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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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CONTROLLED SUBSTANCES (OFFENCES RELATING TO INSTRUCTIONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 March 2011.)

Ms CHAPMAN (Bragg) (16:18): I rise to speak on the Controlled Substances (Offences Relating to Instructions) Amendment Bill 2011. I indicate firstly that the opposition considers that this bill should not be passed in its present form, and I will be foreshadowing a number of amendments.

The bill that is before us was introduced by the Attorney-General on 10 March 2011, just less than two months ago, and it followed an election commitment outlined in the ALP community safety policy, which I think was then launched by the Premier. The former attorney-general (the member for Croydon) was apparently responsible for its carriage through the caucus, and it claimed as follows:

South Australia's drug paraphernalia laws will be amended to restrict the availability of material which informs people on how to cultivate or manufacture drugs. By making it an offence to possess such material, it will close the current loophole identified in the existing law. By banning the possession of such material, the proposal will restrict the sale and production of publications that inform people how to grow, cultivate or make illegal drugs. The possession of the material will be an offence under the Controlled Substances Act 1984 section 33LA.

What I want to say about that is that this was a policy suggesting that this will be introduced, if the government was re-elected, to in some way remedy a loophole and some failure to be able to provide protection under the law that then existed. The truth is that the current offence as applied in March 2010 and section 33LA(2)(a) of the Controlled Substances Act 1984 already made it an offence to possess 'a document containing instructions for the manufacture of a controlled drug or the cultivation of a controlled plant'.

The reality, as is now clear from the bill that has been presented to us, is that this was not an attempt to close a loophole but, in fact, to introduce a new and different offence, namely, for the sale and supply of instructions to make or cultivate illicit drugs and to provide, with that, a higher penalty by making the offence a minor indictable offence.

So, we have a situation where there are two types of offence in the act for the provision of controlled articles used in the manufacture of drugs. One is the sale and intent to sell and the second is possession. The third offence, which this bill now proposes to introduce, is supplying those instructions. It has to be, of course, for the purposes of actually producing the illicit drugs but, in any event, what is relevant here is that there are some significant differences now created, if this bill goes through, as to penalties, depending on whether the element that is used for the purposes of manufacturing drugs differs and whether there is actually a sale with intent to supply or possess in itself.

What we end up with is this: we start from the fundamental principle (which is already clear in the law), that is, you cannot make or supply illicit drugs themselves, and there are a lot of rules about that. Over a period of time, there has been the introduction of offences being created in three different categories of the things that are needed to make these drugs. One is the controlled precursors, that is, the constituent elements to make a drug. I am not sure what they are, but there are particular chemicals and/or, presumably, organic product, which are used to actually make the drug.

The second is the equipment in connection with the controlled drugs, and I assume that is the Bunsen burner and the other pieces of glass apparatus that are used to create these liquids or pills or whatever. The third is the instructions that you need to be able to put it together in a way that actually creates the drug in the first place.

Of each of these things, whether that is the precursor, the equipment or the instructions, we then have a set of rules that say that you cannot sell any of these things, and we have an existing law to provide for a number of those. Then we have three different questions as to whether it should be an offence to intend to sell any of those three things, then whether we have an offence to supply to anyone those things, then we have the three categories—one for each—for the possess with intent to supply, and then we have the possession.

What we have at the moment, to try to keep this as simple as possible, in all of these different categories is currently an offence to sell a precursor, sell equipment or intend to sell precursors, but not intend to sell equipment. There is no offence to supply to someone—as distinct from selling—a precursor or equipment. There is no current offence which prohibits the possession with intent to supply a precursor or equipment, and there is currently a law which prohibits the possession of a precursor or equipment.

What this bill does is add to some of those categories an offence to sell instructions, to intend to sell instructions or to supply instructions, but it does not add a category of possessing with the intent to supply (which is rather odd, since we have intent to sell provisions for precursors), and it does not comprehensively cover possession for instructions.

