Controlled Substances (Pure Amounts) Amendment Bill

Introduction and First Reading

Received from the Legislative Council and read a first time.

Standing Orders Suspension

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (15:58): I move, without notice:

That standing orders be so far suspended as to enable the bill to pass through all stages without delay.

The DEPUTY SPEAKER: An absolute majority is required. As there is not one, please ring the bells.

A quorum having been formed:

The DEPUTY SPEAKER: An absolute majority being present, I accept the motion.

Motion carried.

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (16:00): I move:

That this bill be now read a second time.

The bill I introduce today is the Controlled Substances (Pure Amounts) Amendment Bill 2022. The bill makes urgent amendments to the Controlled Substances Act 1984 that have become necessary following the decision of the Court of Appeal in the matter of Kingston v The Queen, and Maxwell v The Queen (2022) SASCA 90 (referred to hereafter as the Kingston decision).

The applicant in Kingston made a successful application for a retrial on charges of trafficking a large commercial quantity (200 kilograms in this case) of the controlled drug butanediol, commonly known as fantasy. The ground of appeal that is relevant for the purposes of this bill related to the lack of a pure weight being prescribed for butanediol in the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.

Schedule 1 in the regulations contains a table of controlled drugs for the purposes of the Controlled Substances Act, and schedule 2 has a similar table for controlled precursors. The table sets out the chemical name of the controlled drug and lists the relevant weights for a commercial quantity, a large commercial quantity and a trafficable quantity for the drug. The categories are in some instances further divided between a pure weight and a mixed weight.

The pure weights are generally less than the mixed weights, effectively meaning that a smaller amount of a pure substance than a mixed substance is required to put an offender in a higher category of offence. For example, for methamphetamine, a large commercial quantity offence requires half a kilogram of the drug contained in a mixture but only 0.1 kilogram of a pure methamphetamine is needed to fall into the same offence category.

Overall, about 5 per cent of the controlled drugs listed in the regulations have a pure weight listed. The vast majority have only a mixed weight. This is partially because it is difficult to determine what an appropriate pure weight is for many substances and also because, in many cases, purity testing for the substances is not routinely available.

Prior to the decision in Kingston, matters were generally prosecuted on the basis of the relevant controlled drug or precursor being contained in a mixture, and therefore the mixed weights listed in the regulations were used to determine the appropriate offence category.

In the past, the view was taken that a substance that was anything less than 100 per cent pure was contained in a mixture, even if the substance had not been deliberately mixed or cut with another substance. The presence of manufacturing impurities or other results of natural chemical degradation meant that the substance could not be considered truly pure, scientifically speaking. Charges for drug offences were most often laid and prosecuted on the basis that the substance was contained in a mixture, and therefore the mixed weights prescribed in the regulations were used.

However, in the Kingston decision the butanediol in question was shown to be 98 to 99 per cent pure, with the 2 per cent made up of impurities or chemical degradation, and the court found that, because the substance had not been mixed or cut with another substance, it should have been considered a pure substance. It followed that, because there is no pure weight listed for butanediol in the regulations, there is no relevant offence of trafficking a large commercial (or commercial) quantity of pure butanediol, and only the basic trafficking offence was available.

To put that into perspective, the maximum penalty for trafficking a large commercial quantity of a controlled drug is life imprisonment. The maximum penalty for a basic trafficking offence is 15 years' imprisonment for a serious drug offender or an aggravated offence, and 10 years' imprisonment in other cases.

The decision in Kingston quite clearly has very significant implications for the prosecution of some of the most serious offences in the Controlled Substances Act. Criminals who traffic in huge quantities of controlled drugs and precursors are some of the most serious offenders who are often involved in organised crime groups who make substantial amounts of money off the back of preying on the community by trafficking and dealing in these substances.

It is clear to me that it was never intended that the lack of a prescribed pure weight for a given substance should be taken as an intention to not criminalise trafficking or manufacturing large quantities of pure controlled drugs or controlled precursors. Rather, this is an instance of an unintended consequence of not prescribing a pure weight in the regulations, along with the Controlled Substances Act not containing a definition of what is meant by pure or mixture.

The older type of controlled drugs, such as heroin, cocaine and methamphetamine, can more easily be tested for purity and have both pure and mixed weights prescribed in regulations and therefore are not an issue. However, the new synthetic types of controlled drugs, such as butanediol, are becoming more common and are much more often manufactured in overseas labs and imported into Australia without being cut or diluted.

