Statutes Amendment (Drug Offences) Bill

Introduction and First Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (15:48): Obtained leave and introduced a bill for an act to amend the Controlled Substances Act 1984 and the Sentencing Act 2017. Read a first time.

Second Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (15:48): I move:

That this bill be now read a second time.

The bill that I introduce today makes a number of changes to the Controlled Substances Act 1984 in fulfillment of several of the Liberal government's election commitments to address the issue of illegal drugs in the community. With the introduction of the Statutes Amendment (Drug Offences) Bill 2018, these election commitments have now been fulfilled within 100 days of the 2018 election and the new government being formed.

This government committed to limit the number of drug diversions to two before a person must be charged with an offence, to increase the penalty for cannabis possession so that it is in line with the penalty for possession of other controlled drugs, and to review the penalties in the Controlled Substances Act to ensure that they are in line with community expectations.

This bill complements another introduced into this house in the last sitting week, which shows zero tolerance for drugs in prisons. The bill makes amendments to several of the penalties for offences contained in part 5 of the Controlled Substances Act. These amendments result from the review of the penalties in the act to ensure that they are in line with community expectations. The penalties were amended so that they are consistent in terms of the fine and term of imprisonment for similar offences.

Many penalties for possession, trafficking and manufacture of drugs have remained unchanged since 1984, when our drug laws were introduced. Over this time, however, the nature of drug crime has changed significantly. Community expectations about punishing drug offenders have also changed since 1984, and our drug laws should reflect that shift. Cannabis is the illicit drug most commonly used by secondary school students, yet it has a maximum penalty of just $500—a penalty that has not increased in 33 years. Further, in actual practice, fines imposed for cannabis possession under 25 grams are only $150. This is similar to the penalty for jaywalking. That is why we will legislate to ensure penalties for drug offences are appropriate and in line with community expectations. This bill confirms the priority.

A two-tiered basic offence has been introduced through this bill for the majority of the offences in part 5 of the act. Where a person meets the definition of 'prescribed serious drug offender', which is based on having a number of past convictions, they will be subject to a higher maximum penalty when convicted of the basic offence. This means that serious, repeat drug offenders can be hit with a much higher penalty.

Several offences have also had an aggravated version of the offence introduced. The aggravated offence applies to those who are members of, or associated with, criminal organisations or who committed the offence on behalf of a criminal organisation. As organised crime is a significant driver of drug crime in this state, it is vital that, where criminal organisations are involved in an offence, those offenders are subject to a much higher maximum penalty. The most serious offences contained in division 3, which involve supplying drugs to children or within a school zone or using a child to commit a drug offence, will be added to the list of serious and organised crime offences in the Sentencing Act 2017. This will prevent the use of suspended sentences for adult offenders convicted of those offences.

Penalties have also been increased for several offences where the penalty was considered to be inadequate. To reiterate, many penalties had not been increased since they were introduced and were no longer adequate to address the modern nature of drug crime in the community. The penalties have also been reviewed for consistency against a scale of penalties that was developed to ensure that fines have a consistent corresponding sentence of imprisonment. Some offences have had minor adjustments to the fines so that the penalty complies with the scale. It is vital that penalties are as consistent as possible across the Controlled Substances Act so that offences of similar levels of severity have similar penalties.

The penalty for cannabis possession has been increased so that it is the same as the penalty for possession of other controlled drugs. This change aligns with the recommendations made by the South Australian Coroner in the 2017 inquest of Mr Lewis McPherson, who indicated that possession and use of cannabis is not harmless. Particularly in relation to young people, it needs to be signalled that it can be quite serious and have negative impacts on their lives. The Minister for Police is all too well aware of this, and that is why he is supporting this bill.

I move now to the final aspect of this bill and policy, which limits the number of drug diversions available. Currently, people found possessing drugs must be provided with the opportunity to participate in an accredited drug diversion program. There is no limit on the number of times an offender can participate in a program, and some offenders have continuously opted to take part as a way of avoiding more serious punishment. A 10-year review of the program revealed that while compliance with diversions was high it tended to decrease as the number of diversions per individual increased. Quite simply, taxpayers' money and police resources have been wasted in the abuse of these programs.

