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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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CONTROLLED SUBSTANCES (CONTROLLED DRUGS, PRECURSORS AND CANNABIS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 April 2008. Page 2582.)

Mrs REDMOND (Heysen) (11:40): I indicate to the house that I am the lead speaker for the opposition in relation to this bill; and I am sure the Attorney-General will be pleased to know that we will be supporting it. I want to place on record a few comments about the bill.

The main thrust of the bill is to correct a problem which has been raised by the Commissioner of Police. At present, there are two different mechanisms for dealing with the possession of precursor chemicals which, ultimately, become illicit drugs in our community. Under part 6 of the Controlled Substances (Poisons) Regulations there is a series of offences which are relatively minor in that the punishment is a fine between $3,000 and $5,000. Those offences occur if a person has any of the chemicals listed in the regulations and possesses them without lawful excuse. Obviously, there could be reasons why someone would have those chemicals with a lawful excuse; and I will comment later about the fact that one of the difficulties under this legislation is that we are trying to deal with illicit drugs under the Controlled Substances Act, which is not designed to deal with the problem of illicit drugs.

Nevertheless, under the existing regulations we have a situation where in a relatively straightforward way we can ping someone who is in possession of the listed precursor chemicals. The fine is relatively small and the mechanism by which the offence is established is straight forward; that is, if you have possession of the substance without lawful excuse then you are guilty of the offence.

The difficulty comes about when we move to the more serious end. In 2005 we introduced the Controlled Substances (Serious Drug Offences) Amendment Act, which brought in serious drug offences and attempted to deal with the problem of the more serious precursor chemicals used for the creation of illicit drugs. The difficulty that arises under that legislation is that those offences rely on the police being required to prove the intention to use those precursor chemicals for the production of illicit drugs. Of course, that proof has to be beyond any reasonable doubt. As a result, that makes the level of proof required in that area much more strenuous.

For the lesser offences—those under the regulations—the person with the chemicals has the onus of establishing that they have a lawful excuse to have them, but for the more serious offence the police have to establish that the person with the chemicals intended to use them for an unlawful purpose.

This bill establishes a new regime whereby mere possession of more than a prescribed amount of a so-called precursor chemicals (which will be listed in the regulations) without lawful excuse will be an offence. In other words, like the lower end offences that exist already, it will put the onus back on the person who is in possession of the chemicals to establish they have a lawful excuse for having them.

We are advised that it is intended that the prescribed amounts of those chemicals will be trafficable amounts, and that is to be a definition worked out in accordance with the national model schedules working party, so the idea is that the definition of a trafficable amount will be consistent throughout the country.

Similarly, it is intended that the list of precursor chemicals will be the list of controlled precursors to be used for the purposes of serious drug offences which has also been developed by the Intergovernmental Committee on Drugs (IGCD, as it is known). So the applicable penalty now under the new regime will be a maximum penalty of three years' imprisonment or $10,000 and, if the offence is an aggravated offence, the maximum will go to five years' imprisonment or $15,000. Aggravation of the offence will occur if instead of simply having one chemical you have two chemicals (any two of the chemicals in trafficable amounts) or if you have one chemical and one of the other items of the drug equipment which are also caught by this legislation.

I am a little disappointed that it appears that the government has not yet determined what will be encompassed by 'prescribed drug equipment'. I know that in the second reading there was simply a statement that what will or will not be a listed drug apparatus will be prescribed by subsequent legislation. As always, I have some misgivings about the extent to which this government chooses to put detail into regulation, which of course is not subject to the same scrutiny of the parliament as if it was in the bill itself. I appreciate that often it would not be possible to list everything in the bill itself, but it seems to me that the more appropriate way to go about that is to capture most of the pool and describe most of the pool of what is to be the drug equipment that we are trying to take off the streets, as it were, and then to have a provision within the legislation that allows for the prescription of anything else.

So, when the legislation is passed without the need for additional regulations, we already know what the items of equipment that we are trying to remove from circulation and use will be and, if people then come up with a new name or piece of equipment, that can be added later by regulation if necessary. It seems to me fraught with inherent danger, from whichever side of politics, to introduce legislation consistently which simply says, 'We want to get rid of this but we are not going to tell you what it is we are getting rid of. We will tell you that in a regulation subsequently.' So, I express some misgiving about that mechanism as a general tool by which we legislate.

