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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-05-07 Daily Xml
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CONTROLLED SUBSTANCES (CONTROLLED DRUGS, PRECURSORS AND CANNABIS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (00:45): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This is a comprehensive reform Bill dealing with a range of issues about controlled illegal drugs. This Government is determined to deter illegal drug use and offenders against the law in this State. It will continue to reform the law as and when needed to do so.

The Bill proposes big changes to the law with this general purpose in mind. It carries out some Government election pledges. In particular, it increases the penalties against the cultivation of hydroponic cannabis and requires the courts to treat amphetamines alongside the most serious category of illicit drugs. It revamps the way in which precursor substances are controlled in this State and introduces major new offences aimed directly at those who are operating drug laboratories in this State. It forms a strong measure as a part of this Government's pledge to crack down on organised crime, particularly motor cycle gang crime. The Commissioner of Police has urged these measures.

The Bill also proposes amendments to the Act to smooth further movement to a national standard for the regulation of controlled drugs and substances generally, with the aim of toughening the law, and proposes some miscellaneous amendments that have been urged on the Government from a variety of sources.

Election Promises

At the last election, the Labor Party made an election promise about drugs. It said in part:

If re-elected, Labor will:

create a specific offence of cultivating cannabis hydroponically;

legislate to ensure 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;

make the possession of firearms in conjunction with drug offences an aggravating feature of the drug offence, attracting higher penalties.

The amendments proposed in this Bill directly and specifically enact the election promises detailed.

The Regulation of Precursors

The Commissioner of Police has argued that the Controlled Substances Act 1984 and the amending Controlled Substances (Serious Drug Offences) Amendment Act 2005 'do not adequately provide intervention opportunities necessary to effectively prevent the manufacture of illicit drugs'. He wants an offence of possession of precursor chemicals without lawful excuse. The basis for this argument is a resolution of the Australian Police Ministers' Council (APMC).

Precursor chemicals and the manufacture of synthetic illegal drugs are currently controlled directly in two ways.

First, there are current minor offences dealing with precursor chemicals. They are in Part 6 of the Controlled Substances (Poisons) Regulations 1996. This is a sophisticated scheme of regulation, although the penalties ($3,000-$5,000) are small because they are limited to the maximum permitted for regulations. The scheme is:

It is an offence to manufacture, sell, supply or be in possession of listed chemicals without a permit from the Minister. There is no other lawful excuse for this.

It is an offence to sell some listed precursors unless a particular regime applies, which includes purchaser identification and an end user statement, including keeping comprehensive records of purchase for at least five years. This list includes pseudoephedrine.

It is an offence to sell some listed chemicals with another less stringent identification and end user regime, but with an obligation to report suspicious purchases to the police.

The list of chemicals in each case is different based on their legitimate uses.

The Controlled Substances (Serious Drug Offences) Amendment Act 2005 contained new serious offences of dealing with precursor chemicals. The Commissioner of Police thinks they are not satisfactory for catching drug laboratories because they rely on proof of an intention.

An extensive national list of 'controlled precursors' has been developed by the Intergovernmental Committee on Drugs (IGCD) for the purpose of the new offences.

The models of regulation of precursor chemicals in drug legislation throughout Australia vary markedly. I have decided on a new approach that mirrors recent events elsewhere and also takes into account established practice in this State.

There will be an offence of possession of more than a prescribed amount of precursor chemicals listed in regulations without lawful excuse. It is contemplated that the list of precursor chemicals will be that list of controlled precursors to be used for the purposes of the serious drug offences legislation. It is contemplated that the specified amounts will be the trafficable amounts determined by the national model schedules working party. The applicable maximum penalty will be three years imprisonment or $10,000 unless the offence is aggravated. The offence is aggravated if the offender is found either (a) in possession of two or more chemicals above the prescribed amount; or (b) in possession of one chemical above the prescribed amount and one or more prescribed items of drug equipment. The applicable maximum penalty for the aggravated offence is to be five years' imprisonment or $15,000. What will or will not be a listed drug apparatus will be prescribed by subsequent regulation.

There will be an offence of possession of any amount of any listed precursor chemical or an item of prescribed drug equipment with intent to manufacture a controlled drug. The applicable maximum penalty is to be five years imprisonment or $15,000.

The Act will be amended to allow the Minister to issue a permit for the possession, sale or supply of precursor chemicals listed for this particular purpose. It is contemplated that this list of chemicals will resemble those currently listed under what is now regulation 32.