This bill will essentially add in the offence to sell instructions, intend to sell instructions, supply instructions, and add to the possession of instructions, which is adding to some of what we already have, but for some reason does not add any provision for possess with intent to supply instructions. We have this position where it is currently an offence to present and sell precursors and equipment where the salesman has a knowledge it may be used for the production of controlled substances, and it is also currently an offence to possess a precursor with the intent to sell it for the production of drugs.

It is fair to say that, even with the provision changes proposed in this bill, it would still be legal to supply proscribed equipment to a person who intends to manufacture drugs. A person who sells proscribed precursors or equipment would be guilty of an offence, but, if a person provides them without charge, no offence is committed. It is possible they could be charged as a principal offender under the aiding and abetting provisions under section 267 of the Criminal Law Consolidation Act 1935. Nonetheless, it creates an inconsistency in the legislation.

If the key concern is the provision of materials used for the production of drugs, then it would make no difference whether the person sells or supplies such materials. If the evil in all of this is the capacity for one or more to manufacture and create illicit drugs—and I think we all agree that is not a good thing—and that is something that we should in our criminal law clearly proscribe as offensive and therefore should have penalties associated with it, we need to make sure that it is comprehensive.

We started in a situation in 2010 where the Premier and then attorney-general wanted to tell the public of South Australia that they were keen to close down a loophole and make sure that we were going to be tough on these areas and to confirm their position to restrict the availability of materials. In fact, there was already existing legislation. There remains existing legislation, and the addition of this bill will create some extra offences but will clearly not close all the avenues that would be open in those circumstances.

Why did the government do it? I suggest that the government was keen to make announcements, to present to the public that in some way it was going to be giving them greater protection, and that this was a way in which it was going to reduce the capacity to develop these illicit drugs. From the document that was published at that time, there did not appear to be any data that suggested that the provision of these instructions, which is designed to be remedied by this bill, was in any way operating or that the law as it previously existed, which concerned being in possession of the instructions, was in some way defective in not being able to capture people; that is, people were getting away with it because there had been no supply and sale offences.

In the absence of any evidence to support that there was actually a problem, it is concerning that the government would try to make such announcements under the gamut of providing community safety when they had not even outlined any justification for it.

The other concerning issue is that, 10 months down the track, having announced that they were going to fulfil this election commitment, the new Attorney-General introduced the bill on 10 March 2011 and then promptly offered a briefing to members of the house. Matthew Goode, who I think is still employed in the Attorney-General's office, has provided briefings to this house on a number of legal matters over a very long period of time. In fact, Mr Goode, I think, is pre-eminent in his field in the preparation of legislation for this parliament, and indeed has had a history with the University of Adelaide law school where I first became acquainted with him, and I have absolutely no reason to doubt that he is very competent in this area.

But it was interesting, in providing this briefing, that although there had not been any indication in the second reading contribution as to how the operation of the offences against the possession of instructions were going, it seemed that he did not even know how many charges or prosecutions there had been under the current section 33 for the past five years, or at all, in respect of possession of instructions. That did strike me as rather unusual, particularly as he had been sent along to provide us with a briefing in respect of this legislation.

The simple answer was that that information had not been sought by him or provided to him and that the only reason that he was being asked to present this to us was that it was an election promise. That in itself did raise some concern for me because the former attorney-general has had some weird and wonderful ideas in this house and presented them in the short time that I have been here and surprised us with the uniqueness of some of them.

As novel as some of them have been, one can sometimes expect that the peculiarity of these ideas would be a bit more prolific during election campaigns and that, after the heat of an election campaign, in the clear light of day when you sit down and look at the actual implementation of some of these ideas or promises or election commitments, sometimes the implementation is not warranted, is not cost-effective, is not sensible, is not even a good idea. When you look clearly at the matter, it can become at least apparent that what appeared to be a great idea at first blush actually is not worthy of pursuit.

In those circumstances, it is reasonable for the person in charge of that idea to come back to the parliament, if it has been a published election promise, and explain to the parliament that the basis of the apparent merit of a particular idea has now evaporated and, for x, y or z reasons, it is not going to be progressed.

