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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-07-03 Daily Xml
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CONTROLLED SUBSTANCES (CONTROLLED DRUGS, PRECURSORS AND CANNABIS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 3479.)

The Hon. R.D. LAWSON (15:58): I rise to make a contribution to the second reading debate, and I indicate that Liberal members will be supporting the bill. I think it is worth beginning my remarks by referring to the record of the Rann Labor government in relation to drug policy. Members would recall that very early on in the term of this government the Premier established the much vaunted Drugs Summit. It was announced by the Premier in December 2001. Communiqués were issued and a large gathering of participants was held in June 2002.

As it transpires, the summit was appropriately held in the Adelaide Entertainment Centre because, frankly, all that came out of the summit was a high-sounding communiqué issued at the end of it. There were a number of ministerial statements, various media releases and announcements and, would you believe, a very glossy booklet produced by the government announcing its wonderful initiatives in relation to the recommendations of the Drugs Summit.

Regrettably, however, very little of lasting value came out of the Drugs Summit. Nobody should be surprised that, in February 2002, Monsignor Cappo prepared an evaluation report which gave the government full marks for its tremendous initiatives in this direction. Really, after the Drugs Summit was established, the Premier hardened his views in relation to drugs policy, realising that there was more political value and political kudos in adopting a law-and-order attitude to drugs policy rather than one that was therapeutic, rehabilitative or educative.

I am surprised that the Premier, given his new rhetoric on drugs policy, has not sought to renounce the philosophical underpinnings of the Controlled Substances Act. That act goes way back to a royal commission established by the Dunstan government on the non-medical use of drugs.

That commission, which reported in April 1979, was headed by Professor Ron Sackville, then of the University of New South Wales, and had two other members: Dr Earle Hackett, well known at that stage as the deputy director of the IMVS in Adelaide; and Richard Nies, who was head of the School of Social Studies at the South Australian Institute of Technology.

The approach taken by that royal commission was far different to what might be termed a law-and-order approach. It was, I believe, really a product of the 1970s. It downplayed, in effect, the seriousness of the drug issue and sought to adopt, in effect, a less criminalised approach.

The criminal offences in relation to illicit drugs were left in the Controlled Substances Act rather than taken into the general body of the criminal law. The Controlled Substances Act was left under the administration of the Minister for Health, rather than the Minister for Police, the Attorney-General or someone else who might take a rather more serious view of the criminal nature of much drug activity.

We have seen, in recent times, the approach that was originally espoused by Sackville being abandoned—and abandoned for unprincipled reasons—by this government. As recently as 2005, the government introduced a bill called the Controlled Substances (Serious Drug Offences) Amendment Bill. That bill was passed after much fanfare, with the Premier beating his chest saying that he is tough on drugs and makes no apology for it. People who sold drugs to children were to be massively penalised.

The Premier did not realise that the penalties were actually reduced in respect of some of those serious drug offences. Notwithstanding many press releases, ministerial statements, and exclusive releases to The Advertiser from time to time, it took some considerable time for the Controlled Substances (Serious Drug Offences) Amendment Act to come into operation.

Now it is discovered that that bill was not tough enough or tight enough: it did not meet all the requirements of the Commissioner of Police, and therefore this new tougher measure is being introduced. Once again, we have had a series of press releases, and we can expect the usual ministerial statements and self-promotion on the part of the government, proclaiming that it is tough on drugs and, once again, makes no apology.

As is acknowledged in the second reading contribution, the Commissioner of Police has argued that the legislation does 'not adequately provide intervention opportunities necessary to effectively prevent the manufacture of illicit drugs'. That is a quote from the Commissioner. He wants an offence of possession of precursor chemicals without lawful excuse; this being a recommendation from a resolution of the Australian Police Ministers Council.

I would ask the minister to indicate, when he responds or during the committee stage of this debate, when it was that the Police Ministers Council passed that resolution in relation to the possession of precursor chemicals. We accept the argument, of course, that, if the ingredients of illicit drugs are in the possession of persons without lawful excuse, a prima facie case exists for police action to be taken against them.

According to the second reading explanation, the Commissioner of Police has expressed the view that the offences which were introduced in 2005 dealing with precursor chemicals were not satisfactory because those provisions relied upon proof of an intention. It is normally the case that, where the possession of something is deemed to be an offence, not only must there be the physical element of possessing the substance but there must also be proof of an intention that it be used for some illicit purpose. That is one of the fundamental elements of criminal law.

