Controlled Substances (Youth Treatment Orders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 July 2019.)

Mr PICTON (Kaurna) (17:09): I indicate that I am the lead speaker on this youth treatment orders legislation proposed by the government, officially titled the Controlled Substances (Youth Treatment Orders) Amendment Bill.

This is a piece of legislation that the government has introduced without knowing how it is going to do it, without knowing what it is going to cost, without knowing the details of it. It is something that it is seeking to do following its election policies. I should say at the outset that this is something the opposition is not going to be opposing in either house. However, we have sought a number of amendments to try to improve this legislation from something that was pretty hastily drafted without going through the full detail of how this was going to occur.

The history of this goes back to what I believe was called the 100-day Action Plan, or some sort of rhetoric like that from the election. One of those items was going to be that the government would have to introduce legislation to set this up within a hundred days of taking office. On this measure, that appeared to be the only sense of urgency whatsoever because, once they rushed in a piece of legislation in this regard, it sat there and it sat there and it sat there in the other place. There was no action to progress this legislation. There was no action to make sure that it was a high priority for the government.

The opposition has been ready to deal with this for a significant period of time, but the government has sought to delay it at every step. There are a few reasons why that could be case. We understand that this has been a matter of serious difference between the Attorney-General and the Minister for Health. There has been a serious difference of opinion between those two ministers, between those departments, about how this would operate, about the circumstances in which it would operate, about how quickly it should be implemented, about what the provisions of the legislation should be. They could be a few of the reasons.

Another reason could be that the government does not really know how it is going to implement this. It does not have a plan, it does not have a model of care devised, it does not have a provider organised, it does not have funding in the budget to do this. They could be the other reasons why there has been such significant delay by the government in implementing this legislation. However, we now have it here before this house after it spent almost an eternity in the other place, and we are some 16 or 17 months now since the election and only have just now begun to debate it here in this house.

This bill is seeking to address a particular issue that we know is a problem, that is, in relation to young people in our community who are afflicted by drugs. That is something I know all of us in our electorates have encountered. We have spoken to families and we have spoken to loved ones who are concerned about their kids, concerned about addictions, which they have sometimes at a very disturbingly early age, to a whole range of substances that fall under the Controlled Substances Act, and that is very concerning.

I think the reason, essentially, why the opposition is not opposing this legislation is that we believe that more needs to be done. We believe that we should be taking as many practical measures as possible. This is the government's way of doing that. It is not something that we necessarily agree with in terms of all of the details—as much as details are actually available, given the comments I made earlier about there not being any details. However, we are willing to look at measures that can help in particular circumstances.

There is significant opposition to the bill in the community from a range of different groups who are concerned about it. I think that is important to put on the record to begin with. There are significant concerns from a range of people who have raised concerns with the opposition and with the government and the crossbench as well. We think that those are matters that need to be fully fleshed out through debate and discussion in this place and the other place. That is why we sought to introduce a whole series of amendments in the other place to this legislation to try to improve it and to get it to a point at which it could work—a point at which it could provide protections for the kids involved in this scheme.

I am delighted to report to the house that a significant number of those amendments were successful. To date, we have not seen any filed amendments to this legislation in this house that I am aware of. I am not sure whether the government accepts what the Legislative Council moved or whether the government is saying that they are not going to deal with it this week and that they are going to wait for the winter break and just have some second reading speeches this afternoon. It has been brought on right at the end of sitting for this week before the parliamentary break, so we will see some amendments come in five or six weeks' time when parliament reconvenes. I am not sure of the reasoning behind that. We may see.

Essentially, the bill that was originally presented was highly deficient. It did not have sufficient detail. It did not have sufficient protections that would enable a proper instrument to be enacted. Following our filing of amendments, the government sought to file some of their own amendments. Some of their own amendments sought to address some of the issues that we had raised and, in a minor way, some of the issues that some of the treatment NGOs and other stakeholders had raised—commissioners, doctors groups, etc.—in regard to the legislation; however, they were nowhere near as strong as the amendments filed by the opposition.

We also believed that this was something that deserved some scrutiny, particularly when it had been sitting around for so long over the summer break. That would have been a good opportunity. It is now well over six months ago that there was a proposition to have a time-limited select committee to look into the drafting of the legislation and whether there were amendments that needed to be filed.