I would have expected that, with the discontinuance of service as attorney-general by the member for Croydon and the appointment of the new Attorney-General, a fresh look at this legislation would have at least alerted the new Attorney-General to some of the defects of introducing this legislation without even making that inquiry himself apparently, as to whether there was a problem in the community, whether or not the current possession of instructions offence legislation was working and, if not, where the deficiency was. It seems that we have ended up with the realisation that they had made a promise to deal with an ill that was already covered, so they then went to another level to create the sale and supply without any foundation or basis upon which it would be necessary.

The opposition says that progressing with an idea, even if it does not have merit in the full examination of it, if you are going to do it at all—even on the basis that it might catch or deter somebody somewhere from getting involved in the acquisition of instructions and disposal of them to someone else—you do it comprehensively. In the first instance, the disappointment is that we are even here at all for an ill which has not been identified or of which there is no evidence of its existence and, in the second instance, if there is a possibility of it, we should do it properly, and clearly the government has not.

Another matter I mention is that on the day of the briefing by Mr Goode we were told that this bill was going out for consultation because, on inquiring about whether anyone else had been consulted, other than whatever advisers the Attorney and the Premier might have had during the course of the election campaign when they made this announcement and published this new policy, it seemed as though there had not been any consultation. In those circumstances, it was not surprising to hear from Mr Goode that the government, having introduced the bill in the parliament through the Attorney some days before and provided us with the briefing on it, had not gone to any consultation in that preceding 10 months but were going to do so.

So we come to 21 March, and I mention that because the joint party of the opposition met to consider this (it had clearly been tabled in the parliament), to consider whether this was necessary to support and, if it was not adequate, what amendments we might make. In principle, we were concerned across the board that there had not been any consultation, although our representative, the Hon. Stephen Wade in another place, having received the bill, sent it out for advice to stakeholders—at least those we could rapidly get advice to. Obviously, there was no opportunity to do that before the briefing on the 16th, but we were satisfied at that time of the advice that the government would be going out for consultation.

It is fair to say that we have not heard anything further from the government as to what consultation they have undertaken, what response they have received or whether, having consulted, they will undertake any further action or amendment. I understand that the Law Society (and I am looking for the copy of a letter from the Law Society, but I do not appear to have it here) has responded. They have indicated that an offence of supply would be sufficient to cover both instances of provision—that is, sale and supply.

The Law Society also suggests that the penalty for supply should be higher than that of possession since it involves a greater culpability, so I indicate that the opposition will be proceeding with amendments to make it an offence to supply or possess to supply precursor chemicals, to make it an offence for the sale and supply offence types (that is, sale and supply, possession with intent to sell and supply in regard to equipment) be modelled on the precursor provisions in section 33A and that possession with intent to supply instructions offence in section 33LAB consistent with the possession with intent to sell provisions in the proposed 33DA and 33GB.

I will refer to this at the time of introduction of the amendments, but they will provide for penalties on graduated amounts depending on whether there is a commercial quantity that is to be used for unlawful manufacture. There are several graduations, and I will refer to those at the time of the committee.

Disappointed as we are that the government had not come back with some particulars as to whom they ultimately did consult after introducing this bill and whether in fact there was any reaction to people in the community, this is in the category this time (unlike the previous bill that we were discussing) where there is a long gestation period, effectively 10 months from the announcement of the election. I am not sure before the election when this gem of an idea germinated in the mind of the former attorney-general and/or the Premier, but 10 months down the track, there has been no consultation. Obviously there was an indication that there would be consultation and then an expectation by the government, in the absence of both of those things, that the parliament should proceed to debate this matter.

The opposition has done the best it can, in the absence of any information, to work at least with the Law Society in respect of some amendments to try to fill the gaps that the government has obviously failed to deal with because essentially in going down this path, if it is justified at all, then it should be done properly.

Debate adjourned on motion of Hon. J.R. Rau.


[Sitting extended beyond 17:00 on motion of Hon. J.R. Rau]


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