It is now acknowledged that this government is bowing to a request from the Police Commissioner, who wishes to have the reliance upon the proof of intention removed. Once again, I ask the minister to indicate when it was that the Commissioner of Police expressed that particular view, because it is entirely unsatisfactory for this parliament to debate at great length (just a couple of years ago) an amendment and to now have the Police Commissioner indicating that it is unsatisfactory.

Why, one may ask, was that view not expressed previously? Or perhaps, if it was expressed, why was it that the government did not take that into account? Why was it that the parliament was not (on that occasion) advised of the reservation of law enforcement authorities? In the minister's second reading explanation he states:

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.

I ask the minister: to what recent events was he referring in that passage, and where were those events? I also ask him to indicate to which established practice in this state he was referring in that passage.

In another place the shadow attorney-general has indicated the opposition's general reluctance to accept criminal legislation that has essential elements contained in regulation rather than in the legislation itself. It is true that regulations can be disallowed by either house of parliament, although that is a step rarely taken. I once again reiterate the opposition's unhappiness with this style of legislation. Here we have the possession of drug equipment made a criminal offence, and a serious criminal offence, but the precise definition or nature of the drug equipment to be proscribed is not contained in the legislation. We are not given draft regulations, we are not aware of precisely what is to be included.

It is obvious that in drug laboratories equipment may be used for which there are perfectly legitimate grounds for possession. Equipment such as test tubes and the like may be used, which have no necessary criminal element; they might be used as much for illicit purposes as for licit purposes. I notice, for example, in the report of the Sackville committee, that as early as 1979 they were talking about the possession of pill-pressing machines. Now, no doubt a pill-pressing machine is something that pharmaceutical companies use for legitimate purposes. I ask the minister to indicate whether such machinery or items of equipment are intended to be proscribed. I also ask him to indicate when he contemplates that these proscriptions will be made, whether any other regulations are required and, if so, when they will be required. I ask that with particular memory of the fact that the 2005 legislation was passed but not proclaimed for a very long time, on the ground that the government did not then have regulations in place.

There are provisions dealing with what are described in the bill as 'artificially enhanced cultivation' of, I assume, cannabis. The Liberal Party has supported the criminalisation of the hydroponic cultivation of cannabis—indeed, we advocated that. The former Minister for Police, Robert Brokenshire, championed it, and this government ultimately sought to take credit for moving in that direction. Once again, we have no particular objection to the measures taken in relation to what is now called artificially enhanced cultivation of drugs.

This bill contains a provision relating to the sentencing of drug offences and, in particular, in relation to the manner in which methamphetamine is dealt with. This is a provision which we support. The courts have, to some extent, got themselves into something of a difficulty in relation to the scale of seriousness in regard to drug offences. In clause 14 of this bill there is an amendment to section 44.

I think it is worth placing on the record part of the reason why the courts have got themselves into difficulty about the manner in which they classify drugs for sentencing purposes. The court has adopted a broad approach of classifying drugs as most serious, middle range and low range. For example, heroin has been classified in the most serious category. Different categories have been adopted. For example, hashish is considered more serious than Indian hemp. In a decision as early as 1979, Tunis v Fingleton, methadone, cocaine, ecstasy, LSD and fantasy have all been classified as either middle or high range drugs. Amphetamines have been classified by the court as in the middle range of drugs, being more serious than hashish but less serious than heroin.

The most recent case in which this categorisation was referred to by the Court of Criminal Appeal is the decision in R v Sladic decided in 2005. That was a decision of the full court comprising Justices Gray, Sulan and Layton. Justice Layton, I seem to recall, was counsel assisting the Sackville inquiry many years before. The case of Sladic involved the sale of methamphetamines and the accused persons, ultimately found guilty, received a head sentence of 3½ years' imprisonment with a non-parole period of two years. In relation to the sentencing aspect, the Court of Criminal Appeal said:

In challenging the head sentence, counsel for the appellant argued that the notional starting point in accordance with the decision in Mangelsdorf [in 1995] for cases involving a 'middle range drug' should be within the range of four to five years...