It is unacceptable for people to be able to use drug diversion programs to enable them to avoid facing court for repeated drug offences. The number of drug diversions permitted where a person commits a simple possession offence has been limited to two in a four-year period in this bill. By limiting the number of occasions an offender can participate in drug diversion, this government is sending a message to offenders to take drug diversion seriously. It is an opportunity for them to help them get better.

It decreases workloads by reducing the amount of work that police must do to repeatedly arrange for participation in the programs and frees up drug-diversion resources for offenders more likely to genuinely attempt to utilise rehabilitation services. Regardless of this, offenders who use drug diversion responsibly and get themselves back on track will not be affected. This amendment prevents offenders taking advantage of the system and going through a diversion program again and again and avoiding any criminal penalties for their offending.

In conclusion, I want to reiterate to the house that this government takes drug offending very seriously. The measures in this bill build on those contained in a bill introduced last sitting as part of the Marshall Government's war on drugs 100-day commitment. I commend the bill to members and seek leave to have the explanation of clauses inserted into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Controlled Substances Act 1984

4—Amendment of section 4—Interpretation

This clause inserts a definition of serious drug offender for the purposes of determining the maximum penalty that will apply for certain offences against the Act. An offender that is to be sentenced for an offence is a serious drug offender if the person has, within 10 years of the commission of the offence for which they are to be sentenced, been previously convicted of—

(a) 2 or more offences against Part 5 Division 2 (other than Subdivision 4) or Division 3, being offences arising out of separate incidents; or

(b) 3 or more offences against Part 5 (other than sections 33D, 33DA, 33I(2), 33K, 33L, 33LA, 33LAB or 33LB), being offences arising out of separate incidents.

5—Amendment of section 32—Trafficking

This clause proposes to amend the maximum penalties provided for in section 32 of the Act as follows:

(a) the maximum fine for an offence against section 32(1) will increase to $1,000,000 from $500,000;

(b) the maximum penalty for an offence against section 32(2) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $500,000 or imprisonment for life, or both;

(c) the maximum penalty for an offence against section 32(2a) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $200,000 or imprisonment for 25 years, or both;

(d) the maximum penalty for an offence against section 32(3) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $75,000 or imprisonment for 15 years, or both.

6—Amendment of section 33—Manufacture of controlled drugs for sale

This clause proposes to amend the maximum penalties provided for in section 33 of the Act as follows:

(a) the maximum fine for an offence against section 33(1) will increase to $1,000,000 from $500,000;

(b) the maximum penalty for an offence against section 33(2) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $500,000 or imprisonment for life, or both;

(c) the maximum penalty for an offence against section 33(3) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $75,000 or imprisonment for 15 years, or both.

7—Amendment of section 33A—Sale, manufacture etc of controlled precursor

This clause proposes to amend the maximum penalties provided for in section 33A of the Act as follows:

(a) the maximum penalty for an offence against section 33A(1) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $500,000 or imprisonment for life, or both;

(b) the maximum penalty for an offence against section 33A(2) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $200,000 or imprisonment for 25 years, or both;

(c) the maximum penalty for an offence against section 33A(3) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $75,000 or imprisonment for 15 years, or both;

(d) the maximum penalty for an offence against section 33A(4) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $75,000 or imprisonment for 15 years, or both;

(e) the maximum penalty for an offence against section 33A(5) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $75,000 or imprisonment for 15 years, or both.

8—Amendment of section 33B—Cultivation of controlled plants for sale

This clause proposes to amend the maximum penalties provided for in section 33B of the Act as follows:

(a) the maximum fine for an offence against section 33B(1) will increase to $1,000,000 from $500,000;

(b) the maximum penalty for an offence against section 33B(2) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $500,000 or imprisonment for life, or both;

(c) the maximum penalty for an offence against section 33B(3) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $75,000 or imprisonment for 15 years, or both.

9—Amendment of section 33C—Sale of controlled plants

This clause proposes to amend the maximum penalties provided for in section 33C of the Act as follows:

(a) the maximum fine for an offence against section 33C(1) will increase to $1,000,000 from $500,000;

(b) the maximum penalty for an offence against section 33C(2) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $500,000 or imprisonment for life, or both;

(c) the maximum penalty for an offence against section 33C(3) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $75,000 or imprisonment for 15 years, or both.