In addition to the aggravated offences—which, as I said, will be if you have any two of the chemicals or any one chemical plus any one of the items of prescribed equipment—there will also be a separate offence with heavier penalties which are the equivalent penalties applying to the aggravated offence if you have any amount of a listed precursor chemical or any item of prescribed drug equipment, if it can be established that the possession was with the intent to manufacture a controlled drug. In other words, that has lifted to a separate section again the level of proof required under the existing regime where the police are complaining that their difficulty is how they prove someone's intent with any particular piece of equipment.

Any person might have a test tube. I used to play with chemistry sets when I was a kid, and there could be any number of reasons that people would have test tubes, or various other things that might be used as equipment to produce drugs. What this new legislation says is, 'From now on, no matter how much you have, there will be an offence. If you have any two or more, it will be an aggravated offence'; or, 'No matter how much you have, if we can show that you had it with the intent of producing an illicit drug, it will be the equivalent of an aggravated offence—it will be an offence with a heavier penalty.' There are a couple of other things, but, as I said, that is the essential element of this bill. The bill does some other things, and they relate to some promises made by the Labor government at the last election: first, to create a specific offence of cultivating cannabis hydroponically.

I think that every member in this chamber, at least, would be aware of the stupidity of our law at present whereby we have allowed any number of plants, be it 10, three, one, or whatever the number has been from time to time over its legislative history. Once we got into the regime where people were growing things hydroponically, the reality was that one hydroponic plant could fill a room. With respect to legislation to control cannabis, the intention in the past was to say, effectively, as a legislature, 'Well, we'll allow small amounts of cannabis to be grown for personal use,' but the government did that by legislating the number of plants.

Now, as I said, we know that, if someone grows one plant hydroponically, it could fill—maybe not quite this room—a room of average size. What this legislation does is to say, 'We are taking the hydroponic growth out of the equation and saying that, from now on, it will be a specific offence to cultivate cannabis hydroponically.' I would suggest, in fact, that anyone who is cultivating it hydroponically is unlikely to have just one plant in any event. I do not think that I have ever come across someone growing just one plant hydroponically. The second thing that this bill does is to seek to legislate to ensure that the courts treat the manufacture, sale and distribution of amphetamines, ecstasy, and similar drugs at the upper level of the penalty range rather than the middle, and it also makes the possession of firearms in conjunction with drug offences an aggravating feature of the drug offence, and that will attract a higher penalty.

In relation to that second point, in terms of legislating to ensure that the courts treat the manufacture, sale and distribution of amphetamines, ecstasy and similar drugs at the upper level of the penalty range, the bill in fact adds two new matters to be considered when a court fixes a penalty: first, with respect to a summary or indictable offence against part 5 of the Controlled Substances Act involving a controlled drug other than cannabis, the court must not consider the degree of physical or other harm generally associated with the consumption of that particular drug or type of drug as compared to other types.

The court must (that is the word used in the legislation) determine penalty on the basis that controlled drugs are all categorised as very harmful. I am a little puzzled by that provision in as much as it seems to me that we do not really need to say that in the legislation. The legislation, I think, speaks for itself. It strikes me as being unnecessary, but, nevertheless, I do not see it as doing any great harm. It just surprises me that we are telling the judges that particularly: that, with respect to these offences other than cannabis, the court must not consider the degree of physical or other harm generally associated with the consumption of that particular type of drug as compared to other types.

I suppose there would be members in this or the other chamber who might argue, for instance, that ecstasy is a relatively harmless drug. That probably is just as certain as some people used to argue that cannabis was a harmless drug. In fact, I grew up in a generation that was told consistently that cannabis was less harmful than ordinary tobacco in perfectly lawful cigarettes. My view—having read fairly extensively on it now, and having observed for a number of years the impact of regular cannabis consumption on young people—is that it is a very dangerous drug and very harmful to a great many people. That is the first of the two new matters that the court has to consider when fixing a penalty.

The second relates to a person convicted of both an indictable offence against the Controlled Substances Act and an offence against section 32 of the Criminal Law Consolidation Act, which is essentially if you commit an offence under the Controlled Substances Act with a firearm in your possession, then the court must make the sentences for the two offences cumulative unless there is special reason for not doing so. In layman's terms that will mean that if there is, say, a five-year penalty for your offence against the Controlled Substances Act and you are also convicted of an offence under section 32 of the Criminal Law Consolidation Act by having a gun with you at the time of the commission of that offence and that attracts maybe a three-year penalty, then the court, in the absence of special reasons, is not at liberty to say, 'Well, the higher offence—the five years—subsumes the lesser offence of three years,' or whatever it might be, 'and therefore, five years will be the penalty.' They must say that the sentences will be served one after the other, so that the effect will be a total of eight years.

