Statutes Amendment (Drug Offences) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 October 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:30): I rise today to indicate Labor's support for this bill. The bill makes a number of amendments to the Controlled Substances Act, including limiting the number of drug diversions to two in four years, reviewing penalties in the Controlled Substances Act more generally and increasing other penalties.

The increasing of penalties for cannabis possession is something we would like to expand on a bit more. The current penalty for cannabis possession has a maximum of $500. The bill, as it was originally introduced, increased the penalty for cannabis possession to $2,000 or two years in gaol, or both. It is worth noting that, while the bill introduces gaol time for cannabis possession, that was not part of the Liberal government's election commitment, which stated that 'a Marshall Liberal government will firstly ensure the maximum penalties for cannabis possession are increased from the current $500 to $2,000'.

What we have seen is a welcome but remarkable backflip from the Attorney-General when she faced a huge backlash over trying to impose gaol time for simple cannabis possession. That move was out of touch with community expectations and completely out of touch with what the South Australian community expects.

We received much correspondence from concerned parents that one simple mistake from one of their children, for a single, first offence of cannabis possession, could land that person in gaol. We at the time, as a Labor opposition, opposed that and, along with a number of crossbenchers who also sensibly saw that as an extreme overreach, have forced the government into a backdown to remove gaol time as a possibility. That measure in the bill was also out of touch with recommendations made by the Australian Medical Association.

In summary, the bill was inconsistent, as originally put, with the Liberal Party's election commitment. It was inconsistent with community sentiment and was out of touch with the AMA. Perhaps the Treasurer, who represents the Attorney-General here, can explain why that provision was inserted in the bill originally, and then perhaps explain why that provision was taken out. It is understood that there was quite a backlash in the Liberal party room, which resulted in this very embarrassing backdown from the Attorney-General to take out what was a dramatic overreach.

The Minister for Education made the second reading speech on behalf of the Attorney-General in relation to this bill when it was introduced in another place. The minister advised that people who have been found to be in possession of drugs must be given the opportunity to participate in an accredited drug diversion program under the current regime, and expressed that there is no limit to the number of times an offender can participate in these programs and that some offenders, in the view that was put forward, use participation in these programs as a way of avoiding more serious punishment.

This bill limits the number of drug diversion programs a person can participate in to two in four years. It is understood that, following consultation, the Liberals reduced the number of drug diversions to two in a four-year period from two in a 10-year period, which I understand was originally contemplated. Again, the Treasurer, who represents the Attorney-General in this place, may wish to comment on why that change of heart came about also.

The Attorney-General's Department has advised that these amendments will see approximately 1,400 fewer people receiving drug diversion and entering the justice system instead. At the time we received a briefing, it was unknown what impact on the corrections system this was going to have. Are we going to see an increase in people being incarcerated, and for what kinds of offences? On this one, we would seek an answer to the question very specifically, if the Treasurer would outline what impact the 1,400 fewer people receiving drug diversion will have on our justice system, particularly on our corrections system.

The bill also introduces two additional offences: a higher maximum penalty for serious repeat offenders and an aggravated offence for offenders who are associated with criminal organisations. Penalties have also been increased for a number of other offences including trafficking, the manufacture of controlled drugs for sale, the sale and manufacture of controlled precursors, and for a range of other measures that have changed since the introduction of serious or aggravated offences.

With the changes the government was forced to make, I indicate Labor support for this bill. In particular, we note and welcome the fact that the government was forced to back down on imprisonment as an option for a first time, simple cannabis offence.

The Hon. M.C. PARNELL (16:35): For more than half a century governments have aggressively pursued a disastrous war on drugs policy that criminalises a health problem and that has only succeeded in making things worse. These policies are causing harm. They are killing our young, and it is time for a complete rethink. However, I am sad to say that the old parties do not have the courage to take on this issue.

The Greens have been leading in this area. We have a new, realistic and evidence-based approach to drug policy, one that reflects the reality of people's choices about using drugs in Australia. In particular, the Greens are on the record as supporting pill testing at music festivals, we support the removal of sniffer dogs, and we support regulating cannabis for adult use. The Greens' policy would revolutionise the way we handle these health problems in this country and would restore Australia's reputation as a leader in innovative drug policy.

It is not a policy that the Greens hold on their own, and I will refer to some of the other authorities that support our position. Some few months ago now Greens leader Senator Richard Di Natale announced the party's plan to legalise cannabis for adult use. Dr Di Natale described the current approach to drugs in Australia as an unmitigated disaster. He said:

The war on drugs has failed. Governments around the world are realising that prohibition of cannabis causes more harm than it prevents. It's time Australia joined them and legalised cannabis for adult use. We need to get real about cannabis. Almost seven million Australians—

I understand the current process is that when a big number is mentioned the Leader of the Government, as a Greek chorus, chimes in and repeats the number, so I will do it myself as no-one else is doing it for me—

seven million Australians have tried…cannabis socially but right now just having a small amount of cannabis in your possession could get you a criminal record.