The court continued:

The history of the categorisation of the drug family of methylamphetamine as being 'middle range', in this State commences with the decision of Pearce, in 1980. The Court described a drug of the same family as methylamphetamine as in the middle range of seriousness. In 1983, in Cronn & Bladon, King CJ adopted this classification and concluded that methylamphetamine and drugs of the same family should be regarded as the middle range of drugs.

The court continued:

This Court has not undertaken the review of the classification of methylamphetamine that has occurred in Western Australia. In that State, the Court has reclassified methylamphetamine as a drug in the higher range of seriousness.

The court also referred to a statement of Chief Justice Doyle in Mangelsdorf, a case to which I earlier referred, where he said:

In the matters heard by us the Director of Public Prosecutions did not ask the Court to review the standards which it has established, with a view to increasing them. The frequency with which offences involving trading in heroin, and indeed in other drugs, come before the Courts make me think that it may be necessary to do so in the future.

As it transpired, the court did not, in that particular case, seek to reclassify the seriousness.

I think it is appropriate that this parliament in legislation ought actually undertake the process of reclassification. The Criminal Law (Sentencing) Act and the Controlled Substances Act are legislation of this parliament, and it is appropriate that the parliament, which does have greater resources than the courts, can make judgments about how particular drugs are to be classified.

The way in which this legislation seeks to do that is somewhat circuitous by the insertion of new subsection (2) to section 44. The new clause will provide that, in determining the penalty to be imposed involving a controlled drug other than cannabis, cannabis resin or cannabis oil, 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, is not a relevant consideration, and the court must determine on the basis that controlled drugs are all categorised equally as very harmful.

In my view, that is a fairly crude instrument for dealing with this issue. To simply say that all controlled drugs are categorised as equally very harmful is entirely artificial, and I do not believe that the intent of parliament will be fully reflected in the judgment. We ought in this parliament to be adopting a more sophisticated and more scientific approach.

The Hon. Sandra Kanck interjecting:

The Hon. R.D. LAWSON: The Hon. Sandra Kanck asked, quite reasonably, are we going to oppose it? No; we are not going to oppose it. We believe it is appropriate that something be done. We do not believe that this is necessarily the most appropriate way to go; however, this is the government's intended solution to this problem. Here, what we propose to do is support this measure as far as it goes, to see how it operates in practice. We hope that the courts will apply it in the way in which it is intended by members of parliament. Perhaps they will; I suspect that they will not and that we will have to revisit this provision in the fullness of time.

With those remarks I indicate that I look forward to receiving the minister's response to the questions I have asked. If we have to wait until the committee stage for that, I am quite satisfied with that solution, but we will be supporting the second reading.

The Hon. SANDRA KANCK (16:26): This is yet another bill that highlights the way our society has become completely hysterical about drugs. Many people, including our community leaders, have swallowed sensationalist media coverage and take all sorts of fixed positions without taking the trouble to inform themselves about the science of drugs, and that is exactly what this bill does. Other people, such as our Attorney-General, exploit the resulting irrational fear in order to win popularity.

Most drugs, legal and illegal, are potentially dangerous, but the best way to guard against those dangers is to think clearly and to legislate accordingly. From that perspective, over the past 30 years the Democrats have pioneered the campaign against one of the more dangerous drugs—tobacco—and I have been calling for action on alcohol for years. These concerns, like my views on other drugs, are based on careful research and consideration about the nature of drugs and the sorts of policies that might work best. This is bad legislation, because it is not based on any scientific evidence, and it might even lead to more dangerous use of drugs.

I will focus on two key provisions of this bill, one about which I have major reservations and the other which I think is quite ridiculous. The first concern relates to clause 12, inserting new section 33LB, which relates to possession of a prescribed quantity of a controlled precursor. New subclause (2) provides:

Subject to subsection (3), a person who has possession of a prescribed quantity of a controlled precursor and—

(a) a prescribed quantity of another kind of controlled precursor; or

(b) any prescribed equipment,

is guilty of an offence.

Maximum penalty: $15,000 or imprisonment for 5 years, or both.

Subclauses (3) and (4) then go on to provide that a person can give a reasonable excuse for possessing those substances and equipment, but they have to prove their innocence, not the other way around. This means that, if police find a person with the equipment or substances required to manufacture drugs, they will not have to prove that the person intended to manufacture those drugs.

