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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-09-11 Daily Xml
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LEGISLATION

In reply to the Hon. A. BRESSINGTON (8 May 2008).

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business): The Attorney-General has provided this information:

Firstly, the ban on the sale of drug paraphernalia in the Summary Offences Act 1953 came into operation on Sunday 8 June 2008.

Secondly, it would appear that the Honourable Member has made a mistake about this matter. There is no Fair Trade Act, either on this state’s books or at commonwealth level. I suspect that she is referring to section 92 of the Commonwealth Constitution, which states that trade and commerce among the states shall be absolutely free.

But that is not the actual reason for her concern about this legislation. As with the ban on the sale of fruit-flavoured cigarettes, the government was aware that the ban on the sale of drug paraphernalia could infringe mutual recognition principles. These principles, which have force under both the Mutual Recognition (South Australia) Act 1993 and the Trans-Tasman Recognition (South Australia) Act 1999, provide that goods produced in or imported into the first state that may lawfully be sold in that state, may be sold in the second state without the necessity for compliance with certain further requirements such as meeting quality standards or inspection requirements. Any other requirement relating to sale that would prevent or restrict, or would have the effect of preventing or restricting, the sale of the goods in the second state need not be complied with – including an outright ban imposed by parliament. So, without more, any charges for selling the prohibited paraphernalia could be defended with the help of a competent lawyer.

That is why the government requested that the Governor, with the advice and consent of Executive Council, make regulations under those acts to exempt this ban temporarily from the mutual recognition principles. This will allow time for the matter to be referred to the appropriate ministerial council to see if a permanent exemption is supported by the other states and territories. The council in question would be the Ministerial Council on Drugs Strategy, and South Australia’s representative is the Minister for Mental Health and Substance Abuse.

I would hope that this parliament will support the minister in seeking a permanent ban so that its intentions are not frustrated.

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