We know that cannabis accounts for most illicit drug arrests across Australia, and cannabis arrests and consumption are growing each year, so prohibition has failed. Using cannabis remains illegal, but this has not stopped Australians from using it.

Like a number of members here I have spoken on talkback radio, and this is an issue that often crops up. I remember, on talkback radio, talking to a grandparent and putting this question to them: 'Which third of your grandchildren are criminals?' The response was, 'None of them are criminals, they are all good kids.' Well, statistically one-third of them are criminals, and that is a statistic that Australians need to pay close attention to. The number of people who have admitted to taking cannabis is seven million, but my feeling is that it is probably higher.

As people know, the leader of the Greens, Dr Di Natale, has been a drug and alcohol doctor. He says:

I've seen that the 'tough on drugs' approach causes enormous harm. It drives people away from getting help when they need it and exposes them to a dangerous black market.

The Greens have always seen drug use as a health issue, not a criminal issue. The plan we announced earlier this year was to create a legal market for cannabis production and sale that will reduce risks, bust the business model of criminal dealers and syndicates, and protect young people from unfair criminal prosecution. I think we have the bulk of Australians with us on that.

In a poll last year, 55 per cent of Australians said they believed cannabis should be taxed and regulated like alcohol or tobacco. I make the point, as I have a number of times in this place, that if we were serious about passing laws that were focused on where harm lies, alcohol and tobacco would have been outlawed years ago. Between them, they kill thousands upon thousands of people every year—alcohol and tobacco.

The difference is they have become socialised, we are used to them and they have been around for a very long time as opposed to drugs that are seen as newer and less socialised. We outlaw those, but certainly none of the existing policies are based on evidence. The President of the Australian Drug Law Reform Foundation, Dr Alex Wodak, said:

Banning cannabis hasn’t reduced its use or availability yet it has distracted police from following up more serious crimes, harmed a lot of young people and helped make some criminals rich…

Regulating cannabis will give government more control and increase government revenue, which can be used to fund drug prevention and treatment.

There is an alternative approach to the provisions in this bill, but do not just take my word for it. Let us hear what some of the other stakeholders have said. I will start with the Law Society. Their submission from 14 June this year was based on the version of the bill that the Leader of the Opposition referred to before. It has since been watered down slightly, but the basic principles in their submission remain the same. The Law Society states:

Contemporary medical science recognises substance dependence and behavioural addiction as primarily health problems. The ability to divert a person out of the system and instead direct them to counselling is an important recognition that drug addiction is a medical issue rather than a criminal issue.

The Law Society goes on:

Substance dependence and behavioural addictions are recognised as chronic diseases of the brain’s reward, motivation, memory and related circuitry. Due to the nature of drug addiction, it is difficult for those who become dependent to overcome their addiction on their first attempt. Therefore, a person may require multiple diversions depending on the degree of their addiction, and other matters such as their environment and any relevant risk factors.

Another observation from the Law Society states:

The Society notes that this legislation is part of the Government’s 'winning the war on drugs' policy. The Society considers that the proposed Bill is at odds with this policy, and questions how restricting the opportunities for a person to receive treatment or counselling in relation to their drug dependency, will ultimately serve the greater objective of winning the war on drugs.

It goes on:

The Society considers that insufficient evidence-based justification has been provided for increasing penalties or limiting drug diversions. The Bill, in our view, fails to sufficiently recognise that drug addiction is a health issue rather than a criminal justice issue.

The Society is informed by its Criminal Law Committee that clients are often unable to access treatment programs due lack of availability of programs and that the cost of undertaking such programs can also be a prohibitive factor. This is further supported by the AMA who acknowledge that in most instances, demand for treatment outweighs availability, which can result in long wait times to access treatment.

The Society suggests a shift of focus from punitive measures, which will put an already over-capacity criminal justice system under further strain, to a focus on and investment in, treatment and rehabilitation. The Society considers in order to 'win the war on drugs', the medical and social issues that underpin drug addiction must be addressed.

That is under the hand of Tim Mellor, President of the Law Society of South Australia. One thing, also, that also struck me about the way we do legislation in this parliament is that, especially in the lead-up to and following an election, parties take populist positions, positions that they think will win them a few votes and then, having made the promise, even when they do form government and have access to a vast array of research and medical evidence, they say, 'Well, we sort of promised, so we'd better do it.'