We believe that that would have been an appropriate mechanism to ensure that this bill had been appropriately drafted; however, it was something that the government did not support and we were not able to get that passed, and, in the peculiarities of the upper house, we were not able to get the numbers despite having two of the three crossbench groups joining with the opposition to do that.

However, I think that if we had had a proper parliamentary look at this over the summer break, now well over six months ago, it would have given us a better bill today. It would have given us a proper look at this legislation—a proper avenue to investigate it—prior to its coming to this house, so it is disappointing that that did not happen. From our position in opposition, I think we have done the best that we can to try to implement some improvements to this legislation that will lead us to a better piece of work.

It was interesting that, after that debate happened at the end of the last sitting year—I believe the last week of November or the first week of December—minister Wade filed off a letter, as he occasionally likes to do, to me and cc'd to all members of parliament having a spray at the opposition for daring to propose that we have a select committee looking into this matter. In that letter, he said that, with the understanding that the opposition were going to support the legislation, he was only now going to begin work on the model of care, only after that debate in the parliament back in November/December last year.

Here we have the government elected to office, elected on this platform to implement this, who said it was an urgent need and urgently needed to be addressed, but the government appeared to be so certain that their legislation was going to fail before the parliament that they did not even bother starting work on their model of care until the end of the parliamentary year after the opposition had had the opportunity to give our second reading speech on the legislation.

The government seems completely bereft and negligent when it comes to their responsibilities in relation to their so-called desire to get this legislation through. The health department and the health minister just sat on their hands for seven or eight months and did not even begin discussions in relation to a model of care. A lot of the questions in relation to this bill come down to the model of care. What care is being provided to these kids? What mechanisms are going to be in place? Who is going to provide the care? What contracts are going to be in place with people who will provide the care? Where is this care going to be provided?

All these questions remain unanswered by the government. They are saying, 'Oh, well, we need to look at the model of care to do this.' This government said this was an urgent matter. They were elected 16 or 17 months ago, yet all these questions remain unanswered. From our perspective, we took a policy to the election whereby we were very willing to look at the mechanisms in place. In particular, the policy we were looking at was a trial of detention and mandatory treatment orders for adults. We were looking at some of the evidence from interstate and we were willing to go down that path.

The government have gone down a very different path with regard to young people. It is not the path we had set out, but it is a path that they proposed and took to the election. It is not something that we are going to oppose at this juncture, but it is incumbent on the government to have a plan for how they are going to do this. It is incumbent on the government to have a plan for who is going to do this work and for how much it is going to cost.

We had budget estimates just this week, where we examined the payments that have been allocated in the budget for this measure. It seems quite clear that the government have allocated funding for legal assistance for the kids who would be subject to this but have not allocated any funding for the treatment. There is no funding to treat a single child under one of these treatment orders—not one dollar for that. We asked the health minister about this and he said, 'We need to think about what the model of care is.'

It does not sound as though the government are treating this with particular urgency. It is peculiar because they have set aside money to provide legal assistance for families and young people in this situation but have not set aside any money to undertake the treatment itself. This also goes to the suspicions we have about division in the government on this measure. It seems that the Attorney-General's Department is well funded to roll out its element but that the health department is not well funded or well prepared to roll out theirs.

In fact, the health department is proposing a go-slow on the whole measure, so much so that the original drafting of this legislation, as has become quite a custom of the Minister for Health, sought an exemption from the statutes interpretation legislation, which set out that legislation should be enacted within two years of passing the parliament. They wanted an exemption from that, so it might not ever come into operation. It might sit on the books and not be enacted for many, many years. I think that shows the government's headspace: they are going slow on this measure in its entirety.

Let's remember that this government came to office with a promise of a war on drugs. When he was opposition leader, the Premier said that he was going to 'declare a war on drugs'. What have we seen since then? Absolutely nothing. Take this measure: go slow for 17 months. Sniffer dogs in schools seemed to be the big policy. We have seen no sniffer dogs going around in schools—certainly none in private schools.

We have seen no attempts to improve treatment for people. We have seen very long waiting lists for people who need treatment and the government are not taking any measures in relation to that. Time after time, the member for Elizabeth has come to this parliament proposing measures to try to improve the way in which police can deal with drug matters, and the government have opposed them at every turn. The rhetoric that we had before the election seems to be completely thrown out the window after the election, and this bill is evidence of that.