I and my party have always been reluctant to reverse the onus of proof. The concept of onus of proof has been incorporated into our judicio-legal system precisely to stop the abuse of power by the authorities. Sadly, I recognise that, in our comfortable country, abstract ideas like 'innocent until proven guilty' do not carry much weight, and the Rann government is beginning to make the approach 'guilty until proven innocent' a specialty. If the proponents of this approach were to do a little research rather than take an ideological position, its flaws would quickly be revealed to them. The central problem is that many drug labs are based on very ordinary equipment. I quote Lisa Madigan, the Attorney-General of Illinois, as follows:

It is important to understand, however, that meth production sites are not really laboratories at all. When we think of laboratories we think of highly educated scientists in clean white coats conducting controlled experiments with advanced equipment in an antiseptic environment. Meth labs are nothing like this. The equipment used to make meth consists not of advanced scientific apparatus but instead common household items such as mason jars, coffee filters and plastic soda bottles. Most of the ingredients used to make meth, such as cold tablets, lithium batteries and Coleman fuel can be purchased at local drug, hardware and farm supply stores. The best way to describe the appearance of a typical meth lab is that it looks not like a real laboratory but more like a dirty kitchen.

It is good to know that the Illinois' Attorney-General has this understanding, even if our Attorney-General does not. We are debating a bill that relates to common household items, and it has practical consequences for the operation of this bill, namely, that the police can charge people for the possession of batteries and soft drink bottles. Many of the ingredients required to manufacture drugs, such as cold tablets, are also very commonplace. It seems that under these clauses a regulation could be made that would enable someone to be charged for having a small quantity of cold tablets, some batteries and a Bunsen burner and, unfortunately, the quantities of the precursors will be specified in the regulations, so we are to some extent left guessing in dealing with this bill.

The combination of these provisions will give the police significant new powers, and with that power goes the potential for abuse and mistakes. These sorts of expansions of police powers ought not be considered until we have a watchdog, an ICAC. This bill also includes a provision that is utter nonsense. This is that part of the bill that I said I would be addressing because it is ridiculous, and in the true sense of that word members of the South Australian parliament who support this provision ought to be ridiculed. Clause 44(2) provides:

In determining the penalty to be imposed in respect of a summary or indictable offence against part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.

In other words, we are going to be equally tough on all drugs because all drugs are very harmful. That is absolute nonsense. It is exactly the sort of thinking that led to my being criticised for suggesting research into the medical benefits of MDMA. Such criticisms have come from people who do not have any reservations about the use of potentially addictive pain relievers such as morphine or tranquillisers like valium.

Drugs are potentially dangerous, but I argue—and most rational members in this place would agree—that drugs differ in the type and level of danger and, as the Hon. Robert Lawson has pointed out, we have seen our judges making decisions based on the level of harm. Yes, there are dangers, but should we put MDMA in the same category as heroin, as this legislation does? The debate about drugs in the United Kingdom is very instructive because it has provided the science that can allow sensible decision making. The UK has a 35-year old system for classifying illegal drugs as class A, B or C substances. The penalties for possessing them or dealing in them reflect that graded classification.

Two years ago David Nutt, a senior member of the UK Advisory Council on the Misuse of Drugs, and Colin Blakemore, the Chief Executive of UK's Medical Research Council, published in The Lancet an analysis of 20 substances that looked at their addictive qualities, social harm and physical damage. That analysis produced strikingly different results from the government's drug classification system. Key findings were that heroin and cocaine, both class A drugs, topped the table of harm. Tobacco was placed ninth, ahead of cannabis, placed 11th. Alcohol, tobacco and solvents, all of which can be bought legally, were judged more damaging than LSD, which ranked 14th, while ecstasy ranked 18th.

I remind members and any media that might seek to distort what I am saying that these are not my opinions but the conclusions of highly respected British scientists. A number of MPs on the House of Commons Science and Technology Select Committee have had the courage to respond to this evidence and have called for a new scale to be introduced, rating substances on the basis of health and social risks and not linked to legality or potential punishments. The committee's chair, Phil Willis, said, 'This research shows why we need a radical overhaul of the current law and a radical review of the classification system.' The United Kingdom at that time was in the middle of a fierce debate about binge drinking and it may have helped legislators to put drug abuse into a more sensible context.

