the drug cycle. I think leniency in that area is something that should be limited and that we need to be wary of.

Mr Gardner: Tom, you've got significant personal concerns about people you have known in your own past who have succumbed to drug use, which is why this area is so important, don't you?

The Hon. T.R. KENYON: I have very serious concerns about people in my own past. I went to Flinders University. I know lots of people who dissolved into drug habits as a result of personal use. In fact, that is where a lot of my opposition to it comes from. It is funny that you should bring that up.

I remember one of my first jobs between school and uni was working at Falls Creek in the snow during the ski season and I shared a flat with a group of people who also worked there, one of whom was a fairly heavy marijuana user. She was a towie. Her job was to get the lifts operating in the morning, sometimes in incredibly cold conditions before 6am. One of her jobs was to de-ice the cables in the morning. That is up high, probably three or four metres.

The DEPUTY SPEAKER: With a gun?

The Hon. T.R. KENYON: No, with an ice pick or a hammer. They would run the cable and you would have to smash it with a hammer to knock the snow off the cable and chairs, at height and in icy, cold and windy conditions. She would regularly smoke a bong or two before she went to do that, and I thought she was putting her life in danger—at least, putting her safety in danger—and that of others operating the tows in the morning.

I have seen numerous people who have got further and further involved in the drug cycle just from personal use, so I have a great deal of concern with personal use of drugs. It is certainly something I would not like to see my children get involved in in any significant way at all. I even fear just experimentation from time to time: who knows how that is going to work out. It is the fear of most parents, I suspect.

It is certainly important to make a distinction between that and being more involved in the wider drug cycle, that is, the selling, the production and everything else, which is something we should avoid at all costs. I think being harsher on those people is important and closing those loopholes that allow people to escape the consequences of being further involved is worthy, and it is a good thing that the government is doing in bringing this forward. It certainly has my support, and I am looking forward to voting on it.

Debate adjourned on motion of Ms Wortley.