I am just using those figures, of course, to illustrate the point, but that is the essence of what this other provision says about the way in which the court has to address the issue of sentencing for someone committing a controlled substances offence basically with a firearm in their possession at the time. There is no explanation, of course, as to what might constitute special reasons for so doing, but I imagine that theoretically one could have a relatively innocent section 32 offence not physically connected to the controlled substances offence and the court might find that there was, therein, special reason for not forcing the person to serve their sentences cumulatively.

At the moment, the existing act also contains a tiered system of offences, much like many of our legislative regimes. People would probably be aware that for driving offences we generally have a system of less than .05 per cent alcohol, between .05 and .08, and over .08 and, indeed, our legislation actually then goes on to refer to between .08 and .15, and then above .15. In certain categories of offences we will also then have not only the more serious offence and the lesser offence, but whether you have had a previous conviction within the last few years. The result of that will be that there is then a tiered structure upon which penalties are imposed.

In a similar way this act in section 33 contains this tiering system, the most serious being the manufacturing of a large commercial quantity, the next most serious being the manufacturing of a commercial quantity as opposed to a large commercial quantity and, finally, the manufacturing of a lesser quantity. In each case the manufacture of the controlled drug must be with the intention of selling it, or in the belief that another person intends to on-sell it. If the defendant manufactured a trafficable quantity, there is a presumption of the necessary intention of on-selling in the absence of proof to the contrary.

The common law extends all of that concept to attempting to do those things, and the bill extends the presumption of intent, so that, if you have an attempt to conspire to manufacture trafficable quantities of a controlled drug, then the bill proposes that the presumption of intent found in the original legislation will be extended. In addition to all of those things, there are only three other items, which are rather technical in nature and I will run through them quickly. There are technical amendments to the regulations to bring them into line with the nationally prescribed regulations, for example, permitting the specification of prescribed amounts of precursors in their pure form, as well as in their mixed form.

There is a delegation amendment to correct a situation created when officers of the department who held certain delegated authority were moved from the Department of Health to what the government has now renamed the Southern Adelaide Health Service. The consequence of their moving from the Department of Health to the Southern Adelaide Health Service has now been picked up: they are no longer officers of the department within the meaning of the controlled substances legislation and, therefore, that needs to be corrected; as I said, it involves a technical amendment. There is also a further technical amendment to make it clear that, where code and standards are incorporated into the regulations by reference, those codes and standards do not by themselves gain the status of regulations under the act, because there could be a reference to commonwealth regulations, and we will not give them the status of regulations under the act. In brief that is the technical side of the amendments.

The main thrust of the amendments is to overcome this problem to which the police have alerted the Attorney-General, namely, at the moment it is far too difficult for the police to have to prove people's intent when they are in possession of precursors for the manufacture of illicit drugs, so in effect the main thrust of the legislation is to ensure that, if you are in possession of those things without any reason, then you will have to establish your entitlement to have them or be guilty of the offence. That is the basis upon which we support this bill.

We have some questions about why this government so consistently goes about legislating by way of regulation rather than in the legislation itself, and we believe there is some difficulty in dealing with illicit drugs generally on the basis that the Controlled Substances Act, which this bill is amending, was never intended to be the primary mechanism by which illicit drugs in this state were controlled. The Controlled Substances Act was originally designed to deal with prescribed drugs, poisons and other things which might need to have some control but which were never part of an illicit drug trade. I am pleased to see such an audience for my comments today; I do not know what has attracted all the attention. I thank the officers of the Attorney-General's department for their assistance in briefing me on this matter and wish the bill a speedy passage through the house.

Mr VENNING (Schubert) (12:04): I have been in this place for some time but I am concerned that we have had to bring legislation like this before the house. The history of this place has been disgraceful. I can remember when we first made these laws in relation to allowing—

The Hon. M.J. ATKINSON: On a point of order, I wonder whether it is appropriate for the member for Schubert to say that the history of this house has been disgraceful. It is one thing for the member to disagree with legislation previously passed by the house, but to say 'the history of the house is disgraceful' seems to me to be disorderly and to reflect on all members.

The SPEAKER: Perhaps the member for Schubert might rephrase his remarks.

Mr VENNING: I am happy to rephrase that: the history of this legislation before the house, I think is quite disgraceful. I make no secret of the fact that I have always campaigned against drugs, and I give my full support to any legislation that increases the penalties given to those charged with the manufacture and distribution of drugs. I think that many of the problems we have in this state right now can be directly attributed to the laws we made allowing people to grow cannabis with only an expiation fee at the end of it and, at one stage, it was even up to 10 plants—that is almost a factory.