In that study heroin was ranked the most dangerous drug and it was already class A under the UK government's drug ranking framework. Heroin was used by 40,000 people in the UK in 2004 and led to 744 deaths. Cocaine, which was ranked No. 2 and is also a class A drug, had 800,000 people using it and 147 deaths resulting. LSD was also listed as a class A drug, despite being used by 70,000 people and not being associated with any known deaths. The Lancet article ranked LSD 14th out of 20. Ecstasy is a class A drug in the UK, but it ranked 18th in the analysis of harm because, despite having 800,000 users, only 33 deaths had been attributed to it. One might say that 33 deaths is 33 deaths too many, but then you would have to explain why the UK tolerates tobacco, which is not in any of its classifications A, B or C, when it was responsible for 114,000 deaths in the UK in 2004.

The research, by the way, ranked tobacco ninth in its harms analysis. We can argue about whether every drug has been ranked correctly, but at least the UK Drug Table of Harms provides the basis of some sort of objective criteria. It does not say that all drugs are equally very harmful, and it can be altered when new scientific evidence becomes available. By contrast, we have the patently absurd 'all drugs are equally dangerous' mantra of the South Australian government. This is not just a matter of intellectual dishonesty: this ideological thinking could have disastrous practical consequences.

To understand this, it is important to reflect on the most basic lesson of drug policy. Tough penalties have never succeeded in stopping people using and selling drugs. Just look at what happened with the prohibition of alcohol in the 1920s in the US. Many Asian countries impose the death penalty for possession, but it has not stopped either possession or trafficking. China has annual public mass executions of 50 to 60 drug users at a time, yet drug use continues. These new laws contemplated by the South Australian government (and it would appear most members in this place) will not reduce drug use. They might drive it under cover, or they might change the pattern of drug use in a way that will increase the danger to South Australians—the latter is my prediction.

If there is no difference between the penalties for different drugs, then, all other things such as supply and ease of manufacture being equal, there will be no reason for drug manufacturers and users to choose LSD (which is comparatively safe according to the UK results) over the much more dangerous heroin. In other words, this law could increase the use of more dangerous drugs. How bloody stupid can we get in this parliament? We need to establish whether there are unintended consequences, and it is very clear to me that this government has not looked to see whether there are unintended consequences. In considering this bill, it is also important for members to reflect on the result of different approaches to drugs.

The case of needle exchange is powerful proof that simplistic tough-on-drugs policies can actually cost lives. Back in the 1980s, when faced with an outbreak of HIV/AIDS, Australia correctly treated intravenous drug use as a health problem, not as a law and order problem, in order to deal with this particular health issue. The US took a heavy-handed, anti-drugs approach and ended up with almost 20 times the rate of HIV infection on a per capita basis compared to Australia. The US spends $25 million each year on needle and syringe programs compared to Australia's $32 million, and the difference shows clearly in the HIV figures.

A 2001 review of needle exchange programs by the commonwealth Department of Health and Ageing showed that these programs saved at least $2.4 billion in health costs, prevented 4,500 deaths from AIDS and 25,000 HIV infections and prevented 21,000 hepatitis C infections. The US approach by contrast shows the dangers of a moralistic and hysterical response to the social policy challenge on drugs. By the same token, there are times when our society has been too blasé about some drugs. We have clearly ignored the threat of alcohol and, as a result, thousands have died. The 70s generation ignored the simple dangers of deliberately inhaling carbon into the lungs when smoking cannabis.

But when faced with controversial issues, such as illicit drugs, it is our responsibility (unlike what the opposition is saying) to have the courage to resist political pressure and to be calm enough and to think through the issues and the argument rationally and to reject aspects of law such as this that is based on myth and superstition. My mind reels at the appallingly inaccurate contention that is in this bill that all illicit drugs are equally harmful. It flies in the face of good science and therefore also flies in the face of any justice associated with its implementation. It is legislation that makes South Australia a laughing stock.

The government has failed in its responsibility by introducing such flawed legislation, and the opposition is failing by supporting it. Nevertheless, before we get into committee, I urge members to rethink this and to analyse this bill critically. Sadly, from the speeches that have been made so far, I suspect that the moralistic tough-on-drugs incantation will be the only driver. I will not be supporting the second reading of this bill, which is likely to cause more harm than the harm it attempts to address.

Debate adjourned on motion of Hon. R.P. Wortley.

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