The Act will be amended to contain the schemes now contained in regulations 33 and 34. If the possessor of the chemicals complies with these statutory requirements, that compliance should be deemed to be a lawful excuse for possession. It is contemplated that the lists of chemicals to which these schemes apply will be retained. The applicable maximum penalties in each case will vary according to the severity of the offence from imprisonment for 12 months or $1,000 to imprisonment for three years or $10,000.

Section 33 of the Controlled Substances Act 1984, inserted by the Controlled Substances (Serious Drug Offences) Amendment Act 2005 contains tiered offences of manufacturing a large commercial quantity, a commercial quantity and a lesser quantity of controlled drugs with the intention of selling any of it or in the belief that another person intends to sell any of it. Section 33(4) contains a presumption. If the defendant manufactured a trafficable quantity of the controlled drug, the necessary intention of on sale is presumed in the absence of proof to the contrary. The common law says that the tiered offences will also be committed if the defendant attempts to manufacture or conspires to manufacture the quantities. I propose that the presumption be amended so as to provide that if the defendant attempts or conspires to manufacture a trafficable quantity of a controlled drug, the necessary intention of on sale is presumed in the absence of proof to the contrary for the purposes of an attempt offence or a conspiracy offence.

Amendments For New Regulations

The nationally prescribed Regulations (and related matters) require the Act to be amended so as to:

permit the specification of prescribed amounts of controlled precursors in their pure form as well as their mixed form;

permit the specification of certain kinds of chemicals as discrete dosage units so as to preclude arguments that the medium on or in which a pure amount is contained constitutes an adulterant;

permit the specification of amounts of controlled plants both by weight and by number; and

amend the defence of lawful manufacture, supply, administration or possession of controlled substances or equipment so that the defence is not confined to drugs of dependence but may extend, by regulation, to any controlled substances or equipment other than that specified by regulation.

Miscellaneous Amendments

In consultation, the Minister for Mental Health and Substance Abuse requested two amendments unrelated to election promises but which have awaited a miscellaneous reforming bill. They both need to be done.

The first concerns delegation. It consists of two amendments to section 18A. Section 18A deals with prescription of drugs of dependence and Ministerial authority to do so. Section 18A(6) allows a member or officer of the Department to authorise prescription temporarily in an emergency. When Pharmaceutical Services staff moved from the Department of Health and became employees of the Southern Adelaide Health Service, they were no longer officers or members of the Department. It is therefore proposed to amend the sub section to simply refer to the Minister. The second amendment is to section 18A(8). This also refers to authorities to prescribe. The current section deals only with revocation. The Minister was advised that there was legal uncertainty about the status of conditions placed upon the authority to prescribe. It is proposed to amend section 18A(8) to replace uncertainty with clarity.

The second technical amendment concerns regulations. It occasionally happens that codes, standards and other documents are picked up by the regulations or otherwise incorporated by reference. Section 63(5) says that the regulations may refer to or, by reference, incorporate (with or without modifications) any code, standard, pharmacopoeia or other document published inside or outside of this State and a code, standard, pharmacopoeia or other document so referred to or incorporated has effect, as amended from time to time by the authority responsible for its publication, as if it were a regulation made under this Act. The question is as to the status of the incorporated document. At the moment it seems that the incorporated document itself becomes a regulation. That is not sensible. There is no reason to apply the Subordinate Legislation Act to, say, the TGA Therapeutic Goods Order and every reason not to. The proposed amendment makes it clear that this is not so.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Controlled Substances Act 1984

4—Amendment of section 4—Interpretation

This clause amends the definitions section of the Act. A definition of artificially enhanced cultivation is inserted for the purposes of the Act (being the same as the definition that currently appears in section 45A of the Act in relation to simple cannabis offences, but not limited to that section). There is also a new definition of authorised officer which will apply generally to the Act (and not just to Part 7) and the definitions of commercial quantity and large commercial quantity are substituted with new definitions that will allow the regulations to prescribe amounts for mixtures containing a controlled precursor (where currently the provisions about mixtures apply only to controlled drugs) and these new definitions, as well as the proposed new definition of trafficable quantity, will also allow the regulations to prescribe amounts for mixtures in terms of discrete dosage units of the mixture. Consequentially to propose new section 33OA(2), the new definitions also specify that the regulations may prescribe amounts in relation to controlled plants by reference to a number of plants or the weight of the plants.

5—Amendment of section 6—The Controlled Substances Advisory Council

This clause makes a minor amendment to section 6 to specify that the presiding member of the Advisory Council may be a member of the Department or of another administrative unit of the Public Service, or body incorporated under the South Australian Health Commission Act 1976, involved in the administration of the Act.