I, for one, am more than happy for governments to be held to their promises when they make sensible promises. When they make stupid promises, I am more than happy for them to come clean and say, 'Look, we thought it was a good idea before the election. Now we are in government and we have access to all this expert evidence, we have now realised that it's not a good idea and we're not going to proceed with it', but that does not appear to be any part of political practice.

The other thing we do in this state and in this parliament is that we pass important social legislation without inquiring in any depth into what its implications might mean. I contrast that approach with the approach that is taken in other states. I note that recently in Victoria, they spent a year with a parliamentary committee looking at just these issues.

I had a quick look at the Victorian report. The first thing I found is that there was not a single Green on the committee; it was pretty well Liberal, Labor and other crossbenchers and did not involve the Greens. After a year of evidence, what did they recommend? Recommendation No. 13 was that the Victorian government should, and I quote:

…treat the offences of personal use and possession of all illicit substances as a health issue rather than a criminal justice issue.

That is what you come up with when you talk to the experts and you have a proper look at it. What do we do here? Table a bill. A few people, like me, stand up and read a few stakeholder statements and then it is voted on. It is a very poor way to pass legislation. We really do owe the people of South Australia much better service than we provide them with.

The Greens are not at all happy that this bill is going to go through, it seems, and probably without amendment. I filed and put on the record three clauses that are, if you like, indicative of the main problems with this bill. The amendment simply says that these clauses will be opposed. The three of them relate to the simple offences of possession and growing cannabis plants, for which the penalties are being increased, and also this ridiculous notion that a person has worn out the patience of the state by seeking more than two diversions in four years. That is just a ridiculous proposition.

My challenge to honourable members, especially those who may have smoked tobacco or cigarettes: how many of you gave up on your first attempt? How many of you gave up on your second attempt? We understand from the physiology of addiction that very few people manage to break addictive behaviours at the first, second, third and sometimes even fourth or fifth attempt.

The idea of saying to people that they only get two tries at breaking their addiction and after that go straight into the criminal justice system with no more leniency or latitude is just an appalling way to treat people who, in many instances, are desperately keen to improve their health and to get into behaviours that are better for them than a life of addiction. We know that it can be dangerous and can take hold of people's lives, and we certainly do not want to wish that on anyone.

The Greens have put forward those three clauses as a test, if you like, of whether there is anything at all worth supporting in this bill. There are some other provisions in there that we do not find as offensive, but certainly, at the heart, the bill is flawed in its philosophy. We would urge this council to save the government from itself. They may have promised this in their first 100 days, but I think it is the responsibility of this council to help them through the dilemma they have got themselves in and to oppose at least the most egregious parts of this bill.

The Hon. J.A. DARLEY (16:48): I rise today to speak on the Statues Amendment (Drug Offences) Bill. This bill increases the penalty for drug offences, introduces the new concept of a prescribed serious drug offender and also creates aggravated offences in certain circumstances.

A person will be considered to be a serious drug offender if they have been convicted a number of times of certain offences within the past 10-year period. I understand the reasoning behind this is that these people would be regarded as recidivist drug offenders who have not been rehabilitated and continue to offend against the community, notwithstanding the fact that they have been convicted before. A person will be seen to have committed an aggravated offence if they are a member of or associated with declared organisations.

The government is seeking to increase the maximum penalties for drug offences. Their reasoning for this is to bring the penalties in line with other criminal offences and to reflect the community's attitude to drug offenders. These penalty increases include the penalty for possession or consumption of cannabis, which will be increasing from $500 to $2,000.

Globally, we have seen a move towards legalising cannabis, especially for medicinal use. Nine states in the United States have legalised cannabis for recreational use, as has Canada, South Africa and Uruguay. In 2016, our commonwealth government allowed for the cultivation of cannabis for medicinal and scientific purposes; however, every week we hear of consumers who are frustrated at the difficulty they are experiencing in terms of accessing medicinal cannabis. The attitude towards cannabis is shifting slowly, and I do not believe it is a step in the right direction to increase the penalty by 400 per cent.

The bill also limits the number of times a person can go through the drug diversion program to two occasions within the preceding four years. I understand the reasoning behind this amendment is that people should be given the opportunity to rehabilitate themselves; however, drug diversion programs should not be seen as an easy way out for repeat drug offenders. I have asked about the success rates or the completion rates of these programs; however, I was advised that these statistics are not collected. This is curious, and I would be interested to find out if there is a high level of completion or dropout. If the latter is true, it may indicate that there is a need for the program to be reviewed.

I support the bill but would like to put on the record that I will be supporting the Hon. Mark Parnell in opposing clause 17.

