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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-16 Daily Xml
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CONTROLLED SUBSTANCES (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 20 July 2010.)

The Hon. S.G. WADE (11:05): I rise to indicate the opposition's support for the Controlled Substances (Miscellaneous) Amendment Bill 2010. The government tells us that this bill would amend the Controlled Substances Act 1984 to implement the 2010 Labor election commitment to create an aggravated offence of trafficking controlled drugs in or around licensed premises and entertainment venues. I acknowledge the Attorney-General's careful use of words in the other place in referring to this as an election commitment rather than the implementation of a mandate, because Labor has no mandate. The Liberal Party at the last election achieved 52 per cent of the two-party preferred vote.

Drugs are a major risk to the health of Australians and a major source of crime in our community. It is vital that we develop and maintain a balanced, outcomes-based approach to combating this social problem. Australia's approach to drugs is basically, on the one hand, to use the firm hand of the law to divert citizens away from consuming illicit drugs and to use an iron grip to try to deal with those who traffic drugs to others. We make a distinction between users and traffickers.

Antonio Mario Costa, the Executive Director of the United Nations Office on Drugs and Crime, has cited Australia as leading the world in terms of its balanced approach to drugs. I think it is vital in maintaining public support for the continuation and improvement of this approach that we recognise progress and acknowledge how much further we have to go.

The member for Morialta in the other place (a very worthy addition to this parliament) provided a useful overview of the Australian context in his contribution on this bill in the other place. The honourable member has worked on drugs policy at the national level and highlighted progress made in lowering overall drug use under the Howard government's tough on drugs approach introduced in the late 1990s.

A 2007 Australian Institute of Health and Welfare report shows that from 1998, the high point, marijuana use amongst Australians has dropped from 17.9 per cent to 9.1 per cent in 2007. In the same time, heroin use dropped from 0.8 per cent to 0.2 per cent, and that figure has been consistent for some years.

There has been a significant reduction in accidental deaths from opiates, from 1,116 deaths in 1999 to 374 in 2005, and the numbers have continued to decline. Of course, every death is one death too many. According to the National Secondary Schools Survey in 1996, 35 per cent of 12 to 17-year olds had tried cannabis in their lifetime, but a decade later, after the tough on drugs campaign, that figure had halved to 18 per cent. Again, in 1996, 11 per cent of our secondary students were smoking cannabis at least weekly, and by 2005 that had dropped to 4 per cent. Overall levels of drug use are diminishing, and that should be welcomed.

Having recognised the progress, the member for Morialta reflected on some aspects where we have gone backwards. Use of methamphetamines, cocaine and ecstasy are all increasing. In 1993 only 2 per cent of the population had tried methamphetamines; in 2007 that figure had almost doubled to 3.9 per cent. Methamphetamines are much stronger and cause significant behavioural changes in the users, and their use in the community is causing widespread concern. Methamphetamines not only destroy lives and often lead individuals into crime, but an affected person may well be socially and morally challenged; revved up with adrenaline they can cause real harm to others and themselves.

These drugs rightly raise community concern, as people in the community never know when they may be the random victim of antisocial behaviour of drug users. Our state and federal police, customs and workers in the health and justice sectors deserve not only our thanks and admiration but also our continued support in their efforts, both in terms of the law and in terms of resources. But a balanced approach is predicated on consistency. This bill should be condemned because it undermines a consistent balanced approach. In particular, the government's proposal to exempt cannabis dealers from these provisions sends a very unfortunate mixed message.

Let me review the current legislation. Currently, trafficking a controlled drug is defined as selling or intending to sell the drug, and intention to sell is presumed in the absence of proof to the contrary if the person had a trafficable quantity of a controlled drug on their person. The maximum penalties for a large commercial quantity are a $500,000 fine and life imprisonment; for a below commercial quantity amount, the maximum is $50,000 and 10 years imprisonment.