Controlled precursors are much the same, in that they are purchased in their pure form, not mixed with other substances, but in each of these cases it is common the pure substance may still contain a very small percentage of impurities as a result of the manufacturing process or other chemical contamination or degradation.

Dealing with the issue created by the Kingston decision is not, unfortunately, a question of simply prescribing pure weights for every substance listed in the regulations. Aside from it being a huge task to sit and determine an appropriate weight for all substances listed, it leaves the issue of needing to be able to determine whether or not the substance you are dealing with in a particular case is pure.

As I mentioned earlier, for many of these new synthetic drugs, which are becoming more and more common, Forensic Science SA does not have the testing abilities to conduct purity testing to the level that would be required to prove a sufficient standard whether or not the substance is pure. Because of this, even if pure weights were prescribed for each substance in the regulations, it would not be possible to conduct the required testing on each substance.

Therefore, an alternative approach has been taken to address the issue in the form of this bill. The bill has four clauses and a schedule containing a transitional provision, and the substantive clauses of the bill are clauses 2 to 4. I will also note that there is no commencement clause and that therefore the bill will commence upon receiving assent in order to allow it to take effect as soon as possible.

Clause 2 amends the definition of 'commercial quantity', 'large commercial quantity' and 'trafficable quantity' in section 4 of the Controlled Substances Act. It inserts a new subparagraph (ii) into the definitions which provides that for a drug or precursor not contained in the mixture where there is no pure weight prescribed in the regulations, the mixed weight is to be used.

Clause 3 makes an amendment in the same terms to section 33LB of the Controlled Substances Act to the definition of a 'prescribed quantity' of a controlled precursor. Clause 4 of the bill amends section 33OA of the Controlled Substances Act to insert a clause setting out how it is to be determined if a controlled drug or precursor is contained in a mixture or not. The new section 33OA(3) provides that a controlled drug or precursor is taken to be contained in a mixture unless it is proved beyond a reasonable doubt that the drug or precursor was not contained in the mixture or was in its pure form.

This means that for those substances where it is likely to be pure, such as directly imported butanediol, but there is not sufficient purity testing available, the substance will be taken to be contained in the mixture and so the relevant mixed weights are used. In the rare case, such as Kingston, where for some reason specialist testing has been conducted and it has been found that the substance is pure, the new limb of the definitions in clause 4 is enlivened and allows the mixed weight to be used for that substance when no pure weight is prescribed.

The transitional provision in schedule 1 of the bill provides that the amendments to the principal act contained in the bill are to apply retrospectively. The amendments are taken to apply and to have applied as if they formed part of the principal act from 10 September 2009. This date was chosen as the earliest available date where the definitions of 'commercial quantity', 'large commercial quantity' and 'trafficable quantity' were presented in the principal act in their current form such that the new part of the definition inserted by the bill can be read as forming a part of those definitions. The retrospective application of the amendments is essential to preserve previous convictions that may have been vulnerable to challenge following the decision of the Court of Appeal.

It is the intention of the bill that the amendments made to the principal act will be taken to have always formed part of the Controlled Substances Act since the relevant date and, as a result, it is the clear intention of the bill that the amendments will therefore apply to, first, any proceedings for a relevant offence finalised before the day on which this act is assented to, including, without limitation, proceedings where a conviction or finding of guilt was recorded before that day; second, any proceedings for a relevant offence commenced but not finalised before the day on which this act is assented to; and, third, any proceedings for a relevant offence commenced on or after the day on which this act is assented to.

The transitional provision is vital to the operation of the bill, as it applies to past proceedings and convictions, present proceedings yet to be finalised and, of course, future proceedings covering all possible situations, and ensuring that these unscrupulous drug traffickers and manufacturers do not slip through the net. Applying legislation to operate retrospectively is not a common decision to take. However, the situation that has arisen here presents exceptional circumstances which make it necessary for the protection of the safety of the community.

The retrospective application for the provisions in the bill do not create new criminal liabilities which would catch persons unaware. Rather, the provisions restore the previous understanding that law enforcement prosecution and also defendants had been operating under, which is where there was not pure rate prescribed for a substance, and the substance could not be shown to be pure to a satisfactory standard, the mixed weight was used.

