Statutes Amendment (Drug Offences) Bill

Committee Stage

In committee (resumed on motion).

Clause 1.

Mr ODENWALDER: We talked about the consultation with the Law Society and SAPOL. I know that you mentioned it in your second reading contribution, but can you detail in a more comprehensive way all the written consultation you received before the introduction of the bill and whether those submissions will be publicly available, or available to the opposition or the house?

The Hon. V.A. CHAPMAN: So that we are clear about the whole process in relation to submissions, perhaps I will outline this at present. It might be helpful to the member for Elizabeth for future bills that we deal with.

Sometimes a new piece of legislation has been thoroughly discussed in the community and therefore may not need to have further calls for a lot of submissions. But almost universally, in relation to legal bills, there is consultation within the relevant agencies within government. Frequently, that requires consultation with sometimes other arms of the Attorney-General's office, the South Australian police, Correctional Services and like agencies. It might be Forensic Science SA or the Public Trustee. There are a number of agencies in that regard. As I understand it, in relation to bills that might cover issues such as health or welfare matters, other departments will have an opportunity to make a contribution.

There is a second phase of stakeholders, and they may be invited to make a submission. Generally, the way I understand the previous government operated was that those submissions were generally prefaced with being confidential, unless otherwise that information was released. However, a number of what I would call the usual suspects in relation to consultation on legal matters—such as the Law Society, the Bar Association, the Aboriginal Legal Rights Movement, the Police Association and sometimes the Public Sector Association (PSA)—may have a significant contribution. Another significant area of reform relates to consumer law, apart from the Consumer and Business Services Division under the leadership of Mr Soulio, and a number of different agencies that have industries serviced in licensing and regulation under that portfolio.

In that regard, I start from the premise—and I think this was the position of the former government—that that would be confidential unless otherwise disclosed. What I think is a practice which is reasonable and which is one I frequently used to ask for was: 'Can the government provide us with a list of those entities that have been consulted?' When in opposition, I would get that list and I would then make inquiry of those that I thought were relevant. With some, of course, I would just look at the website and see whether they had made submission or not. Then it is up to the opposition who they want to consult with on the bill or otherwise.

Let us progress on the basis—and I hope this will be acceptable to the member, who I accept will have a principal role in considering the opposition's presentation on these—that at the briefings that will be offered on bills, should the opposition wish to have particulars of who has been consulted, as a general course that will be made available. I think it is then incumbent on you, with or without the advice of your party, to make a decision about whom you wish to consult. Generally, I would email a copy of the bill and the second reading statement to those whose advice on the matter I thought I would value. I would check on the websites of some of them whether they had published anything.

It is fair to say that government agencies, as best I know, do not publish written responses or submissions, nor would I expect them to. If SAPOL sends a submission to us in government in relation to a bill or in relation to amendments they recommend, I would treat that as confidential unless they wished to provide copies. On the other hand, the South Australian Police Association might take the view that they want the opposition or other parties to see their submission. Perhaps we will proceed on that basis.

In relation to this bill, I will just quickly get instructions on who we consulted and see if that can easily be dealt with. I am going to quickly read these, and perhaps for the future you might just ask at the briefings: the South Australian police; Crown Solicitor; Director of Public Prosecutions; SA Health; Department of Correctional Services; Courts Administration Authority; the heads of jurisdiction, including the Youth Court, which in this case, as I said, had nothing specific to raise; the Law Society; the Bar Association; Aboriginal Legal Rights; and the Legal Services Commission. I should just add that, in relation to SA Health, because I think it is an important agency, Drug and Alcohol Services SA (DASSA) understandably had the priority attention to this.

Mr ODENWALDER: You did not say Corrections then.

The Hon. V.A. CHAPMAN: Yes I did.

Mr ODENWALDER: You did say Corrections. Okay, thank you. I appreciate your advice, Attorney, and your mentoring—and I mean that sincerely; I do. I appreciate it. Have either SAPOL and/or Corrections asked for any additional resources during any conversations you have had with them regarding this bill?

The Hon. V.A. CHAPMAN: Not to me—

Mr ODENWALDER: Sorry, if I could rephrase that: have they suggested that there may be a need for any extra resources?

The Hon. V.A. CHAPMAN: Not to me, but I will just check whether it has come to the department. I am advised they have not. Any issue in relation to that, of course, would be ultimately a matter for cabinet to make any decision. But I indicate in relation to this that it has not been raised.

