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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-05 Daily Xml
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CONTROLLED SUBSTANCES (CULTIVATION OF CONTROLLED PLANTS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 14 November 2007. Page 1319.)

The Hon. R.P. WORTLEY (19:46): This bill proposes to eliminate some recent government amendments to the Controlled Substances Act 1984, contained in the Controlled Substances (Serious Drug Offences) Amendment Act 2005. The provisions outlined in the bill under discussion would set a blanket penalty of $10,000 or two years imprisonment or both for the offence of cultivating any controlled plant, including cannabis. Essentially, this bill would treat cultivating cannabis in the same way as the production of any other serious drug. The bill would also bring into closer proximity the acts of cultivation and manufacturing and, effectively, equate any cultivation with an intention by the grower to sell the drug to a purchaser.

However, the offence carries a very low maximum penalty of two years' imprisonment, regardless of the seriousness of the offending. The government's recent amendments recognise that any cultivation of cannabis is an offence. We make no apology for being tough on illicit drugs, not only because of the well-documented damage they can cause to an individual user but also because we recognise the extended harm caused to our community, such as robberies committed for the purchase of drugs and the activities of outlaw bikie gangs.

Even so, cannabis is not like any other serious drug. In fact, it is the most widely used drug after alcohol and tobacco. It is quite prevalent in our community. Nearly two in every five Australians aged 14 or older (39 per cent) at some stage have used cannabis, according to the Australian Institute of Health and Welfare. I put on the record that I have not.

Surely, almost 40 per cent of Australians cannot be hardened criminals, but this is what the bill before us implies. There is no doubt that some users grow small amounts of cannabis for their own consumption. That is why the government's amendments imposed a hierarchy of sanctions. These depend on a number of factors, such as the quantity of cannabis being cultivated and the intended end user.

At the last election Labor promised to crack down even further on drugs. We promised to create a specific offence for cultivating cannabis hydroponically and legislate to ensure that courts treat the manufacture, sale and distribution of amphetamines, ecstasy and similar drugs at a higher level of the penalty range rather than the mid-range; and make the possession of firearms in conjunction with drug offences an aggravating element in the drug offence, thereby attracting a higher penalty.

In my view the government's recent amendments are preferable, being more proportionate to the offence than those proposed here. I offer a few instances of their operation for members' consideration. The expiation fee for cultivating just one non-hydroponically grown cannabis plant has been doubled from $100 to $300. If there is more than one plant, the offence is not expiable. This legislative position means that, while personal use of cannabis is an offence, it is not treated as a serious drug for penalty purposes.

Proponents of the bill may be of the view that the prescribed number of plants permitted for personal consumption will remain at 10. That is not accurate. Growing even one cannabis plant hydroponically would attract a maximum fine of $500. Any more than five plants would attract a maximum fine of $2,000 or two years' imprisonment or both. A similar situation applies for any cultivation where there is supply or intended supply. The grower will attract that same penalty of $2,000 or two years' imprisonment, or both.

Moving up the hierarchy, there is a presumption of sale if a trafficable quantity of cannabis (250 grams or more) is cultivated, resulting in a penalty of $50,000 or 10 years' imprisonment, or both. A penalty of $200,000 or 25 years' imprisonment, or both, will be incurred if a commercial quantity of cannabis is cultivated. (A commercial quantity is defined as one kilogram of pure cannabis, or 2.5 kilograms if mixed with other material.) The liability incurred for the cultivation of a large commercial quantity of cannabis (being two kilograms of pure cannabis or 12.5 kilograms if mixed) is $500,000 or life imprisonment, or both.

The quantities I have outlined in setting out the hierarchy of sanctions reflect the recommendations of the national Model Criminal Code Officers' Committee. Indeed, it is in the spirit of the government's view on drugs that our amendments are even tougher on cannabis transactions involving children: these will attract a penalty of $1 million or life imprisonment, or both.

My remarks make it quite clear that the government considers that the recent amendments reflect both contemporary reality and are proportionate to it. For the reasons I have outlined, I oppose the bill.