As the Attorney-General outlined, the bill seeks to create a regime for the involuntary assessment, treatment and detention of young people with drug dependency problems. As I said in the other place, the opposition successfully moved many amendments and supported several crossbench amendments to substantially strengthen the bill. In our widespread consultation on the bill, the opposition received a significant amount of feedback from various stakeholders with concerns about the planned regime that the bill outlines.

We have carefully considered the feedback and filed amendments in an attempt to vastly improve the legislation and provide clarity about what these orders would entail. We were very concerned about the lack of detail and the potential failure of this policy due to the government's incompetence in its drafting. The amendments we filed increased oversight and transparency of detention orders and focused on enshrining the standards of medical treatment available to young people subject to detention orders.

I note in the Attorney-General's second reading speech in this place that she said that the government remains opposed to many of the amendments of the past; yet, as I said, we have not seen any amendments filed by the government to remove those sections from the bill, which, once again, shows the lack of urgency that this government is taking with this legislation, which supposedly they believed was so urgent.

As I said, the government has yet to file any amendments. This complete disregard for these amendments, generated through stakeholder consultation and backed by the crossbench, demonstrates the government's lack of commitment to create a comprehensive and transparent system surrounding these detention orders.

I would like to reiterate some of the comments we have received from stakeholders, which clearly show a strong concern for the lack of clarity regarding the costing and implementation of this legislation. We heard from the Australian Medical Association, SA Branch, who said:

This treatment program, even though conceived as a last resort, would be expensive, and unless additional funds are provided, the AMA(SA) is concerned it would result in a displacement of voluntary clients from the treatment system.

That is a very important point because the government, as I said, has allocated no money for this program. If they continue to allocate no money to this program and this legislation comes into effect without that allocation being made, we are fearful that we could see a significant number of people who are in the system already getting voluntary treatment displaced from their places and being replaced by these people subject to these orders. In effect, you would have no net increase whatsoever in people getting treatment; you would just be displacing other people out of the system who had already signed up voluntarily to get treatment.

That would be a complete disregard for what the government said in terms of their promise to provide this additional treatment. Nowhere in their promise did they say that this is going to be treatment that is just replacing other treatment. They gave the public the impression that this was new treatment and that this was going to be additionally funded. Of course, they did not outline any costings for this before the election and have not done so subsequently. At no time have they suggested that it would be replacing other people's treatment already funded by the system, leading to no net increase in treatment being provided in our community.

The Law Society has said to us, 'It is evident from that consultation there is a lack of affordable treatment and support services currently available.' That goes to the point that not only could this potentially displace other treatment that is being provided in the community but that we actually need more treatment and that there actually is a shortage already. If you take away treatment that is being provided, you add to that lack of capacity that we see and those significant waiting lists that people are facing. You make the problem even worse. We also heard from the South Australian Network of Drug and Alcohol Services who said:

Currently the sector cannot meet the demand for places by voluntary clients. Research shows that involuntary clients require greater resources in terms of time and staffing to provide effective treatment.

That is a very important point as well. Not only could we potentially be taking the treatment away from people who are there at the moment, and not only would that add to the significant waits people face for that voluntary treatment, but the treatment prescribed by this legislation would require substantially more resources, substantially more staff and would have substantially more cost than the treatment already being provided.

You would have a double effect in terms of the cost to the system, if you took away those resources to provide them here because this is going to be a lot more expensive than the other treatment options being provided already. That flow-on effect, the treatment being provided already, is going to be a lot more significant.

Stakeholders also emphasised the need for clinical expertise and involvement in the treatment order process, in the granting of orders, in treating individuals subject to orders and in regular oversight of those orders. Many stakeholders expressed concerns that the bill approached mandatory treatment as if it were a solely judicial matter, not a medical matter. I think the government has tried to be at pains to say that this is all going to be medical, this is all about health care, this is not about judicial or punitive measures.

But I do not think that is quite borne out in the way they have drafted the legislation. The way that they have drafted this legislation is very much a judicial process. It is very much a process by which the courts are very heavily involved. It is very much a process in which the government has been seeking to make amendments that from our look would seek to try to limit this to people in youth detention judicial systems, at least in the beginning. So all those matters combine to make this look like a very judicial matter, not medical, as the minister has been trying to make clear.

Stakeholders also emphasised the need for a multidisciplinary approach. As the Royal Australian and New Zealand College of Psychiatrists put to us:

Young people may be subject to assessment, treatment and potentially detention orders based on substance dependence when they may have issues that are far more wide ranging. Serious consideration needs to be given to the impact of mandatory treatment and potential detention on the health and well-being of the young people this Bill is seeking to target, including impacts on health, education and social development.