In fact, I think, as I outlined in the second reading response or rebuttal, or whatever we call it in here, the South Australian police have explained to us the extraordinary extra amount of manpower involved in trying to deal with people who really abuse or exploit the system of having the privilege of being able to have an alternative course in the Drug Court. That really has to stop because the police resources in having to prosecute matters, attend at court, or refer the matter off for treatment is exploited by non-attendance or refusing to complete and/or failing, because they continue to use drugs and then you have to come back to court in any event. So they are looking for some relief in the cases where clearly there is no real, genuine attempt to rehabilitate.

Mr ODENWALDER: Perhaps this is the time to ask questions about the expiation notice system, if that is okay. It does not seem to be referred to in any specific way in the rest of the bill, but I think it is potentially affected by the bill. In my second reading speech, I alluded to the expiation notice scheme and what I believe is its importance in dealing with cannabis offences. Is there any plan by the government to alter, by regulation or any other means, the amount of cannabis that is currently expiable, or the dollar amounts of those expiation notices?

The Hon. V.A. CHAPMAN: The regulations have not been settled at this point, but there is no intention to change the general approach. The fine, by virtue of its increment in the bill, is likely to have a change.

Mr ODENWALDER: But not the expiable amount of cannabis?

The Hon. V.A. CHAPMAN: Not in the amount of cannabis, no; I thought you meant the fine. The amount of cannabis stays the same. The expiable process—the on-the-spot fine—is still there and available, as is the caution. I think the member is familiar, through his prior profession, with what they are.

Clause passed.

Clause 2.

Mr ODENWALDER: When does the Attorney intend for this regime to commence?

The Hon. V.A. CHAPMAN: My advice is that it will be in the usual process by proclamation. This one has had some considerable consultation: people know it is coming; it was an election commitment, etc. Nevertheless, if any agency feels they need more time to prepare for a matter, then we will take that into account. One example I remember, as I am sure will the member for Enfield, was when the government of the day decided they needed around two years to prepare and train SAPOL to deal with having a role in intervention orders in family violence matters. As such, there was a very long lead-up until the actual act was proclaimed for the purposes of commencement. In this instance, we are expecting this will probably happen before the end of the year.

Clause passed.

Clause 3 passed.

Clause 4.

Mr ODENWALDER: This may be my lack of understanding of the Controlled Substances Act, but can you please assure me that the definition of 'serious drug offender' can never include anyone convicted of any simple possession offence?

The Hon. V.A. CHAPMAN: That is correct.

Clause passed.

Clause 5.

Mr ODENWALDER: Again, it is only with the same caveat as the last question on clause 4. This comes up time and time again in the act, but what constitutes a 'commercial quantity' of drugs, and is that definition consistent throughout the legislation?

The Hon. V.A. CHAPMAN: The quantities are identified in the national regulation, and that is obviously consistent across the country. It is in the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.

Clause passed.

Clause 6.

Mr ODENWALDER: Thank you—again, the same caveat. Does 'controlled drugs' in this section ever include cannabis?

The Hon. V.A. CHAPMAN: The answer is no. I will foreshadow that clause 8 deals with cultivation.

Clause passed.

Clauses 7 to 15 passed.

Clause 16.

Mr ODENWALDER: Attorney, can you clarify the regime around prescribed plants? How many can be grown before it is deemed a commercial quantity or deemed not for personal use? Is growing one plant, for instance, now under the new regime, punishable by two years rather than six months in prison?

The Hon. V.A. CHAPMAN: While I am seeking the specifics in relation to that, one of the things that changed the dynamics in relation to cannabis growing—not that I am an expert, but because of the helpful advice I have from SAPOL in relation to briefings on this matter and the consequential hydroponics act that we passed in South Australia—is that the development of the cultivation of this drug has been significantly enhanced by the capacity to be able to grow not just a little plant but almost a tree-size in one bucket of water. I do not want to advocate in any way that people move from doing little plants to hydroponics. The hydroponics legislation was introduced to try to shut down operations that were using legitimate vegetable gardens as a forum to advance the development of tree-high or ceiling-high cannabis plants for cultivation.