The Hon. D.G.E. HOOD (19:51): I will not detain the council; I understand the numbers in the chamber. This bill is really an attempt to do one simple thing: to provide a strong disincentive to grow cannabis for on-selling. Under current legislation, the growing of up to five cannabis plants with, I am told, a street value in some cases of up to $40,000 attracts a maximum penalty under South Australian law of $500. That is the maximum a judge can impose: judges have before them no other penalty options whatsoever; that is the maximum. Potentially, if a person is growing a crop worth up to $40,000, or let us say that it is even half that—say it is a poor crop this year, and they grow $20,000 worth of cannabis—the maximum penalty that can be imposed on them under current law is $500.

The Hon. A. Bressington: By the regulations.

The Hon. D.G.E. HOOD: By the regulations. How that is tough on drugs—

The Hon. B.V. Finnigan interjecting:

The Hon. D.G.E. HOOD: Indeed. I do not understand how that is tough on drugs; it is just a fantasy to suggest that. The Hon. Mr Wortley may not have prepared that speech himself, but I suggest that he gets a new speech writer because—

An honourable member interjecting:

The Hon. D.G.E. HOOD: Well, maybe he did. The suggestion that the current regulations are tougher than this legislation is absolutely ridiculous. Put simply, what this bill does is it allows judges to impose much stricter penalties for people who are growing cannabis. To the government's credit, under the regulations, it used to be that 10 plants and above was the number at which the tougher penalties applied, and the government has now reduced that to five plants. Family First heartily supports that and gives the government credit for it.

But the truth is that five plants can still fetch approximately $40,000 on the street and, if the maximum penalty is $500, what is the disincentive to stop doing it? Let us be clear: the penalty is $500 maximum no matter how many times I have been caught doing it; I could be caught doing it a thousand times. Indeed, I have looked at the court cases, and there are literally dozens and dozens of examples of people who have been caught growing multiple cannabis plants. They are usually slapped with not the maximum but a $300 or $400 fine and, you know what, they are back in the courts six weeks later for exactly the same offence. Why? Because there is no disincentive to stop doing it.

If I can earn $40,000 by growing five plants and the maximum fine that can be imposed is $500, why would I stop doing it? If I can get $39,500 tax free, why would I stop doing it? There is no disincentive whatsoever under the current law to stop doing it. This bill would correct that once and for all. What is more, it is not a particularly draconian penalty I am proposing. All I am proposing under this bill is that judges have the option—and I mean the option—to impose penalties up to a maximum of $10,000 (which is still about a quarter of what can be earned through growing these plants) and/or up to two years' imprisonment.

I do not envisage that many people will go to gaol for growing cannabis. In fact, no-one goes to gaol for that at the moment. Under this bill, judges will at least have the option to impose other penalties, such as community service orders, for example. They would have options available. At the moment, the only option available to a judge is a financial penalty to a maximum of $500, regardless of how many times the offence has been committed. What a joke. How can that be considered to be tough on drugs? It is anything but.

The Hon. R.P. Wortley: For self use.

The Hon. D.G.E. HOOD: The Hon. Mr Wortley says: for self use. Five plants would supply somebody for years. It just absolutely defies belief. Be that as it may, I understand that the government does not support the bill, and that is disappointing, to say the least.

In summing up, having explained what the bill is really about, I would like to thank members for their contribution. I thank the Hon. Ms Bressington, who contributed way back in June last year; although she has indicated her opposition to this bill. I thank the Hon. Ms Kanck for her contribution back in July last year; I thank the Liberal Party, which indicated its support back in November last year; and, indeed, the government, which has put forward its position this evening through the Hon. Mr Wortley.

The Hon. B.V. Finnigan: Ably.

The Hon. D.G.E. HOOD: Ably and succinctly, although I am afraid I cannot help but disagree with everything that was said. I would also like to draw some comparisons with the penalties that exist in other states. Needless to say, we are at the absolute bottom of the scale with respect to penalties for this offence.

In New South Wales the penalty is—guess what?—up to two years' imprisonment; exactly what I have proposed. The penalty in Victoria is up to one year imprisonment; in Queensland it is up to 15 years' imprisonment for the same offence; and in Western Australia it is up to two years' imprisonment. Why should we be at the bottom end of the scale? The suggestion by many people interstate and, indeed, in this state that we are indeed the cannabis capital is absolutely correct. The fact that the government refuses to acknowledge that is really disappointing and only serves to reinforce the fact that, indeed, we are the cannabis capital.