Not only do we have an expensive model of care and not only is it going to replace substantially those care and supports already provided to people, unless there is an additional budget being provided, but what the government has not outlined, or not made provision for, is that not only do you need to provide the care and treatment for these people, which we know will be more expensive because it is going to be mandatory treatment, but you also need to care for those people in terms of their other needs. Particularly when we are talking about young people, we need to be providing for their educational needs as well.

There was nothing in the original draft in this legislation that would have dealt with the educational nature of the needs of these people. It is something that we have sought to implement through our amendments to the legislation to make it clear that the government needs to absolutely make clear that education needs to be provided to children subject to these orders. The opposition does remain concerned at the government's apparent unwillingness to properly work through how this bill will be implemented in practice.

The government did support amendments in the other place to ensure that a child can have a family member or advocate present during proceedings and access to government-funded legal representation—amendments the opposition, of course, supported. The government has set aside funding for this representation in the budget which, as I noted earlier, is notable in that it is the only funding that the government has set aside for this measure whatsoever.

So we are funding the lawyers for this process but we are not funding any of the treatment which goes to the point that this government is saying, 'This is all a health and medical matter but we are actually not funding any of that; we are just funding the lawyers.' To date, that is the only costing that we have seen for this bill. The rest remains a complete unknown. There have not even been any estimates provided, which is of course something we will be scrutinising in great detail when we get to the committee stage.

As I said, the government introduced this bill back in June last year. We are now in August 2019 and this bill was introduced in the other place in June 2018. There was no attempt by the opposition to slow this matter down. We have been ready to debate this legislation for a very significant period of time; however, it has been delayed by the choice of the government in how they have prioritised the legislation. To be slotting this in late Thursday afternoon before we rise is the latest evidence of the lack of urgency on this legislation.

When we asked questions about the costing of the orders proposed under the bill back in December 2018, the government said that a model of care would be developed and from there the costing would be considered. That was December last year, they were going to consider the model of care, going to consider the costing. None of that has appeared to date. That is well past eight months now, almost nine months since that promise was made. In May this year, as the debate continued in the other place, it was revealed that an interagency working group set up to create a draft model of care was established only in March 2019. The government, elected in March 2018, set up a working group to investigate how to set up a model of care for this in March 2019.

It took a whole year just to set up a group of public servants sitting around talking about how we are going to do this. That sounds exactly like something from Utopia or The Hollowmen: one year just to get public servants in a room to begin talking about this. You could not devise a more go-slow measure if you tried. The government took this policy to the election as a key commitment a year and a half ago and introduced it 14 months ago, but they only started considering what this bill might mean in practice just five months ago. Then, in the five months since the establishment of this working group, we have heard nothing, absolutely nothing, from the government in terms of what they are proposing.

In the last five months, this working group has not released any discussion papers, has not released any papers, has not put out any contracts for care, has not released any tender documents. There has been absolutely no news from this group. It took them a year to set up the working group, and since it was established five months ago there has been absolutely nothing coming out of that group. Yet we are debating legislation to set this up, and it does not look like the government have any plan for how this is going to happen for a very significant time into the future.

The minister told us that the working group would be considering models of care and associated costs. What has been the outcome of that work to date? What has that working group devised as the cost of this legislation? How many children will be subject to it? Where are they going to be treated? How are they going to be treated? What health professionals are going to treat them? How are those health professionals going to be recruited?

Is this care going to be provided in-house in the government? Is it going to be contracted out to be provided? Is it going to be provided in Adelaide? Is it going to be provided in regional locations? Is it going to be provided in one location or several locations? What is the nature and supporting mechanisms that will be available for people who require treatment under this? All those questions are unknown. All those questions are in this dark box of this interagency working group that has been the go-slow mechanism of this government on this bill.

There is no funding in this budget to implement this bill. There is no indication that the government has even considered where these children would be detained under these orders. We know there are only six residential rehabilitation beds dedicated to children across the entire state. These are run by Centacare and those beds are for voluntary treatment, not for what this bill seeks to establish. Does that mean the government is going to try to change those beds from voluntary to involuntary treatment? From what I am aware, I do not believe there have been any discussions with Centacare along those lines.