After briefings on this matter and consenting to the legislation going through this parliament, I vividly recall that we were advised by SAPOL that, when it came to the new compulsory regime of having to be regulated, having to be licensed under the regulation of SAPOL to operate a hydroponics enterprise—so it was up there with firearms—there was a huge exodus of the number of people who were suddenly in this industry. It seemed to have the effect, on the face of it, of encouraging people to undertake another different enterprise, rather than growing cannabis in glasshouses.

That was encouraging in itself. It changed the dynamics about what could be grown out of just one plant and provided a huge output in the crop production. But in answer to the specific question—

Mr ODENWALDER: While we are on that, in response to that, I think the current act differentiates between a hydroponically grown plant and a naturally grown plant in the bedroom or in the backyard. I do not have one in my bedroom.

The Hon. V.A. CHAPMAN: The prescribed number for cannabis under section 33K as set out in the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 is five plants, but to get an expiation notice, you only need to have one. Otherwise, you could be charged. It is a whole new enterprise that the member for Elizabeth is going to embark on.

Mr ODENWALDER: I am compiling my business plan. Just to clarify: one plant is expiable, but any more than one naturally grown plant is not expiable.

The Hon. V.A. CHAPMAN: That is correct.

Mr ODENWALDER: So growing more than one plant is now punishable by two years in prison rather than six months?

The Hon. V.A. CHAPMAN: Yes, if there are less than five plants, then the maximum is two years.

Clause passed.

Clause 17.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–1]—

Page 9, line 16 [clause 17, inserted penalty provision]—Delete 'or imprisonment for 2 years, or both'

I think, for reasons I have already made clear, consultation has identified this as being more than acceptable. We have responded to that and accordingly this amendment is presented.

Mr ODENWALDER: The opposition welcomes this, as I said in my second reading speech. We think this is the right thing to do. The Attorney says, and I have no reason to doubt her, that this is the result of consultation. However, in regard to the community mood, at least on imprisonment—even without the unscientific polls that I talked about and the national drug household survey, or whatever it was called, indicating that 95 per cent of the population think that imprisoning people for simple cannabis offences is a step too far—I would have thought that simply talking to community members would have given that hint to the Attorney and the cabinet. Having said that, I wholeheartedly agree with this amendment.

Amendment carried; clause as amended passed.

Clause 18.

Mr ODENWALDER: If the clause has been amended, do I then get to ask questions on the clause?

The ACTING CHAIR (Mr Duluk): Technically, we have just put and agreed to the clause. Perhaps you could roll it into clause 18 somehow.

Mr ODENWALDER: I could twist it a little. Perhaps I will just ask a question.

The ACTING CHAIR (Mr Duluk): Perhaps just ask a question. The Attorney is in a generous mood today.

Mr ODENWALDER: Yes, we are all friends. Notwithstanding what the Attorney said before about consultation and the complexities around that, and I thank her again for her advice, I wonder if SAPOL were consulted in any way about this particular amendment, the Attorney's amendment. Were they consulted about whether it was necessary or were there any conversations with SAPOL about this particular amendment or the measures that were previously in the bill?

The Hon. V.A. CHAPMAN: I am advised by my adviser, from the department's point of view, no. I do not recall any specific proposal from them on this matter. They already had the bill, which included the imprisonment term in it. I do not recall them contacting us in any way to say this could be a problem or it is going to be difficult.

I am not taking from that that there is ringing endorsement of it. I just make the point that they are not necessarily going to be making comment in relation to what they clearly know is a policy initiative. However, nevertheless, no, I have not had any indication from them that I can recall that was raised on this aspect. I think it is fair to say that, on the occasions I have dealt with SAPOL in relation to sentencing, they have usually had a view that is quite strict in relation to the application of severe penalties where appropriate, so I suppose it is not unusual that I would not have received something from them.

I think it is fair to say that, although the member refers to these snap polls and so on, these surveys that are done, I think they are flooded with a number of people who are very strong supporters of the decriminalisation of cannabis as a controlled drug. The other thing that I should make clear is that there were a number of people who contacted us upon the announcement of this initiative and then the media surrounding the introduction of this legislation.

In fact, when it became a public issue to the extent of whether or not there should be imprisonment, they said to us, 'Please, we appreciate what you are doing. We are very unhappy with what has happened.' They have had a child who has died or been in a situation where they have been in a compromised position as a result of drugs and lost their job, family, and life, really, in lots of ways.

