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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-05-06 Daily Xml
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CONTROLLED SUBSTANCES (CONTROLLED DRUGS, PRECURSORS AND CANNABIS) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

(Continued from page 3158.)

Clause 14.

Mrs REDMOND: The Attorney reminds me that before the break he had been extolling the virtues of silence and quoting from, I think, an Australian book that he is currently reading, wherein it is stated, 'He who is silent is saved.' I would like to put on record my response, because over the break I managed to dig out a quote from Pastor Martin Neimoeller. I could not recall his name (and I am sure many others could not recall it), but he famously said:

First they came for the communists, and I did not speak out—because I was not a communist; then they came for the socialists, and I did not speak out—because I was not a socialist; then they came for the trade unionists, and I did not speak out—because I was not a trade unionist; then they came for the Jews, and I did not speak out—because I was not a Jew; then they came for me—and there was no one left to speak out for me.

The other one was by Edmund Burke, who is attributed with having said:

The only thing necessary for evil to flourish is for good men to do nothing.

So, I think the weight of quotations is in my favour in that it is far better to speak out, albeit at the risk of being misinterpreted and misquoted by the Attorney on a regular basis. I felt another quote applied in those cases which was from Terence McSwiney who said:

It is not those who inflict the most but those who endure the most that shall prevail.

The Hon. M.J. Atkinson: I think he was a hunger striker, if my memory serves me correctly from court.

Mrs REDMOND: Therefore, he endured the most. I will move on to the Attorney's comments in relation to clause 14 of the bill in which he seemed to want to place great import on his interpretation of my quite innocent comments before the break about the wording of the clause. I was about to point out that his second reading explanation contained only two brief references to what was done by clause 14. No explanation of it was offered—certainly none that I can recall or made a note of—although I raised the issue specifically at the briefing which the Attorney's officers very kindly provided and I am pretty confident that I did not get any explanation similar to that provided by the Attorney in his response on the second reading to the effect that there is a problem to be addressed here. That problem is that, in spite of the law staying silent, in the Attorney's view—although we have no evidence, just the Attorney's statement to this effect, and I do not dispute it—the judges of our courts are creating a mid-range of penalty for amphetamines and he wants to ensure that those are dealt with at the higher range. I have no objection to that.

However, the explanation he gave in response to my second reading speech was the first that I had heard of that reason for this clause. My puzzlement about the clause was really on the basis that it is worded in the negative. Mostly, in legislation, we see provisions to indicate to a court the matters to which it should refer. Normally, under the Criminal Law (Sentencing) Act, for instance, we have a list of things to which the sentencing authority must refer in making its determination of an appropriate sentence. What puzzled me about this clause was that we were directing what was not a relevant consideration. To me, it is a bit like the very first rule of evidence that I ever learnt which was never to get yourself into a situation where the judge says that the jury should disregard that statement because, if the jury remembers nothing else out of the entire trial, they will remember what they were to disregard. So, it struck me as an odd way to go about this in the absence of an explanation that there was actually a particular difficulty that the legislation was trying to address.

I raised the issue in the briefing that it seemed odd for us to say that the fact that one drug might have different degrees of physical or other harm generally associated with consumption is not a relevant consideration for the purposes of the court determining its sentence. I am quite prepared to accept what the Attorney says: that there is a consistent pattern in the behaviour of our judges. I am certainly not aware of it and I make no pretence of being as able as the Attorney to keep up with the findings of each of our judges. I am too busy by far dealing with all these bills that suddenly appear before us—this week, particularly. If that is the case, that is fine. But in any event, I made no objection to the clause, so the Attorney entirely misstates the position. The Liberal opposition has never indicated anything but support for this bill. All I did in my second reading was to raise some questions which, as usual in my case, are largely about drafting and the Attorney provided an explanation, but I do not in any way resile from the earlier comments that I made.

The Hon. M.J. ATKINSON: I can say to the member for Heysen and to the committee, do not take my word for it. I read from the second half of the Court of Criminal Appeal head note in R v Ford (2008) SASC 46:

Methylamphetamine will continue to be characterised as a drug in the middle range of seriousness in the absence of evidence from the Director of Public Prosecutions to the contrary.

That decision was reported in the Adelaide media and I am surprised that the member for Heysen did not see it, or take note of it.

Clause passed.

Remaining clauses (15 to 20) and title passed.

Bill reported without amendment.

Third Reading

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

That the bill be now read a third time.

I thank all members for their contribution, including the member for Heysen, and collectively they have seen the house safe to the other side of grievances.

Bill read a third time and passed.

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