I can remember at that time in a committee arguing with the Hon. Michael Elliott. He was strongly advocating having more plants, and I said that it was quite wrong. He had been to the Scandinavian countries and said that there was no problem with this. It turns out that there is a big problem with this and that is why this legislation is before us. Drugs cause a huge amount of damage to our communities and the cost to everyone is huge, with increases in illegal activity such as stealing to obtain the finance to feed their drug habit, assault, armed robberies, physical and mental health problems, family and relationship breakdowns, abuse—and the list goes on.

I am very surprised that it is only now that this bill is being introduced. I think that people with drug laboratories who harbour the chemicals and equipment used to make drugs have had it easy for far too long. Since the introduction of the Controlled Substances (Serious Drug Offences) Amendment Act 2005, there are new serious drug offences for dealing with those in possession of precursor chemicals. However, in order for this legislation to be enforced, the onus is on the police to prove the perpetrator intended to use the chemicals for the manufacture of illegal drugs. I personally think that this is ridiculous, and I am pleased that this bill seeks to amend this situation by establishing a new regime whereby people in possession of more than a prescribed amount of precursor chemicals (an amount set by an inter-government committee on drugs) without a lawful excuse will be charged with an offence, with a maximum penalty of five years imprisonment or $15,000.

The changes outlined in this bill will create a specific offence for those cultivating cannabis hydroponically. I believe that the penalties for the cultivation of cannabis, hydroponically or otherwise, are too lenient. However, I will discuss this further when a private member's bill dealing directly with the cultivation of controlled plants is debated in this house. However, I am pleased that this bill does increase the penalties for the cultivation of cannabis hydroponically. Growing cannabis in this manner is known to increase its potency, and medical evidence from studies in New Zealand and the Netherlands has shown that people who smoke marijuana grown in this way experience increased mental health problems.

Anything which increases the penalty for those growing marijuana in this way will benefit all South Australians. This bill also seeks to deal more harshly with those in possession of firearms in conjunction with drug offences by attracting higher penalties. This is clearly a logical move. I cannot understand how the laws dealing with perpetrators who have carried out such dual offences have not been penalised more severely in the past. I have obtained from the library a history of the legislation which has come before this house in relation to the growing of marijuana, and the history behind it is a disgrace.

We in this house have really caused some of the problems in relation to the 10 plants and expiation fines which we are now trying to clean up with this bill. I still find it ridiculous that a person who has been caught with marijuana can pay an expiation fee and no mention is made on that person's criminal record, whereas I lost my licence for three months and my licence carries the mark forever. If that is the case, I am happy to wear it, but I think it is rather stupid. I hope I got that wrong. I have the licence back, I remind the house. It has become a bit of a cult thing with me. I think it is ridiculous that a person can be apprehended with a prescribed amount of cannabis in their possession (and most of us would know people who have been) and, because they only had the prescribed number of plants, they have paid the expiation fee and no further action has been taken.

The Hon. M.J. Atkinson interjecting:

Mr VENNING: The minister raised a good point. I have no problem with that: I agree with him. I do not want to go on at great length but, ever since I came to this place, my record has been one of anti-drugs. I think it is sad that we in this house have given the wrong message to all our constituents. Over 15 years we have been giving the wrong message, that it is okay to grow cannabis: 'You can have up to 10 plants, no problems, and if we catch you we'll hit you—'

Mr Williams: That is where the problem started.

Mr VENNING: Yes, that is where it started. I can assure members that it did not come from this side of the house. So, there is an unreal expectation out there amongst young people. If you ask a young person today (mine included), 'Have you tried cannabis? Have you tried the hooch, the weed, the grass?' or whatever you want to call it—

The Hon. M.J. Atkinson: Have you, Ivan?

Mr VENNING: No, I have not. That is on the record.

The Hon. M.J. Atkinson: What about your colleagues?

Mr VENNING: I have not asked them. So, what we have done in this house (and I hope there is general agreement) by our being soft and allowing up to 10 plants of cannabis to be cultivated is put a message out there which we now regret and which we are now trying to clean up. We know what happens when young people start with cannabis. They go on to heavier drugs, as the Attorney-General has just highlighted. I will continue my push in relation to drug offences and drug driving. I believe that we need to go further in relation to cannabis and driving.

The Hon. M.J. Atkinson: What about drink driving?

Mr VENNING: I have no problem at all with drink driving: I am quite happy with the current regime. I will never get picked up for drink driving.

The Hon. M.J. Atkinson: Again.