The Hon. C. BONAROS (16:51): I rise to speak on behalf of SA-Best in broad support of the Statutes Amendment (Drug Offences) Bill, which aims to send a clear message that the use, sale, manufacture and cultivation of illicit substances will not be tolerated in South Australia. SA-Best supports the strong signal the bill sends, that drugs are not acceptable in our society, and it is entirely consistent with the long-held policy on drugs of SA-Best and our federal colleagues Centre Alliance.

We should all be alarmed that the United Nations World Drug Report 2018 identified Australia as having the highest prevalence of the use of cocaine, ecstasy and ice and the second highest prevalence of the use of opioids and cannabis in the world. Sewage analysis has revealed Adelaide as Australia's methylamphetamine capital after the city was found to have the highest level per person of any state. Unfortunately, not much has changed in this area in recent years. The damage this is causing, particularly to our young, is undeniable and the failure of our efforts to date in addressing this scourge is also undeniable.

Australia has the highest proportion of recreational drug users in the world and yet the message is just not cutting through, especially to young people. Drug labs are operating in our suburbs, and bikies are heavily involved in the production, supply and trafficking of illicit drugs. In recent hours, the ABC has reported that authorities have seized 15 kilos of heroin from an Adelaide property, which is believed to have been the largest seizure of that drug in the state of South Australia ever.

According to that report, serious and organised crime branch officers also found a kilo of cocaine in packages at the property in question. Another home was also searched by officers, who found cash and equipment which they will allege was used in the preparation of the sale of the heroin and, I believe, the cocaine that has been found. That should be alarming to all of us. It is obviously a good thing that our serious and organised crime branch officers have made that find, but it is certainly alarming to hear stories of that sort of quantity of drugs being found in our suburban homes.

The use of dark websites to sell and purchase drugs has been rapidly adopted here, with Australia accounting for 11 per cent of global dark web drug revenues. As sites such as Silk Road, AlphaBay and Hansa are shut down, drug markets quickly migrate to new sites. The new category of aggravated offences in this bill that targets offenders linked to organised crime, who are often behind these sites and activities, goes some way to addressing this issue. The inclusion of a new type of offence referred to as 'serious drug offending' in this bill is also welcome.

The increases in fines and maximum terms of imprisonment expressed throughout the bill, with some exceptions for more serious offences, are well overdue as appropriate and effective penalties and deterrents. I do stress 'with some exceptions', along the lines of those outlined by the Hon. Mark Parnell. They more accurately reflect community expectations and let the Mr Bigs know that the supply of illicit drugs will not be tolerated and that hefty penalties will be applied.

We believe that the serious harm that non-medicinal cannabis and other illicit drugs can have on those who use them has been underestimated in Australia, as it was throughout the world during the 1970s and 1980s. The United Nations convention on drugs notes that cannabis is classified as a narcotic drug that requires the strongest controls and that all countries should treat cannabis as a dangerous substance.

We believe that it is a mistake to characterise cannabis as a harmless recreational drug, because we know it can be very harmful and it can be very addictive, especially for minors. On the one hand, we have those countries that have moved towards decriminalising cannabis offences and making it a perfectly legal recreational drug. On the other hand, we have medical literature that tends to support the argument that cannabis can cause psychological illness in both the long and the short term and that it can have an impact on the IQ of people who start using it at a young age, with permanent impairments that can follow.

I think it is fair to say that there is clear division on the issue of cannabis, but I would like to point out for the record that SA-Best has made it abundantly clear that we do support the use of medicinal cannabis. This should not be confused with the use of illegal cannabis or the sale, manufacture or cultivation of illicit substances dealt with in this bill. SA-Best and the Centre Alliance are on the record at both state and federal levels as being overwhelmingly in support of medicinal cannabis and easier access to such treatments.

This is an issue that is very important to me personally and one that I am committed to doing whatever I can in relation to, to ensure that people who need treatment the most are not unduly burdened in accessing medicinal cannabis treatments. The irony of that is, obviously, that if you are unduly burdened in accessing that medicinal cannabis, then you are more likely to access cannabis in illegal forms and so we are not by any stretch addressing the issue of ensuring that people have appropriate access.

At a federal level, we have made it abundantly clear that we cannot continue to allow terminally ill patients to suffer unnecessarily by restricting that access. We did so, I think it was late last year, by voting in favour of reforms proposed by the Australian Greens aimed at ensuring that Australian medicinal cannabis and imported cannabis are available to those who need them most.

We recognise that there is a very valid place for medicinal cannabis, and we also accept that some of the penalties proposed in this bill in relation to cannabis are out of touch with community expectations, but there is a fine balance and our aim, I suppose, on this side of the crossbench is to try to strike that balance.