Is the government going to try to get Centacare to expand those? Has the government even talked to Centacare about how that would work? If they did replace those six beds with involuntary treatment, what is going to happen to the voluntary treatment that children in South Australia need to be able to access? Are were going to say that the only treatment in South Australia is going to be on an involuntary basis because we have nowhere for voluntary people to be able to receive treatment? There are very significant questions about how that is going to work.

We have heard from multiple stakeholders that placing children under voluntary treatment and children under involuntary treatment in the same facility is very poor practice. What the experts are saying is that you cannot just take that Centacare treatment facility and say, 'In three of those beds we are going to put voluntary kids and three of those beds we are now going to use for involuntary treatment.'

As bad an outcome as that would be, because it would of course be limiting us in terms of our voluntary treatment options, which already have significant wait times attached to them, clearly this is something that the government has not thought through because what the experts are saying is that you cannot combine them. Even if you were to expand the Centacare facility to include additional beds, combining those voluntary and involuntary patients is not good practice whatsoever.

The government's lack of foresight was further evidenced when the government introduced amendments in the other place, creating a two-stage approach, with the bill initially only applying to young people already in detention centres. When the opposition moved amendments to stop the government's attempt to skirt around requirements to put the bill into effect within two years, the government pushed back. Thankfully, the crossbench supported these amendments, but I suspect that the government will attempt to reverse these important amendments in due course.

Why do the government need until August 2021 or later to enact this legislation? Why would they expect parliament to be completely comfortable with passing a bill that may not even take effect for more than two years? The answer is clear: because they still do not know how this legislation is going to work in reality. That is why the opposition has taken the action to try to implement a range of amendments to improve this legislation and to make sure it can actually work in reality.

We passed those amendments, ensuring that children under detention are provided appropriate care. There must be a nurse present in the same premises as the child under detention and a medical practitioner available on call at all times. The child's treatment plan must include treatment from a healthcare professional on each day the child is detained, which makes sense, because why have children in this detention under this order if we are not actually providing any treatment to them each and every day they are there?

As well, arrangements would be made for the ongoing treatment of the child after they have been in detention. It is pretty bad practice if we are bringing in this measure, putting children in these facilities and then saying, 'Once you are out, you are out, and we are not going to care about you anymore after that.' This bill should make it clear that there should be a plan and that there should be measures for after they leave that detention to make sure they receive ongoing treatment and care.

We also established the right for the child to receive family visits when subject to a detention order and the right to continue schooling or other appropriate training. The opposition also passed amendments regarding the transparency surrounding these orders, including creating a requirement for information to be published in the department's annual report, including the number of detention orders made; the age and sex of any child subject to a detention order; the length of time spent in detention; the number of ongoing detention orders at the time of the report; the number of children absconded from detention; the outcomes of each treatment order, including failures to comply; the cost of treatment provided to each child; and the cost of detaining each child.

There were no transparency measures in the original legislation. The opposition has sought to get these amended into the legislation, and I am glad that the other place has agreed with us to do that. These amendments make clear that information is not to be disclosed where it provides information identifying the child, as would be appropriate. We also had a number of amendments that we have agreed to follow up between the houses with the crossbench. The Hon. Frank Pangallo raised concerns in terms of how often a psychiatrist should be able to see a child, and that is something we are happy to work with him on and to be less specific about in terms of the dates and the times we set in our original amendment.

The second deals with issues raised by the guardian and the Hon. Tammy Franks in terms of access to children. The recommendation is that that should appropriately be under the youth training visitor scheme, and we are happy to work on amendments with the Hon. Tammy Franks to ensure that that is the case and that we clarify that matter. These are things that the opposition is doing with the crossbench to improve the legislation because the government have been so derelict in their duty to actually draft some decent legislation in this case.

In conclusion, the opposition is going to support this bill. We are not opposing it because we believe that this is a significant problem in our community. We believe that we need to improve our measures, but we do have concerns about the way the government has drafted this legislation and we do have concerns about the fact that there is no plan, no funding, no outline of how this is going to work in reality. We absolutely will be standing by our amendments.

No doubt when we return after the winter break the government will try to seek to remove them from this legislation, but the opposition will be standing by them. I look forward to discussing this at the committee stage and really examining those questions in terms of how this is going to work in practice, why there have been such delays associated with this, how much funding this will cost and when this will operate. All these remain important questions that the government has not addressed. I look forward to the committee stage of the debate.

Debate adjourned on motion of Mr Teague.