Everyone in the community is aware that trafficking or manufacturing controlled substances is illegal. The individuals and organisations involved in trafficking or manufacturing commercial or large commercial quantities of these substances are sophisticated players and know that their conduct is illegal. The retrospective application of the provisions prevents those persons from taking advantage of an unintended loophole created by the Kingston decision. It is strongly against the public interest for convicted drug traffickers and manufacturers to be able to go back and challenge a previous conviction on such a technical point when the facts of the trafficking and manufacture are not in question.

This bill will ensure that offenders cannot get away with only basic trafficking or manufacturing offences or, indeed, escape conviction altogether when they are in fact dealing with huge quantities of controlled substances and precursors and that they will instead face the appropriate penalties. I commend the bill to the chamber, and I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

The short title is the Controlled Substances (Pure Amounts) Amendment Act 2022.

Part 2—Amendment of Controlled Substances Act 1984

2—Amendment of section 4—Interpretation

The definitions of commercial quantity, large commercial quantity and trafficable quantity are amended so that, in relation to a controlled drug or controlled precursor that is not contained in a mixture (that is, a drug or precursor in its pure form), a commercial quantity, large commercial quantity or trafficable quantity (as the case requires) is—

if an amount is prescribed for the purposes of the relevant definition by the regulations—a quantity of the drug or precursor that equals or exceeds the amount so prescribed; or

if an amount is not prescribed—a quantity of the drug or precursor that equals or exceeds the amount prescribed (for the purposes of the relevant definition) as the quantity for any mixture containing the drug or precursor.

A definition of mixture is also inserted.

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

The definition of prescribed quantity (relating to a controlled precursor) in

section 33LB(5) is amended consistently with the amendments to the definitions in section 4.

4—Amendment of section 33OA—Basis for determining quantity of controlled substance

A new subsection is inserted into section 33OA to provide that, for the purposes of the definition of trafficable quantity, commercial quantity or large commercial quantity in section 4(1) or the definition of prescribed quantity in section 33LB, a controlled drug or controlled precursor will be taken to be contained in a mixture unless it is proved, beyond a reasonable doubt, that the drug or precursor was not contained in a mixture or was in its pure form.

Schedule 1—Transitional provision

1—Amendments apply retrospectively

The transitional provisions provide that the amendments to the Controlled Substances Act 1984 effected by the measure will be taken to apply, and to have applied, as if they formed part of the Controlled Substances Act 1984 from 10 September 2009 (immediately after the commencement of the Controlled Substances (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008).

Mr TEAGUE (Heysen) (16:12): I will be brief and endorse all the words of the Deputy Premier just now, perhaps with the exception that I do not understand the appellants to have sought a retrial. Certainly, the first issue raised on the appeal was the question as to whether or not the trial judge had erred in not leaving to the jury the question of whether the drug was mixed or pure, the consequences of which were that a finding of attempted trafficking, subject to subsection (3) of the relevant section of the act, section 32, would be substituted.

I will read into the record the key observation of the trial judge, which is paragraph 90 of the Chief Justice's reasons. The Chief Justice was the only member of the court to have addressed this matter. At paragraph 90, the Chief Justice referred to the judge's direction as follows:

The Judge's direction that 'the substance contained in the eight drums weighed 200 kg' and that 'as a matter of law…a large commercial quantity…is 2 kg or more' wrongly removed the question of fact, whether the butanediol seized by police was in a mixture or in its pure form, from the jury.

That is the relevant finding by the Chief Justice, and the consequence of that is that the Chief Justice would have allowed the appeal on that ground, having found that the liquid in the containers in this case was not a mixture containing butanediol but, rather, was butanediol in its pure form.

As the Deputy Premier has just explained, the way the table is set out relevantly includes threshold amounts for substances in a pure form on the one hand and for those substances in a mixed form on the other. The table does not, however, include a specified amount of all substances in their pure form, and this is one such substance. So the threshold amount for butanediol in its mixed form to attract the consequences of the quantity-based offences is two kilograms, but there is no amount specified for the pure form.

The judge's direction, as summarised by the Chief Justice at paragraph 90, is, as I understand it, the approach that trial courts have taken for some time: that is, to substitute the mixed threshold where no pure threshold has been specified in the table. The Chief Justice, after setting out the context in the preceding paragraphs of the judgement—from 82 to 90 more particularly—has set out the matter of statutory construction that has created the problem.

As the Deputy Premier has identified, a mixed amount threshold will generally exceed the equivalent pure amount, for obvious reasons, so the court supplying the mixed amount as an amount in default might perhaps be seen to be a practical means of applying a quantity measure that is giving the accused the benefit of the doubt in relation to quantity.