We have all been distressed to hear of the tragic deaths of young people at music festivals from drug overdoses. In our office, we have had constituent teachers in metropolitan and regional South Australia telling us that not only are students as young as 12 coming to school affected by cannabis, ice or other illicit substances but they have sometimes been driven to school by parents who would fail a drug test. Our children have a human right to grow up in a drug-free environment.

I would say this: anyone with any experience with drug abuse knows all too well about the devastating impacts drugs can have not only on the user but on their families, their friends and their loved ones. The additional protections for children provided by the new category of aggravated offences in this bill are strongly supported by SA-Best. In essence, we are saying this bill is a step in the right direction, but what else can we do about this wicked problem? SA-Best and our federal colleagues have for some time advocated that we need to look to best practice and policies that have worked elsewhere to tackle this insidious problem.

Our policy is that the best example we have been able to find are the initiatives that have worked well in the Swedish drug policy. Sweden's drug strategy incorporates a balanced evidence-based approach of zero tolerance, prevention, deterrence, treatment and rehabilitation. In Sweden, they have learned that it is critical to reduce both the supply and demand for illicit drugs via a range of initiatives, and they are well on the way to achieving their objective of a drug-free Sweden.

David Perrin, Executive Officer of the Drug Advisory Council of Australia and National President of the Australian Family Association said this about Sweden, and I quote:

Sweden targets its drug policies at teenagers to stop them trying drugs and, if they get hooked, to get them off drugs quickly and permanently. Sweden's experience is that if a young person has not taken an illicit drug by age 20, he or she is highly unlikely to use illicit drugs later in life. Australia has high levels of illicit drug use, similar to most of Europe. We have adopted permissive 'harm minimisation' policies which have led to high levels of demand for illicit drugs, with new drugs such as 'ice' (methamphetamines) coming on the scene…

Sweden is not on a known drug route, so drug crime syndicates avoid trafficking to Sweden because of the difficulty involved. High prices, few outlets and strong drug policies deter the supply of drugs. Like Sweden, Australia is not on a known drug supply route; but we have weak policies, low drug prices and a permissive culture that accepts the use of drugs.

These are quite telling statements from someone in the know, and they support the argument that the Swedish example demonstrates; that is, when drug abuse is tackled head-on with strong, decisive and targeted policies it can have a big impact. There is no question that Sweden's drug policy is harsh, but the proof is in the pudding.

Sweden has succeeded in their drug policy because they have reduced both supply and demand. They have reduced the number of drug users, hence the demand for illicit drugs by providing preventative and treatment programs, and it is an extraordinarily harsh program. It has properly resourced drug rehabilitation treatment—something we could learn a lot from because our drug rehabilitation programs in South Australia and Australia are far from appropriately resourced—and it has detoxification programs that their courts can mandatorily divert offenders to. Anybody who knows anything about SA-Best's policy would know that we fully support mandatory drug rehabilitation policies, not only for minors but also for adults.

Importantly, this bill provides for diversion to rehabilitation and treatment programs. Whilst we need to ensure that diversion is not a convenient alternative to prosecution for repeat offenders, we do not want to support overly restrictive limits on referral to rehabilitation and treatment programs. We recognise that offenders may need to make several attempts to rehabilitate if they are to be ultimately successful.

I think the Hon. Mark Parnell has made the case for that very convincingly in his contribution. We need to encourage those who make a genuine effort to rehabilitate, despite previous failures. To maximise their chances of success, those rehabilitation and treatment programs must be expanded and properly resourced. Rehabilitation and treatment places need to be readily available in prisons as well as in the community. This remains a priority for SA-Best and for our federal Centre Alliance colleagues.

As I said, Sweden has slashed drug use in that country. I think this is a lesson that Australia is yet to learn. This bill presents us with the opportunity to implement some of the learnings and best practice of the Swedish approach to illicit drugs in an Australian context, but there is still much to do. I say that in the context also of the Controlled Substances (Youth Treatment Orders) Amendment Bill, which we will be debating soon. When we do get around to that bill, we will be moving a number of amendments aimed at achieving just that.

In closing, I note again that the Hon. Mark Parnell of the Greens has proposed a number of amendments, which we will consider in more detail when the bill is referred to committee. We will continue to advocate for a strong stance on drugs and we will continue to push for further reforms in this area, again, as I said, particularly as they relate to rehabilitation and treatment programs, because we need to break the cycle of illicit drugs and we need to do it now.

The Hon. R.I. LUCAS (Treasurer) (17:05): I thank all honourable members for their contributions to the second reading debate and look forward to the debate in the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I have a quick question that I raised in the second reading debate. What is the estimate of the cost to the justice system if this bill passes, with particular reference to the reduction in the use of the drug diversion program and the advice in the briefing that it would see an extra 1,400 people not going to the drug diversion program and entering other facets of the justice system, like prisons?

