Controlled Substances (Simple Possession Offences) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. A.L. McLACHLAN (16:23): I rise to speak to the Controlled Substances (Simple Possession Offences) Amendment Bill. I will be speaking this afternoon on behalf of my Liberal brethren, and we will be supporting the second reading of this bill.

This bill makes some minor amendments to the Controlled Substances Act to remedy an anomalous or illogical application of the Police Drug Diversion Initiative. The Police Drug Diversion Initiative plays an important role in assisting persons who have been charged with simple possession offences. It is aimed at treating offenders for their personal drug use with assistance from health professionals, rather than going through the criminal justice system which may not provide the appropriate tools to help offenders overcome their drug addiction.

The scheme is underpinned by the notion that personal drug use is more appropriately and effectively addressed with a health response, rather than a criminal justice response. The opposition continues to support the initiative and considers the scheme a sensible policy for first-time offenders.

Under the current legislative arrangements, the drug diversion scheme can be invoked in unintended circumstances. Currently, if someone is charged with a serious drug offence, but they possess only a small quantity for personal use, they automatically get referred to the drug diversion scheme for the simple possession offence in addition to facing criminal charges and going through the courts for the serious offence.

The bill seeks to address this by preventing those persons charged with a serious drug offence from also being diverted under the Drug Diversion Initiative. The bill achieves this by amending the application of section 34 so that 'serious drug offences' will be excluded from the operation of the drug diversion scheme. Serious drug offences include, by way of example:

trafficking in a controlled drug;

trafficking in a large commercial quantity of a controlled drug;

manufacturing a controlled drug for sale;

cultivation of controlled plants for sale;

possession or supply of prescribed equipment; or

intentional manufacture of a controlled drug alternative.

There are also a range of offences involving children, for example, the sale, supply or administration of a controlled drug to a child, or in a school zone, or the sale of equipment to children for use in connection with the consumption of controlled drugs. It is therefore appropriate that offences of this magnitude should be dealt with through the criminal justice system.

I note that the government opposed the opposition's 2014 bill introduced by the member for Stuart which sought to limit the number of times an individual can be diverted under the drug diversion scheme, without facing a magistrate, to two. This was designed to address the situations that have arisen where persons were repeatedly diverted but continued to reoffend. For example, it was reported in the media that one person had been diverted up to 27 times, so a need for change in the automatic diversion approach was clearly warranted. The member for Taylor, in her second reading contribution to the 2014 opposition bill, indicated that the government was exploring an alternative proposal involving the use of undertakings.

The government has since advised the opposition, in relation to the bill before the chamber, that Drug and Alcohol Services South Australia (DASSA) has made some internal policy changes to the way the assessments are made in order to enable a stricter treatment of simple possession offenders who offend multiple times within a certain period of time. The opposition has also received advice from the Attorney General's Department confirming this.

The advice outlined, from 1 July this year, that persons who have been diverted under the scheme more than two times in the previous 24 months, will be required to enter into an undertaking. An undertaking is an agreed treatment plan that a diverted individual is required to complete pursuant to section 38 of the Controlled Substances Act. It is more an intensive health intervention than a standard intervention and can include referral to other services such as drug treatment services.

The Police Drug Diversion Initiative clinicians also retain the discretion to apply an undertaking to any diversion at any time if they consider it appropriate or necessary in the circumstances. We need to ensure that offenders are able to have ample opportunity to rehabilitate but also minimise the opportunity for the drug diversion system to be abused. We should continue to monitor the application of the new administrative approach, and I note the Attorney-General's comments during the second reading contributions in the other place agreeing to the same.

If the administrative changes at DASSA fail to achieve the desired outcomes, we may need to address the issue by way of legislative change as was previously attempted by the opposition. I ask one question for which I seek a response in the summing up at the conclusion of the second reading debate. If this bill is enacted and an individual is charged with a serious drug offence and they are subsequently acquitted or the charges are withdrawn, what then happens? Are they then diverted under the Drug Diversion Initiative for simple possession? In these circumstances, I can imagine there is a potentially substantial timing issue given the length of time for some matters to be called on. With this single question, I commend the bill to the chamber.

The Hon. D.G.E. HOOD (16:29): I rise to offer Family First's support to the passage of the Controlled Substances (Simple Possession Offences) Amendment Bill through this chamber. We have quite a unique system in South Australia, which Family First is broadly supportive of, and that is that we have an adult court that encompasses the principles of restorative justice. In most jurisdictions in Australia, these principles are only used in juvenile offending, as I understand it.

I believe it is worth noting that when used appropriately, restorative justice methods actually have very strong results in reducing recidivism and getting offenders to take responsibility for their actions. In some places in the United States, for example, principles of restorative justice are used for very serious offences, such as rape and assault, with some pleasing and positive outcomes.

Looking at the specifics of this bill, though, I have heard varying reports from the drug diversion courts, including when I did a tour of the courts and met with the people involved as to the outcomes that offenders have with the program. Some criminal lawyers have reported that many clients complete the program only to enter a continuing cycle of repeat offending and facing the drug diversion program. This seemingly endless process, as it is for some people—and I too have heard media reports of it being over 20 times in some individual cases—does not appear to provide any benefit to the offender, their family or indeed the community at large. It also suggests that this might not be the best use of taxpayer dollars.

That being said, lawyers do go on to say, of course, that there is a minority of offenders who genuinely benefit from the program. Typically, I am told, those clients who do benefit have reached their 30s, by and large, in a typical example, have children and are fed up with being part of the criminal justice system for many years. Similarly, the magistrate in charge of the diversion program has reported instances where offenders have taken responsibility for and shown insight into their actions which they did not have prior to the diversion program. All of this is to say that there certainly are benefits to the diversion program, but the results appear to be mixed and in some cases limited.

We do have concerns, similar to those which have been raised in the other place, that offenders can engage in the diversion program repeatedly, seemingly without any further legal consequences. Whilst we understand that some administrative changes have been made regarding offenders who front the program for a third or subsequent time in a 24-month period, our concern is that we are continually sending the message to offenders that it is perfectly alright to enter a diversion program in order to avoid gaol.

In short, some people are misusing the system, not resulting in a change in behaviour in any substantial way, and then simply repeating the process. How long can this situation continue? I do not believe this is the intention of the program, nor that it would meet community expectations of what this program should be. I urge the government to do more to ensure appropriate and timely rehabilitation, including mandatory rehabilitation as some experts are now calling for. It should be investigated and trialled; if not to be made a permanent fixture, certainly, we should be examining it at the very least. We simply cannot ignore this issue anymore. Something must be done to improve our current circumstance.

Looking at the bill itself, Family First supports this bill. It makes sense to prevent someone who is charged with both a serious drug offence and what you might call a minor drug offence, that is, possession, from entering the diversion court, especially in instances where it is most likely that the person will serve gaol time for that offence or at the very least face a more serious penalty.

This bill gives clarity to what is considered a serious drug offence, such as commercial offences; offences involving children in school zones; or the supply, manufacture or possession of a controlled precursor, to name just a few. These are clearly serious offences, which come with knowledge and an intentional element by the offender to break the law. In the instance that someone is charged with one of these offences and has a small supply of, say, cannabis on their person, it makes sense that under this bill they would be precluded from drug diversion.

I believe the majority of the community would expect serious offenders and corresponding minor offences to be dealt with in a court that reflects the seriousness of the major offence, as this bill seeks to do. As this bill frees up places in the drug diversion court for those who may well benefit from it and precludes serious offenders from entering the program, Family First supports the bill.

Debate adjourned on motion of Hon. T.J. Stephens.