What should not be underestimated is the significance in the community of the heartbreak in families, in the workplace, in marriages and in parental relationships as a result of insidious addiction, and cannabis is not excluded from that. We can talk about the modern drugs or drugs of choice of the moment, but the reality is that there have been a number of people hurt by the imbibing of drugs, as they have been with other addictions—alcohol and prescription drugs, and so on—but generally the public statements surrounding this type of legislation do result in people emailing me, ringing me or sending me letters to say, 'Thank you. We think you need to be strong.'

One chap who is in the fishing industry published a congratulations and then went on to say, 'I don't think you are being tough enough.' There will always be people who have different views. I think we have listened, though, to what is both appropriate and achievable, and I hope that we have achieved a sensible compromise.

Mr ODENWALDER: This is a follow-up from that previous statement. The reason I ask about consultation with SAPOL in relation to this and about Corrections, too, I guess—and I understand that we have amended it now, or we are about to amend it—is that introducing a custodial sentence for an offence that never previously had a custodial sentence presumably sends a message both to the courts and to the police that it is a much more serious offence and they would allocate more resources to it as a matter of course. The courts would need to because the police would as a matter of course, and so that is why I asked those questions.

The Hon. V.A. CHAPMAN: I think that is a question and I think it is relevant but, as I say, they have not come back to us to say, 'We are going to be just swamped with this responsibility. We can't afford it. We need resources.' None of that has come forward. However, bear in mind that the courts, I think, have been helpful in providing data to us to deal with the flipside of this, and that is dealing with the issue of court time and resources of police in dealing with Drug Court trajectories of cases where there has been exploitation of the system to avoid penalty for principal offences. So perhaps they just say that it is a bit of a trade-off, I do not know.

However, I will provide, perhaps, in this opportunity some data that has kindly been provided by the department as to the non-attendance of people who are not complying with their commitment in relation to that option. This is in relation to the restriction that we are placing on two drug diversions. Can I just give you this data from page 25 of 'Ten years of the South Australian police drug diversion initiative':

Compliance rates were also found to be related to whether it was an individual's first or subsequent diversion. Individuals were more likely to comply with their first diversion (83% compliance), than with second or subsequent diversions. In fact, compliance rates appear to continue to decrease as number of diversions increases, with rates of 73% for second diversions, 67% for third diversions, 66% for fourth diversions, and 63% for fifth and subsequent diversions.

This finding is suggestive that the more diversions an individual receives, the less successful the initiative is in engaging that individual in a health assessment…

In relation to the level of recidivism, the reference here is:

Over the ten years that the PDDI has been in operation, 24%…of the 13,627 individuals diverted have been diverted more than once. The maximum number of diversions one person has received is 32.

We have listened to the advice of the police. They were a very good source for us of the fact that there were people exploiting the system. We have acted on it. I think they appreciate it, and perhaps they see any increase in obligation from them as being offset by it. As I said at the second reading—and the minister for corrections will be familiar with this—if we are right and this bill passes, for those apprehended and convicted the new penalties for manufacturing and cultivation at the commercial level are likely to attract a greater term of imprisonment and/or financial sum.

The other thing is that these serious drug offences are also the subject of our confiscation laws, including the prescribed drug offenders amendments that were made last year for the confiscation of assets. To some degree, the minister for corrections does not get any of that money. That goes to the Victims of Crime Fund, or a special hypothecated fund now that was settled upon by the former attorney-general and me. It is called the Justice Rehabilitation Fund. It is an excellent fund, except it still does not have any money in it.

Of course, with the progress of the confiscation of assets amendments that are now in another place and, I hope, receiving consideration as we speak (I am speaking of them glowingly; it is not in any way a reflection on their vote up there), police will actually be able to activate that and confiscate assets. They will not have to take the toothbrush and the worn-out motorbike but can actually take the good assets and fill that fund flush with money to ensure that we assist in drug rehabilitation.

Clause passed.

Clauses 19 and 20 passed.

Clause 21.

Mr ODENWALDER: Attorney, you will be pleased to know that this is my last question. In relation to these three amendments, you talked a bit in your second reading contribution about controlled drug alternatives. I am wondering if you are aware of any convictions that have ever been brought under these sections. Is that a question you can answer now?

The Hon. V.A. CHAPMAN: I am informed that, on the information from OCSAR, which is our statistical unit, there have not been any.

Clause passed.

Remaining clauses (22 to 27) and title passed.

Bill reported with amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:34): I move:

That the bill be now read a third time.

Bill read a third time and passed.