The Hon. R.I. LUCAS: I do not have a dollar cost estimate other than the actual number that has been indicated there. I am advised that Corrections, during the consultation phase on this, did not raise any budget bid or anything like that in relation to an impact on their aspect of the delivery of services. As the member would be aware, for 10 or 15 years Corrections has generally been arguing that there is continuing demand for their services and the ever-increasing need for further prisoner accommodation.

The government has accommodated some of that short and medium-term demand with announcements made in the budget, but it is no surprise to know that Corrections, over the medium to long term, has argued that there is a long-term need for further prisoner accommodation in South Australia. That is not in relation to consultation on this bill, that was just generally their position to both the former government and to the new government upon our first budget bilateral process.

The Hon. K.J. MAHER: I thank the minister for his answer. So rather than a dollar figure, did the minister confirm that 1,400 was the correct figure of those we would see enter the justice system and does that mean that Corrections is the custodial system?

The Hon. R.I. LUCAS: It is an extra 1,442, to be precise—someone is being very accurate—going through the criminal justice system, but not all of those would necessarily receive a sentence. Therefore, one cannot assume that the 1,442 would immediately go into the prison system.

The Hon. M.C. PARNELL: To follow on from the minister's answer, is the minister saying that there has not been any assessment of additional revenue in from increasing penalties or additional savings from fewer people being able to access diversion programs? Has no assessment been made of how much extra money you might get, how much you might save from not having as many diversions, and I guess the third part of the equation is extra resources in the criminal justice system.

So has no assessment been made on what this might mean, given that we have decades of reliable statistics of drug offences and the level of those offences, whether they are simple possession, dealing or manufacturing?

The Hon. R.I. LUCAS: The issues in relation to the extra demand, the extra numbers, etc., are considered, but there is no number or dollar figure for any of the particular issues that the honourable member has referred to, which is an extension of the question the Leader of the Opposition had. The advice I have is that it is impossible to predict exactly what would happen in relation to the numbers who might be fined and the numbers who might be imprisoned. That is essentially a judgement for bodies and persons other than our good selves in terms of what the impacts might be.

The advice we have received is that there is no specific dollar figure or number figure response to each of the questions the member has put. There will clearly be impacts. They will be impacts that, once it has been implemented, we will have to monitor. Obviously, as they occur, we will have to budget for them accordingly, if there are budget impacts.

Clause passed.

Clauses 2 to 15 passed.

Clause 16.

The Hon. M.C. PARNELL: I do not think I need to move the amendment standing in my name because all it says is that the clause will be opposed, so I am just letting the committee know that I will be opposing the clause. Clause 16 is effectively doubling the penalty for those people who are caught with more than the prescribed number of cannabis plants. We are talking about people who have plants in pots in their backyards, their sheds or whatever.

The maximum penalty was $1,000 or imprisonment for six months and it has been doubled to a $2,000 fine or imprisonment for two years or both. For the reasons that I gave in my second reading contribution, the Greens do not believe that increasing criminal penalties for small quantities of drugs that are grown for personal use is good public policy, so we will be opposing this clause.

The Hon. R.I. LUCAS: The government opposes the proposed opposition to the clause, so we support the clause as it is. This amendment would have the effect of defeating the government's amendments to sections 33K(1) and (2) of the Controlled Substances Act 1984. The government's amendments to section 33K(1) increase the penalties for the offences of cultivating a controlled plant (other than a cannabis plant), cultivating a cannabis plant by artificially enhanced cultivation, cultivating more than the prescribed number of cannabis plants—namely, more than five plants—or cultivating a cannabis plant intending to supply the plant or to supply or administer any product of the plant to another person.

The current maximum penalty for these offences is a fine of $2,000 or imprisonment for two years, or both. The government's proposed new penalties would be:

(a) for a basic offence—

(i) if the offender is a serious drug offender—$5,000 or imprisonment for 5 years, or both; or

(ii) in any other case—$2,000 or imprisonment for 2 years, or both;

(b) for an aggravated offence—$5,000 or imprisonment for 5 years, or both.

A serious drug offender is a person who, within the past 10 years, has been convicted of certain serious offences multiple times under the act. A basic offence is an offence in its non-aggravated form. An aggravated offence is, broadly speaking, one committed for the benefit of a criminal organisation or at the direction of, or in association with, a criminal organisation.