6—Insertion of sections 17A, 17B and 17C

This clause inserts a number of new offences into the Act relating to precursors. The new offences are based on provisions currently contained in the Controlled Substances (Poisons) Regulations 1996 but have increased penalties.

7—Amendment of section 18A—Restriction of supply of drug of dependence in certain circumstances

This clause amends section 18A—

to remove the reference to "a member or officer of the Department, authorised generally or specifically by the Minister" in the provision dealing with the grant of a temporary authorisation. Removing these words will allow the Minister to delegate this function as the Minister thinks fit;

to specifically provide for the imposition of conditions on authorisations and to provide for variations to such conditions.

8—Amendment of section 31—Application of Part

This clause amends section 31, which specifies exceptions to the offences in Part 5 of the Act. Paragraph (a) of subsection (1) is substituted to allow for exceptions relevant to the proposed new offences in clauses 10 and 12 and the remaining paragraphs of that subsection are amended to allow for exceptions relating to controlled drugs other than just drugs of dependence.

9—Amendment of section 33—Manufacture of controlled drugs for sale

This clause clarifies the application of the presumption in subsection (4) where the proceedings are for an offence of attempting or conspiring to commit an offence against section 33(1), (2) or (3).

10—Amendment of section 33J—Manufacture of controlled drugs

This clause creates a new offence of having possession of a controlled precursor or prescribed equipment intending to use the precursor or equipment (as the case may be) to manufacture a controlled drug. The offence is punishable by a fine of $15,000 or imprisonment for 5 years or both.

11—Amendment of section 33K—Cultivation of controlled plants

This clause amends section 33K to—

provide that cultivation of any number of cannabis plants by artificially enhanced cultivation is an offence against subsection (1) (which currently has a penalty of $2,000 or 2 years imprisonment);

increase the penalty for an offence against subsection (2) to $1000 or imprisonment for 6 months (currently the penalty is a fine of $500);

ensure that, despite the penalty increase in subsection (2), those offences against that subsection that would be expiable under section 45A will not be punishable by imprisonment.

12—Insertion of section 33LB

This clause inserts a new section creating 2 new offences. The first makes it an offence to possess a prescribed quantity of a controlled precursor. This offence is punishable by a fine of $10,000 or imprisonment for 3 years or both. The second makes it an offence to possess a prescribed quantity of a controlled precursor and either a prescribed quantity of another controlled precursor or any prescribed equipment. This offence is punishable by a fine of $15,000 or 5 years imprisonment or both. Both of these offences are subject to the defence of reasonable excuse set out in subsection (3) of the proposed provision.

13—Insertion of section 33OA

Proposed new section 33OA sets out provisions relating to charging of offences.

14—Amendment of section 44—Matters to be considered when court fixes penalty

This clause makes 2 amendments to section 44. Firstly, proposed new subsection (2) provides that a court sentencing a person for an offence against Part 5 involving a controlled drug (other than a cannabis offence)—

must not take into account the degree of physical or other harm generally associated with consumption of that particular type of controlled drug, as compared with other types of controlled drugs; and

must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.

The second amendment is proposed new subsection (3) which requires a court that convicts a person of both—

an indictable offence against the Controlled Substances Act 1984; and

an offence against section 32 of the Criminal Law Consolidation Act 1935 constituted of having a firearm for the purpose of carrying or using it in the commission of the offence against the Controlled Substances Act 1984,

to make any sentences of imprisonment for those offences cumulative unless the court is satisfied that special reasons exist.

15—Amendment of section 45A—Expiation of simple cannabis offences

This amendment is consequential to clause 4 and clause 11 and deletes the current definition of artificially enhanced cultivation.

16—Amendment of section 50—Authorised officers

This amendment is consequential to clause 6.

17—Amendment of section 51—Analysts

This amendment ensures that sufficient analysts can be appointed for the purposes of the Act (rather than just for the purposes of Part 7).

18—Amendment of section 56—Permits for research etc

This amendment allows a research permit to be issued relating to a controlled precursor.

19—Amendment of section 61—Evidentiary provisions

This clause amends section 61(1) so that the evidentiary certificate provided for in that subsection will be issued by the Minister rather than by a member or officer of the Department. This function would be able to be delegated by the Minister.

20—Amendment of section 63—Regulations

This clause amends the regulation making power to allow the regulation to refer to a code, standard, pharmacopoeia or other document either as in force at the time the regulations are made or as in force from time to time.

Debate adjourned on motion of Hon. D.W. Ridgway.

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