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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-02 Daily Xml
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CONTROLLED SUBSTANCES (SIMPLE POSSESSION OFFENCES) AMENDMENT BILL

Introduction and First Reading

The Hon. D.G.E. HOOD (23:36): Obtained leave and introduced a bill for an act to amend the Controlled Substances Act 1984. Read a first time.

Second Reading

The Hon. D.G.E. HOOD (23:36): I move:

That this bill be now read a second time.

I assure members that I will be brief, given the lateness of the hour. Obviously, this bill will not pass this place. People have asked why I am introducing a bill at this late stage, so let me just very quickly explain: I made a commitment to some people that I would introduce this bill before the end of the session and I have only just had it returned from parliamentary counsel in recent days, so I was unable to introduce it until now.

However, let me assure members that I will introduce an identical bill early in the next parliament. The purpose of introducing it now was really to allow the second reading speech to appear in Hansard and also for a copy of the bill to be circulated to members so that they can consider it in the lead-up to the election and the immediate period afterwards.

The purpose of this bill is very simple. We have a strange anomaly in law in South Australia whereby if somebody is apprehended with what is deemed a non-trafficable quantity of cannabis in their possession, then they are issued with a fine. I believe that is appropriate and I have no problem with it. However, if someone is caught with a non-trafficable quantity (that is, less than a trafficable quantity) of heroin on their person, in South Australia they receive no penalty whatsoever.

The penalty (if you can call it a penalty) is that they simply have to undergo a counselling session—and that is it. So, we have a ludicrous situation in our law where, if somebody is caught with cannabis, a drug which most would deem nowhere near as potentially harmful as heroin, the penalty is that they receive an expiation notice of approximately $300—a fine if you like—whereas if that same person is caught with a non-trafficable (sometimes deemed personal use) quantity of heroin, then they receive no penalty whatsoever other than the need to turn up to a counselling session. I am advised that, if they do not turn up, they are often not pursued any further and that is the end of the matter.

My intention is to gauge members' attitudes to this proposal, which is somewhat similar to the one introduced by the Hon. Ann Bressington in the recent past. I will re-introduce the bill in the new session, as I said, if members show interest in it over the summer period. Perhaps some members are not aware of this, but some years ago the possession of small quantities of illicit drugs was effectively decriminalised in South Australia. Family First and I find that unacceptable.

This bill ensures that illicit drug possession, even if only in small quantities, remains a punishable offence. The police Drug Diversion initiative provides that when an offender is found in possession of less than a trafficable quantity of hard drugs (such as amphetamines, heroin, LSD, ecstasy or cocaine) then the regimen found in section 40(1) of the Controlled Substances Act provides that no prosecution can proceed against them provided that the offender attend a meeting at a DASSA counselling session and is not terminated from the program. So, it is specifically in the act that no prosecution can proceed against people caught with any of those very serious drugs on their person—amphetamines, heroin, LSD, ecstasy, cocaine, and the like—no penalty whatsoever. That is in the act. In other words, if an offender promises to attend a counselling session, then there is absolutely no penalty. Anecdotally, I have been told that, when offenders do not attend a counselling session, they are rarely, if ever, followed up. To be blunt, this regime sends the message that there is nothing wrong with the possession of personal use quantities of very serious drugs.

I think if you asked any South Australian on the street what the penalty was for being found by police with amphetamine tablets or heroin in their possession, they would say that there must at least be some sort of fine of a few hundred dollars at the very least. Most people are appalled when I tell them that there actually is no penalty, other than the counselling session itself.

While I believe the Police Drug Diversion initiative was and is a good initiative and will remain for offenders found in possession of illicit drugs, this bill adds to it a financial penalty by way of an on-the-spot fine, similar to what applies to those found with personal quantities of cannabis in their possession. This bill provides that offenders found in possession of so-called harder drugs for personal use should at least be given an on-the-spot fine, as is already the case for possession of cannabis for personal use, which receives an on-the-spot fine of between $150 and $300. By doing so, we send the very clear message to our community that drug possession is, indeed, illegal and is not condoned—a message that the current section 40(1) is obscuring and, indeed, I believe, undermining.

The current provisions also requiring such an offender to attend counselling would remain: that would be unchanged by this bill. In fact, the additional revenue stream from the fines could likely be used to improve the rehabilitation services themselves which, as I said, is a good initiative but I believe that it could be improved.

A month or so ago, I was privileged to visit the Elura Drug and Alcohol Rehabilitation Clinic in North Adelaide, which is a rehabilitation service administered by the Drug and Alcohol Services of South Australia. I want to put on record my appreciation for the quite lengthy discussion I had with Dr. Keith Evans—I certainly appreciate his time—and one of the senior counsellors at the service, regarding drug and alcohol rehabilitation services generally in the state and the insights that I was given into the Police Drug Diversion initiative. Throughout the discussion, the program was described as primarily a health intervention rather than any form of penalty or punishment or even legal remedy for the offence.

Elura is a facility where drink drivers are obliged to attend the so-called section 47J assessments if they are caught with a prescribed concentration of alcohol on more than one occasion within a three year period. The Elura DASSA office is also one of many that administer the Police Drug Diversion initiative. Upon being apprehended by police, for an offender found in possession of small quantities of drugs (apart from cannabis), the regime found in Division 6 of the Control Substances Act operates to provide that, should the offender attend a meeting at the DASSA counselling office, such as Elura, and not be terminated from the program, no prosecution can proceed against them. This means that there is clearly an inconsistency, as I have already said.

It is important that this matter is resolved, and I am disappointed to see that this is the law as it currently stands. Many people with whom I have discussed this are not aware of it. Indeed, I have spoken about this with some members of parliament who were not aware of it either. You could argue clearly that there is, in fact, no real penalty for being found in the possession of smaller quantities of very serious drugs, such as heroin, LSD, ecstasy and the like.

This bill also provides that a person found in possession of these drugs must also attend a drug counselling session or face a fine of up to $2,000 should they not attend. As I said, under the current law, there is no penalty for failing to attend the counselling session and the original drug offence is simply prosecuted. To some degree, this makes drug counselling mandatory, as the Hon. Ann Bressington has propagated in this place.

The counselling sessions described in Division 6 of the Control Substances Act are the first port of call for most people who have started experimenting with drugs and are the first time that many of these people have contact with what is referred to as 'the system'. It is important that we catch early offenders and give them all possible assistance before their drug or alcohol abuse becomes much worse.

It is also important, as this bill proposes, that we send a message to illicit drug users that their behaviour is not legal, nor is it condoned by the community. By imposing an on-the-spot fine for such illicit drug possession, this bill sends that message. To be clear, if you are caught with personal use quantities of cannabis in South Australia, you receive an on-the-spot fine of between $150 and $300. If you are caught with so-called personal use quantities of heroin or similar drugs in South Australia, your penalty is nothing other than attending a counselling session. It just does not make sense. It should change, and that is what this bill will do.

Debate adjourned on motion of Hon. I.K. Hunter.

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