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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-02-14 Daily Xml
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SUMMARY OFFENCES (DRUG PARAPHERNALIA) AMENDMENT BILL

Second Reading

Second reading.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (15:46): I move:

That this bill be now read a second time.

At present, drug paraphernalia is openly advertised and sold by a handful of dedicated businesses, including some dedicated to selling the paraphernalia, including some tobacconists. The Rann government believes that the sale of drug—

An honourable member interjecting:

The Hon. M.J. ATKINSON: That is what I said and, unlike the Leader of the Opposition, I will not need to alter Hansard to have my saying something else. The government believes that the sale of drug paraphernalia encourages undesirable business and social practices such as commercial exploitation of an already illegal behaviour and the presentation of a conspicuous affront to society by openly advocating drug use. This, we think, has the effect of normalising such behaviour, especially for impressionable adolescents.

The bill is an excellent example of the Rann government working with the Independents in this place to make good law. The Rann government is not proud. We accept good ideas from wherever they come. I commend the Hon. Ann Bressington on her initiative. I am glad about the cooperation, patience and goodwill that has created a law—a proposed law, at any rate—that goes even further than first conceived by the honourable member.

I seek leave to have the balance of the second reading explanation incorporated in Hansard without my reading it.

Leave granted.

These concerns require a specific response directed against the supply side of the market. The present state of the law is not adequate to deal with commercial sale practices. It only criminalises possession with the intent that someone consume an illicit drug. That is difficult to prove against commercial operations for the very good reason that the businesses do not care what a purchaser uses the implement for. The Bill would amend the Summary Offences Act 1953 to include a new offence in Part 3, that deals with offences against public order, to ban the sale of certain paraphernalia and discourage the undesirable practices of the market’s suppliers. The intent element will be the intent to sell—not the intent that someone consume an illicit drug.

What is required is a comprehensive list of products to be banned from sale, including devices commonly used to prepare or consume illicit drugs such as cannabis, methamphetamines and cocaine. This Bill closely defines drug paraphernalia and gives examples of devices known as bongs, hash pipes, ice pipes, cocaine kits and hookahs, narghiles, shishas and ghalyans. Adding the words 'known as' is important because it will allow expert evidence to be adduced to help prove an offence against the provisions.

The current offences in the Controlled Substances Act 1984 will be retained to deal with individuals in possession of equipment for the preparation or consumption of drugs, and to deal with the sale and possession of other types of equipment.

Until now, the relevant sections of the Controlled Substances Act 1984 are limited to cases where there is an intention, on the part of a person in possession of drug paraphernalia, that the equipment be used in connection with preparing or consuming an illicit drug by themselves or by someone else.

Proving this against a commercial operation is very difficult. I am aware of less than a handful of successful cases that have been brought against commercial outlets selling drug paraphernalia because of the difficulty of proving that they intended for the equipment to be used in connection with preparing or consuming an illicit drug. Therefore, for this initiative to succeed, it must be made clear that the seller’s intention is simply to sell the paraphernalia, irrespective of what it might be used for.

In the years 2004 to 2006 the courts disposed of an average of 100 cases of possessing implements for drug use in one way or another. These numbers can in no way reflect the number of implements circulating in the State. Criminalising the supply side of the market would restrict the circulation of these goods and reinforce the message that drug consumption is illicit behaviour. SA Police has advised me that the amendments will disrupt drug activity.

Banning the sale of drug paraphernalia will restrict the circulation of these implements in the community. Making it more difficult to prepare and consume illicit drugs should mean that at least some people are put off the behaviour. That is the intent of this Bill.

Given the relatively small number of sellers and the requirement to only prove an intent to sell, a new offence criminalising the sale element should require few resources for enforcement.

The Bill sets tough new penalties which are doubled if the sale or supply is to a child. The Government wants to eradicate efforts to legitimise drug-taking by young people and this is in keeping with our child protection reform program as outlined in Keeping Them Safe. The penalties are also doubled if the offender is a body corporate because the ban is aimed at open market activities. The Bill also gives the Commissioner of Police the power to deal with and dispose of prohibited items in such manner as he or she thinks fit.

The definition of sale will be a wide one, including barter or exchange, and will include an offer, an agreement, exposing or possessing for sale, barter or exchange. The Bill also captures the supply of drug paraphernalia as part of another transaction so as to ban free giveaways of pipes, bongs and other illicit implements when purchasing something else.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause provides that operation of the measure will commence on a day to be specified by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Summary Offences Act 1953

4—Insertion of section 9B

Proposed section 9B of the Summary Offences Act 1953 prohibits the sale of certain items connected with drug use. The new provision also prohibits the supply of these items in connection with the sale, or possible sale, of goods.

Sell is defined widely to mean the following:

sell, barter or exchange;

offer or agree to sell, barter or exchange;

expose for sale, barter or exchange;

have in possession for sale, barter or exchange.

Supply is defined to include an offer to supply.

Sale or supply of water pipes, prohibited pipes and cocaine kits is prohibited under the proposed section. A water pipe is a device capable of being used for smoking by means of the drawing of smoke fumes through water or another liquid. The term also includes the following:

components that, when assembled together, form a device capable of being used for smoking by means of the drawing of smoke fumes through water or another liquid;

a device apparently intended to be used for smoking by means of the drawing of smoke fumes through water or another liquid but that cannot be so used without an adjustment, modification or addition.

A prohibited pipe is a device that is apparently intended for use or designed for use in smoking cannabis, cannabis resin or methamphetamine crystals. The definition also includes components that, when assembled together, form a device apparently intended for use or designed for use in smoking cannabis, cannabis resin or methamphetamine crystals.

The definitions make it clear that devices known as bongs, hookahs, narghiles, shishas and ghalyans are water pipes. Devices known as hash pipes and ice pipes fall within the definition of prohibited pipe.

A cocaine kit is a kit constituted by 2 or more of the following items packaged as a unit apparently for use for the purposes of preparing for introduction, or for introducing, cocaine into the body of a person:

a razor blade;

a tube;

a mirror;

a scoop;

a glass bottle;

any other item apparently for use together with any item referred to above to prepare for introduction, or to introduce, cocaine into the body of a person.

The maximum penalty for the offence of selling or supplying a prohibited item contrary to the new provision is, in the case of an offence committed by a body corporate, a fine of $50,000. If the offence is committed by a natural person, the maximum penalty is a fine of $10,000 or imprisonment for 2 years, or both.

Where the offence is committed by a body corporate, any director or manager of the body corporate is also guilty of an offence. The director or manager is liable to the penalty applicable where the offence is committed by a natural person. However, if it is proved that the director or manager could not, by the exercise of reasonable diligence, have prevented the commission of the principal offence by the body corporate, he or she is not liable to the penalty.

Schedule 1—Related amendment

Part 1—Amendment of Controlled Substances Act 1984

1—Amendment of section 33D—Sale of equipment

Under section 33D of the Controlled Substances Act 1984, the maximum penalty for selling a piece of equipment for use in connection with the smoking, consumption or administration of a controlled drug, or having possession of a piece of equipment intending to sell it for such use, is a fine of $2 000 or imprisonment for two years.

This clause amends the penalty provision by increasing the maximum fine to $10 000.

2—Insertion of section 33GA

This clause inserts a new provision into the Controlled Substances Act 1984. Proposed section 33GA will be inserted into the Division of the Act relating to offences involving children. The section is similar to section 33D of the Act but imposes a higher maximum penalty for sale of equipment to children. The maximum penalty is a fine of $20 000 or imprisonment for two years (or both).

Debate adjourned on motion of Mrs Redmond.

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