10—Amendment of section 33D—Sale of equipment

This clause proposes to amend the maximum penalty provided for in section 33D of the Act as follows:

(a) the maximum penalty for a basic offence will be increased to $15,000 or imprisonment for 3 years, or both;

(b) an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence is added, being $20,000 or imprisonment for 5 years, or both;

(c) an additional increased penalty is added for an aggravated offence, being $20,000 or imprisonment for 5 years, or both.

11—Amendment of section 33DA—Sale of instructions

This clause proposes to amend the maximum penalty provided for in section 33DA(1) of the Act as follows:

(a) the maximum fine for a basic offence will be increased to $15,000, from $10,000;

(b) an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence is added, being $20,000 or imprisonment for 5 years, or both;

(c) the maximum fine for an aggravated offence is to be increased to $20,000, from $15,000.

12—Amendment of section 33GA—Sale of equipment to child for use in connection with consumption of controlled drugs

This clause proposes to amend the maximum penalty provided for in section 33GA of the Act as follows:

(a) the maximum imprisonment that applies for a basic offence will be increased to 5 years, up from 2 years;

(b) an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence is added, being $30,000 or imprisonment for 7 years, or both;

(c) an additional increased penalty is added for an aggravated offence, being $30,000 or imprisonment for 7 years, or both.

13—Amendment of section 33GB—Sale of instructions to a child

This clause proposes to amend the maximum penalty provided for in section 33GB(1) of the Act as follows:

(a) the maximum imprisonment that applies for a basic offence will be increased to 5 years, up from 3 years;

(b) an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence is added, being $30,000 or imprisonment for 7 years, or both;

(c) the maximum imprisonment that applies for an aggravated offence will be increased to 7 years, up from 5 years.

14—Amendment of section 33I—Supply or administration of controlled drug

This clause proposes to amend the maximum penalties provided for in section 33I of the Act as follows:

(a) for section 33I(1), an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence is added, being $75,000 or imprisonment for 15 years, or both;

(b) for section 33I(1), an additional increased penalty is added for an aggravated offence, being $75,000 or imprisonment for 15 years, or both;

(c) for section 33I(2), the maximum penalty for a basic offence will be increased to $15,000 or imprisonment for 3 years, or both.

15—Amendment of section 33J—Manufacture of controlled drugs

This clause proposes to amend the maximum penalties provided for in section 33J of the Act as follows:

(a) the maximum fine for a basic offence against section 33J(1) will decrease to $30,000 from $35,000;

(b) the maximum penalty for an offence against section 33J(1) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $75,000 or imprisonment for 15 years, or both;

(c) the maximum penalty for an offence against section 33J(1) will include an additional increased penalty for an aggravated offence, being $75,000 or imprisonment for 15 years, or both;

(d) the maximum fine for a basic offence against section 33J(2) will be increased to $20,000, from $15,000;

(e) the maximum penalty for an offence against section 33J(2) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $30,000 or imprisonment for 7 years, or both;

(f) the maximum penalty for an offence against section 33J(2) will include an additional increased penalty for an aggravated offence, being $30,000 or imprisonment for 7 years, or both.

16—Amendment of section 33K—Cultivation of controlled plants

This clause proposes to amend the maximum penalties provided for in section 33K of the Act as follows:

(a) the maximum penalty for an offence against section 33K(1) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $5,000 or imprisonment for 5 years, or both;

(b) the maximum penalty for an offence against section 33K(1) will include an additional increased penalty for an aggravated offence, being $5,000 or imprisonment for 5 years, or both;

(c) the maximum penalty for an offence against section 33K(2) will be increased to $2,000 or imprisonment for 2 years, or both.

17—Amendment of section 33L—Possession or consumption of controlled drug etc

This clause proposes to increase the maximum penalty for an offence against section 33L(2) of the Act to $2,000 or imprisonment for 2 years, or both.

18—Amendment of section 33LA—Possession or supply of prescribed equipment

This clause proposes to amend the maximum penalty provided for in section 33LA of the Act as follows:

(a) the maximum penalty will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $20,000 or imprisonment for 5 years, or both;

(b) the maximum penalty will include an additional increased penalty for an aggravated offence, being $20,000 or imprisonment for 5 years, or both.