The government's amendments do not increase the basic penalty for this offence. It remains at $2,000 or two years' imprisonment. The increased penalty for a basic offence applies to serious drug offenders only: persons who have been repeatedly convicted of serious drug offences. These are not people with previous convictions for possession. These are people who have previously been selling or manufacturing harmful and illegal drugs or growing large amounts of cannabis. These repeat offenders should be subject to a higher maximum penalty as they are repeatedly undertaking conduct that harms our community.

The government's amendments to section 33K(2) increase the maximum penalties for cultivating not more than the prescribed number of cannabis plants, namely, between two and five plants. The current maximums are a fine of $1,000 or imprisonment for six months, or both. A person who grows one plant can be issued with an expiation notice, which is currently set at $300.

The government proposes to increase the maximum penalty for the offence to a fine of $2,000 or imprisonment for two years, or both. The penalty for this offence is set at a higher level than the offence of possession of cannabis and appropriately so. Between two and five plants is really reaching the edge of what could be described as growing for personal use and is easily getting to a level where a person could use the cannabis they have grown to supply or sell to others. Cultivating cannabis is a more serious offence than simple possession, and the government's increased penalty reflects that. It is for those reasons we support the existing clause 16 as drafted.

The Hon. M.C. PARNELL: Just so there is no confusion in relation to what I said and what the minister's response is, in terms of the simple possession of, say, two plants, one point that I think is often missed is that there are a number of people who use cannabis but are very uncomfortable about the commercial, criminal side of that industry. For these people, the ethical and the moral thing to do, rather than giving money to bikies, is to have a plant in a pot in their backyard, or two or three.

Honestly, in regard to a measure that relates to numbers of plants, clearly, a plant could be two centimetres high or it could, as we see on the television, be two metres high. It is the number of plants. It is not dry weight or anything like that. I just make the point that what we are doing is further criminalising with additional penalties a cohort of people, many of whom I know, from conversations I have had, are deeply uncomfortable about the commercial side of this industry and do not want to be giving money to criminal gangs. The approach that they take is to look after their own interests and their own needs, and here we are increasing the penalties for these people.

I just want to make that point. I have not spoken about the aggravated offences and people who are serious drug dealers. I am simply talking about people who, for personal use, grow some plants in their backyard. The penalty for those people is increasing to $2,000 or imprisonment for two years, or both, without any need to prove an intention to traffic, without any need to show that they have ever sold anything to anybody. Purely having those plants in their possession, or growing them, is enough to trigger these new penalties.

The Hon. C. BONAROS: Firstly, I would like to highlight that we are talking about maximum penalties here in terms of the fine and the term of imprisonment that is being proposed by the government. SA-Best's position remains that we are concerned about cultivating offences being more serious than simple possession offences and, as such, we will be supporting the government's proposed amendment to this particular provision.

The committee divided on the clause:

Ayes 15

Noes 2

Majority 13

Clause thus passed.

Clause 17.

The Hon. M.C. PARNELL: Just for the benefit of members who might have come into the chamber wondering whether they should leave, the Greens do take these matters very seriously and we will be dividing if the chamber is not with us on the other two clauses that we are opposing. The Greens are opposed to clause 17, which quadruples the maximum penalty for a simple cannabis possession offence.

I do note the observations of the Leader of the Opposition that it is somewhat watered down from the original proposal, which involved gaol time. Nevertheless, having a maximum penalty of $2,000 is completely at odds with what the Greens believe is the appropriate evidence-based approach, and that is to treat these matters as matters under the health system, that the criminal justice system really should have no part to play. Just to be clear, we are not talking about drug dealers, traffickers or manufacturers. These are simple possession offences. The Greens believe that clause 17 should be removed from the bill.

The Hon. R.I. LUCAS: The government supports the clause as it is. I think it is an understatement to say that this clause has been somewhat amended or watered down, given the speech of the Leader of the Opposition in the second reading. I think the Leader of the Opposition would not agree with the statement that it was somewhat watered down.

This amendment will have the effect of defeating the government's amendments for maximum penalties for the offences of possessing any cannabis, cannabis resin or cannabis oil; smoking or consuming any cannabis, cannabis resin or cannabis oil; and possessing any piece of equipment for use in connection with the smoking or consumption of cannabis, cannabis resin or cannabis oil; or the preparation of cannabis, cannabis resin or cannabis oil for smoking or consumption.

The current maximum penalty is a fine of $500, which has not increased for 33 years. I think I might have been here when the original penalty was set. I was probably debating this at the time, I suspect; I should go back and check. The government's proposed maximum penalty is a fine of $2,000. The government made a commitment during the election campaign to increase the penalty for possession of cannabis in line with the recommendation of the Deputy Coroner in the report of the inquest into the murder of Lewis McPherson by Liam Humbles.