The courts found that as a matter of statutory construction as it presently stands, where there happens to be a pure amount in question and there is no pure amount specified in the table, that rules out the possibility, in this case, of applying either of the two quantity-based offences that are subject to section 32(1) and section 32(2) respectively.

I think the problem is well identified. I think it is also perhaps relevant to note, in the context of this particular substance, that there is no importation offence. It is not a matter that is regulated by the commonwealth in terms of the importation of a chemical, but it is a controlled substance in South Australia and so attracts the consideration of the act, section 32 in particular. What we are dealing with is really the consequences of specified quantities and, in the absence of being able to identify threshold quantities, then penalty provisions are the lesser.

The bill indeed comes along to solve that technical matter of statutory construction. As the Deputy Premier observes, it also unusually would apply retrospectively and retrospectively to that relevant earlier state at which such distinctions have been regulated so as to solve both matters that have been determined and that are in process as well as addressing the future.

I would just further note that this has come on at short notice. It is both unusual that the matter be dealt with in this time frame and unusual that it operate retrospectively in these ways. In those circumstances, I wish to put on the record my appreciation for the Attorney-General's staff and resources, providing as they did an opportunity for briefing at an early stage. They have stayed in contact with me, including through the course of today, in relation to the necessary practicalities of addressing this bill in the house in the way that we are. So I appreciate that opportunity and it certainly assists in terms of being able to proceed in an orderly way in the circumstances that we find ourselves in.

If there is just one further observation that might arise from that opportunity, it is that it is of course possible for the Crown to have appealed the decision of the Court of Appeal, sought leave to take the matter to the High Court and, in turn, to test the decision of the Court of Appeal. While I would ordinarily be attracted to that orderly course, the fact that the government is presenting this bill with a view to addressing those circumstances perhaps highlights the practical urgency of the consequences of the Court of Appeal decision.

So, for those who might otherwise be interested in any appeal process and consideration of a higher court, that will be addressed by this bill and therefore render any consideration of appeal unnecessary. It is in all of those circumstances that the opposition supports both the substance of the bill and its hasty passage through the house.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (16:22): I thank the honourable member for his contribution to the discussion today and I look forward to the swift passage of this bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

Mr TEAGUE: My question relates to substituted subsection (b)(ii), or perhaps (b)(i) as well, and the subsequent definition, so` both of those substituted definitions—commercial quantity and large commercial quantity. This is perhaps for the record more broadly, but is there any explanation as to why both drugs and precursors are not comprehensively categorised in their pure form as well as their mixed form?

The Hon. S.E. CLOSE: I think the answer was largely canvassed in the second reading speech, but just to be more explicit, the testing capability for purity in South Australia is not sufficient to be able to test some of the newer drugs. There is a logistical challenge involved.

Secondly, and importantly, it is difficult for Forensic Science to be able to determine exactly what an appropriate amount is for purity, particularly for these newer drugs. We do not see many of them, and so it would be a difficult and somewhat arbitrary decision to be making.

Clause passed.

Clauses 3 and 4 passed.

Schedule 1.

Mr TEAGUE: The question is in the context of these amendments applying retrospectively. Is there an indication the government can give as to the number of cases that this will now affect in terms of perhaps three categories—in the works currently before the courts and, thirdly, determined cases? The third one might be hard one.

The Hon. S.E. CLOSE: We will do our best to answer, but we do not have a definitive answer on that. One of the challenges is that the DPP system does not record the substance, only that there has been drug trafficking. So it would involve having to go manually through all of the matters to determine—particularly looking for butanediol as being the most obvious one. However, the forensic sciences have been contacted on the matter of about 13 cases. So, while by no means pretending that that would be definitive, it does at least give an indication that there are certainly matters on foot that would be affected.

Mr TEAGUE: Perhaps arising from that—I had not thought of it in those terms, but arising from the answer—despite the fact that there are a number of substances that do not have a pure form prescribed, how much is this problem really confined to one or two substances or perhaps just this one in a practical sense—butanediol in this case? Are they all butanediol related, or is it a range of substances? Does this one really dominate the field?

The Hon. S.E. CLOSE: It does appear that butanediol is the dominant substance in the inquiries that are being made, but some have been GHB. I presume more generally there are new drugs coming out and therefore there will be substances that will be affected by this that we do not yet have examples of.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (16:31): I move:

That this bill be now read a third time.

Bill read a third time and passed.