19—Amendment of section 33LAB—Possession or supply of instructions

This clause proposes to amend the maximum penalty provided for in section 33LAB(1) of the Act as follows:

(a) the maximum penalty will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $20,000 or imprisonment for 5 years, or both;

(b) the maximum penalty will include an additional increased penalty for an aggravated offence, being $20,000 or imprisonment for 5 years, or both.

20—Amendment of section 33LB—Possession or supply of prescribed quantity of controlled precursor

This clause proposes to amend the maximum penalty provided for in section 33LB of the Act as follows:

(a) the maximum fine for a basic offence against section 33LB(1) will increase to $15,000 from $10,000;

(b) the maximum penalty for an offence against section 33LB(1) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $20,000 or imprisonment for 5 years, or both;

(c) the maximum penalty for an offence against section 33LB(1) will include an additional increased penalty for an aggravated offence, being $20,000 or imprisonment for 5 years, or both;

(d) the maximum fine for a basic offence against section 33LB(2) will be increased to $20,000, from $15,000;

(e) the maximum penalty for an offence against section 33LB(2) will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $30,000 or imprisonment for 7 years, or both;

(f) the maximum penalty for an offence against section 33LB(2) will include an additional increased penalty for an aggravated offence, being $30,000 or imprisonment for 7 years, or both.

21—Amendment of section 33LD—Intentional manufacture of controlled drug alternative

This clause proposes to amend the maximum penalty provided for in section 33LD of the Act as follows:

(a) the maximum penalty for a basic offence will be increased to $20,000 or imprisonment for 5 years, or both;

(b) the maximum penalty will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $30,000 or imprisonment for 7 years, or both;

(c) the maximum penalty will include an additional increased penalty for an aggravated offence, being $30,000 or imprisonment for 7 years, or both.

22—Amendment of section 33LE—Promoting controlled drug alternative

This clause proposes to amend the maximum penalty provided for in section 33LE(1) of the Act as follows:

(a) the maximum penalty will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $20,000 or imprisonment for 5 years, or both;

(b) the maximum penalty will include an additional increased penalty for an aggravated offence, being $20,000 or imprisonment for 5 years, or both.

23—Amendment of section 33LF—Manufacturing, packaging, selling or supplying substance promoted as controlled drug alternative

This clause proposes to amend the maximum penalty provided for in section 33LF(3) of the Act as follows:

(a) the maximum penalty for a basic offence will be increased to $20,000 or imprisonment for 5 years, or both;

(b) the maximum penalty will include an additional increased penalty for a basic offence committed by a person who is a serious drug offender in respect of the offence, being $30,000 or imprisonment for 7 years, or both;

(c) the maximum penalty will include an additional increased penalty for an aggravated offence, being $30,000 or imprisonment for 7 years, or both.

24—Amendment of section 34—Application of Division

Part 5 Division 6 of the Act provides for referral for assessment and undertakings of persons alleged to have committed simple possession offences, being an offence against section 33L(1) other than an offence relating to a prescribed controlled drug. This clause proposes to disapply Part 5 Division 6 in respect of a person who is alleged to have committed simple possession offence if the person has been previously referred under the Division on 2 or more occasions in respect of other simple possession offences within the preceding 4 years.

25—Amendment of section 44—Matters to be considered when court fixes penalty

This clause amends section 44(1) of the Act to add to the matters that a court must take into account in determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act. The addition to section 44(1) is, in the case of an offence against section 33, whether a child was present at any stage when the offence occurred.

Part 3—Amendment of Sentencing Act 2017

26—Amendment of section 71—Home detention orders

This clause amends section 71 of the Sentencing Act 2017 to include in that section's definition of serious and organised crime offence offences under section 33F, 33G and 33H of the Controlled Substances Act 1984.

27—Amendment of section 96—Suspension of imprisonment on defendant entering into bond

This clause amends section 96 of the Sentencing Act 2017 to include in that section's definition of serious and organised crime offence offences under section 33F, 33G and 33H of the Controlled Substances Act 1984.

Debate adjourned on motion of Ms Hildyard.