The government listened to and accepted the feedback from the community in relation to this amendment and, in the other place, moved an amendment to remove the proposed sentence of imprisonment for the offence, so what remains is the fine of $2,000. The penalty mentioned has not been increased since the act's commencement in 1984—and that just confirms I definitely was here as part of that original debate—and $500 in 1984 was a substantially heftier fine than it is in 2018. In the government's view, it is entirely appropriate that the fine is increased.

The offence remains expiable. The act provides that a simple cannabis possession offence cannot be prosecuted unless an expiation notice has been issued. Therefore, a person will generally only be charged and therefore at risk of the higher penalty if they seek to challenge the expiation offence, as is their right, or if they are also committing other drug offences at the time, in which case they could be charged with the possession offence.

Just in terms of what has occurred in the 30-odd years, my recollection is that the salary for a backbench member of parliament at that particular time was in and around about $39,000 or $40,000, or something; it might have been just under $50,000. That is now $200,000, so salary movements for MPs have been quadrupled. This would seem to be entirely consistent with the general movement, perhaps, in the wages and conditions of ordinary members of parliament.

The government's position is that the Attorney-General and the government have listened to the community feedback in relation to the government's original proposal. I think there has been a significant change to this particular provision. I think the Hon. Mr Parnell said it was somewhat watered down with tongue in cheek. There is a significant change to this particular amendment, and we would urge the committee to support the clause as currently drafted.

The Hon. J.A. DARLEY: As I indicated in my second reading speech, I believe clause 17 should be removed.

The committee divided on the clause:

Ayes 14

Noes 3

Majority 11

Clause thus passed.

Clauses 18 to 23 passed.

Clause 24.

The Hon. M.C. PARNELL: The Greens are opposing clause 24. This is the clause that limits the number of diversions a person is entitled to to a limit of two in a four-year period. Again, not facetiously, it is watered down slightly from the earlier version, which was two diversions in a 10-year period. Nevertheless, the point I made in my second reading contribution—and your homework, honourable members, should you choose to accept it, is to ask your friends who are smokers and who might have given up, 'How many times did it take you to give up smoking?'

I would be very surprised if too many of them said, 'I went cold turkey on the first time', or, 'It happened on the second time.' It takes multiple times to get over addictions, and the idea of artificially limiting a person to being able to take advantage of a diversion program to two occasions in four years, I think, is unhelpful. It is counterproductive and it is not at all in the interests of people who may very much want to kick their addiction and limit their use of these drugs. So the Greens will be opposing clause 24.

The Hon. R.I. LUCAS: The government obviously supports the retention of clause 24. This amendment would defeat the government's amendments to section 34 of the act, which is in division 6 of part 5 of the act. Division 6 currently establishes a scheme whereby adults who are alleged to have committed simple possession offences, aside from cannabis, can avoid being prosecuted for those offences if they undertake and complete a drug assessment and treatment program.

There is currently no limit to the number of times a person can take advantage of division 6. The government proposes that division 6 not apply where a person has already been referred to an assessment service under division 6 on two or more occasions in the previous four years. Those persons would then be liable to being prosecuted in the normal course.

In the 10-year review of the drug diversion program it was found that compliance rates go down the more times a person is diverted; therefore, the program is effective the first or second time but becomes less effective, with worse compliance rates, with each diversion. There is no point, in the government's view, in repeatedly diverting a person and using all the resources of the programs when it is clear that the diversion has become less effective. The time period resets after four years, so a person who was initially successful but then relapses at a later point, perhaps due to later life events or stresses, can once again participate in the diversion program if it is outside the four-year period.

The government understands and agrees that drug addiction needs to be treated as a medical issue; however, there are people who take advantage of the diversion program and avoid any criminal consequences for repeated offending. In the review, one person was found to have been diverted a staggering 32 times. There is simply no point in continuing to divert people over and over; at some point there does need to be criminal consequences for criminal offending.

The Hon. C. BONAROS: We support the position of the Hon. Mark Parnell on this issue, perhaps for slightly different reasons, though. We do so on the basis that we do not think the government has struck the right balance. We are very open to discussions, perhaps between the houses, about what that balance should be, but I do not think it is appropriate to stand in this place and argue for appropriate rehabilitation programs for prisoners or people with drug addiction on the one hand and then limit access to diversion programs on the other.

In the same respect, SA-Best remains concerned that the drug diversion program in its current form is open to abuse and that it is taken advantage of by some who access it, and we really do think that there ought to be a limit. I am just not convinced that we have struck that right balance at this stage. For that reason, and that reason alone, we will be supporting the Hon. Mark Parnell in opposing this clause.

Ayes 13

Noes 4

Majority 9

Remaining clauses (25 to 27) and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:46): I move:

That this bill be now read a third time.

Bill read a third time and passed.