I will quote some statistics which prove that cannabis is not a harmless substance, as many people often suggest. Research at Yale University in the US has shown a clear link between cannabis use in teenage years and mental illness later in life. The report states:

Those who smoked the drug regularly at 18 were 1.6 times more likely to suffer serious psychiatric problems, including schizophrenia, by their mid-20s.

Just five or six years later. It goes on to state:

For those who were regular users at 15, the stakes were even higher, with their risk of mental illness being 4.5 times greater than normal.

It is little wonder that Holland has such a high rate of schizophrenia, given their weak and lax laws with respect to cannabis. I will quote another few facts with respect to the danger that cannabis presents to our community. Other research carried out at the Maudsley Hospital—a major psychiatric hospital in the UK—has also suggested that the interference with brain function caused by cannabis can cause permanent damage, particularly in cases where young teenagers were consuming the drug. The report states:

For those who started up in their early teens, there is some evidence that, five or 10 years after they have stopped, they are left with cognitive impairment.

This is not a harmless drug, but our laws suggest that it is. If passed, this bill will change that. The penalties are not draconian: the maximum penalty is $10,000 and the maximum term of imprisonment is up to two years. I do not envisage that many people would receive those maximum penalties. Certainly, at the moment, nobody receives those maximum penalties. Our penalties in South Australia are clearly at the absolute bottom rung of any of the penalties nationally. Why shouldn't they be the same here?

This is a significant bill, because cannabis is a gateway drug to other drugs, and we know that for certain; the research is overwhelming. If we are serious about tackling the problem of drugs in our community, why shouldn't we start with a drug that most people try and which leads them to other drugs? For that reason, I commend the bill to members and ask for their support.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A. BRESSINGTON: I reiterate what the Hon. Dennis Hood said but take another tack. Apart from the fact that cannabis is a gateway drug (which people seem to reject, despite the scientific evidence), the fact I think the figure quoted last year by the head of mental health was a 75 per cent increase in drug-induced psychosis, and the fact that cannabis and crystal meth were the main drugs, we are playing with the future of our kids and their wellbeing.

I do not care about the popularity of the drug, neither do most of the parents out there—the parents of the one in four who are smoking this stuff. It is a bit like saying that if a phase started with kids wanting to consume rat poison, and one in four thought it was a good idea, why would we act on it? This is as much about protecting the future of our children as it is about protecting the so-called rights of adults to smoke dope. None of the bills that are put up in this place target people who are not problematic drug users.

The CHAIRMAN: I remind the honourable member that we are in committee. She has spoken to the second reading, and I do not intend to allow her to make another second reading speech. We are on clause 1 of the bill in committee.

The Hon. A. BRESSINGTON: What can I speak on? I thought that in the past you could be pretty general with clause 1, but I will not make a second reading speech. I do not understand the government's schizophrenic approach to drug policy in this state or the fact that apparently it is important to be in line with other states on legal practices and so on but not on drug policy. There seems to be a divide: we will be in line on some issues but not on others.

The Hon. R.I. Lucas: Too much jungle juice.

The Hon. A. BRESSINGTON: Maybe too much jungle juice, as the Hon. Rob Lucas says. I think that the parents of the kids of our state, who are dealing with their children and psychosis and schizophrenia, expect better of this place.

Clause passed.

Remaining clauses (2 to 5) and title passed.

Bill reported without amendment.

Third Reading

The Hon. D.G.E. HOOD (20:04): I move:

That this bill be now read a third time.

The council divided on the third reading:

AYES (10)

Bressington, A. Darley, J.A. Dawkins, J.S.L.
Evans, A.L. Hood, D.G.E. (teller) Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Schaefer, C.V.
Wade, S.G.

NOES (7)

Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. Kanck, S.M. Parnell, M.
Wortley, R.P. (teller)

PAIRS (4)

Ridgway, D.W. Zollo, C.
Stephens, T.J. Hunter, I.K.


Majority of 3 for the ayes.

Third reading thus carried.

Bill passed.

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