Mr VENNING: I never have been—and I do not want to be misled. This is a very important issue, and we on this side support this measure. I ask members to consider the position of the Australian Democrats, in particular, on this issue over the years. The Hon. Mike Elliott was a friend of mine, and we had many arguments. It is all very nice to say in hindsight, 'I told you so,' but look at the huge cost. Why has Adelaide become the drug capital of Australia? It is because of our soft laws back in—

Mr Williams interjecting:

Mr VENNING: You are dead right—because of the then Labor government and the then attorney-general. They were very soft and allowed the cultivation of up to 10 plants to be dealt with by way of an expiation fee. That is absolutely deplorable. This is supposed to be a house of great wisdom. In this instance, I very much doubt it, and I regret that I was here and was unable to highlight the problem back then.

Mrs Redmond: You were unable to persuade them.

Mr VENNING: I was unable to persuade the house to accept my point of view. Time has proven that we were right, and it is regrettable. Certainly, this bill is going in the right direction, but it is a pity that we did not do this 10 years ago. I commend the shadow minister. I certainly support this measure, and I will be revisiting the issue of drugs, particularly with respect to drink driving and cannabis.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (12:14): I have read a book by the Australian author Walid Ali entitled People Like Us about Muslims in Australia. At one point in the book Mr Ali said: 'He who is silent is saved.' It is a maxim that the member for Heysen might take to heart. I think the safer course for the Parliamentary Liberal Party—the course that was truer to its heart on this matter—would have been to support the bill and to support it unconditionally.

Mr WILLIAMS: On a point of order, Mr Speaker, I am having trouble hearing the Attorney. Can you invite the Treasurer to take his argument outside, please?

The SPEAKER: Order! The Treasurer has taken his seat. Has the Attorney-General finished his remarks?

The Hon. M.J. ATKINSON: Yes, sir. Unfortunately, we have a quarrel in the house owing to the member for Unley making remarks about the personal life of a member of the government.

Mr Pengilly interjecting:

The Hon. M.J. ATKINSON: The member for Finniss says that I should stay out of it, but the standing orders of the house—

Mrs REDMOND: On a point of order, Mr Speaker: the comments of the Attorney have nothing to do with the bill before the house, which he is supposedly addressing.

The SPEAKER: Yes, I uphold the point of order. The Attorney-General.

The Hon. M.J. ATKINSON: Thank you, Mr Speaker, and I also thank the member for Heysen. So, as Mr Ali says, 'He who is silent is saved.' Of course, that applies equally to 'She who is silent is saved.' The aspect of this bill to which I am referring is the aspect that provides that the judges, in sentencing for drug offences, should treat amphetamines and amphetamine offences at the top of the range.

The view of the Rann government is that, where we are talking about the manufacture or trafficking of amphetamines, it should be treated as seriously by our courts as heroin and cocaine offences. That is to say that amphetamines should be treated seriously, not in the mid-range of sentencing as they have been treated by the judges. There is nothing in the legislation and there is nothing that parliament has said that has caused the judges to treat amphetamines as a mid-range offence, but that is what the judges have done.

So, we have the judges of the state treating heroin and cocaine as the most serious offences, and amphetamines as a mid-range offence, and then marijuana as a lesser offence. All the Rann government wants to do is to treat amphetamines as a high-range offence, yet the member for Heysen, on behalf of the Parliamentary Liberal Party, quibbles with that. It is time that the Parliamentary Liberal Party, after the debacle over bongs, into which the member for Heysen plunged—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Bongs.

Mr Pengilly interjecting:

The Hon. M.J. ATKINSON: The member for Finniss has a one-track mind: 'bongs'. After that debacle, you would think that the Parliamentary Liberal Party would get the member for Heysen back on track, but today she is quibbling with the Rann government making amphetamines a high-range offence. She has asked, 'Why do we need to tell the judges this?' Well, member for Heysen, the reason parliament needs to tell the judges is that, in the plenitude of their discretion, they have decided that amphetamines are a mid-range offence instead of a high-range offence: that is why we need to do it.

I would hope that, when we get to the committee stage of this bill and we debate that particular clause, members of the Parliamentary Liberal Party will dissociate themselves from the laissez-faire position the member for Heysen has taken that there is no need for the parliament—

Members interjecting:

The Hon. M.J. ATKINSON: Well, if the members interjecting were here when the member for Heysen was speaking they would understand the point I am making. Amphetamines should be a high-range offence, and if any member of the Parliamentary Liberal Party wants to join the member for Heysen in saying that judges need not be instructed that it be a high-range offence then let them come on the record during the committee's consideration of the clauses of this bill. I urge the house to support the second reading.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Progress reported; committee to sit again.

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