The bill proposes to amend section 32 of the Controlled Substances Act to introduce a new offence, that of trafficking in controlled drugs in a prescribed area. The new offence will impose a higher maximum penalty—imprisonment for 15 years or $75,000 (as opposed to 10 years or $50,000)—for the basic offence of drug dealing in licensed premises and at licensed events frequented by young people.

The government's rationale is that this offence will target premises where young people are subject to a combination of alcohol, atmosphere and peer pressure which makes them particularly vulnerable to criminals selling illegal drugs. I think it is worth making the point that people are also vulnerable in these contexts to having their sexual integrity violated, to be the subject of theft and other criminal activity and to become the victims of physical assaults. Given this rationale, the government asserts that the offence does not need to apply to trafficking in all licensed premises.

The government claims that it aims to target the type of venues frequented by young people and, as a result, drug dealers targeting young people. The government specifically refers to pubs, nightclubs, wine bars and the like, and yet I found the list of prescribed premises surprisingly wide. It includes a hotel licence, a restaurant licence, an extended trading authorisation, an entertainment venue licence, a club licence that includes an extended trading authorisation and a special circumstances licence that includes an extended trading authorisation.

The opposition does not object to this wide list but it does seem to be broader than the government was at first suggesting. In that context, I asked at briefings how many premises and what proportion of licences are covered. I am yet to receive this information. Considering that the bill is about vulnerability to sellers, it is hard to understand why the government has excluded cannabis from the aggravated offence. We were told in a briefing that this exclusion was at the suggestion of the Drug and Alcohol Services Council of South Australia and the Department for Families and Communities. The key ground put forward by the government for the aggravated offence not to cover cannabis is that we should be cautious about criminalising young people or minor operators in drug distribution.

Let us be clear that we are not talking about necessarily petty amounts of cannabis. Trafficable quantities of cannabis are defined, for example, in relation to commercial quantities as one kilogram of pure or 2.5 kilograms of mixed. This is not necessarily limited to minor operators. A person subject to the new offence could have up to one kilogram of pure cannabis. I do not claim to be an expert in drug matters but I understand that one kilogram of pure cannabis could provide around 3,000 individual doses and would be valued on the street at about $11,000.

In comparison, in terms of cannabis possession offences, offences cannot be expiated once they exceed 100 grams. So we are talking about a person with months' (if not years') worth of supplies on their person potentially in licensed premises. We think that that fact again raises doubts as to why the government would exclude such persons.

The Hon. Ann Bressington indicated some months ago her concern about that exclusion and she indicated to the opposition her intention to file an amendment which I understand she has done. The opposition is certainly going to be supporting that, and we believe there are strong grounds for doing so.

Trafficking cannabis is illegal and, as I said, in terms of a balanced approach, it is vital to maintain a balanced approach in that we are consistent, and we believe that cannabis should be treated consistently with other drugs, particularly when we are not talking about a user-focused law: we are talking about a dealer-focused law. These are people who are trying to push drugs onto other people.

Secondly, we believe that the distribution of cannabis at licensed venues encourages the mixing of cannabis and alcohol which is known to have very concerning potential health implications including unpredictable reactions and diminished control. We should be discouraging a second drug into a licensed venue, which, if you like, is primarily involved in promoting another drug, although a legal drug.

While the interaction between cannabis and mental health is not fully known, we do know enough to be careful about the use of cannabis. Cannabis has been shown to have a range of long-term effects, and there is a significant range of hypotheses being researched in the long-term impact of cannabis. For these reasons, we believe there are strong grounds for 'aggravated offence' to cover cannabis, and the opposition will be supporting the Hon. Ann Bressington's amendment.

The member for Morialta in the other place observed that one of the reasons for the lowering of the overall drug use in Australia has been that the Tough on Drugs campaign and other educational approaches have reduced the acceptability of illicit drugs in the community. The opposition is concerned that this government is sending out mixed messages which may well undermine the campaign and give the impression that cannabis is acceptable.

As I said, we need to have a consistent and balanced approach on drugs and, particularly, not take our hand off the wheel in terms of cannabis. After all, we are dealing with cannabis which in the modern context often has a significantly higher THC count than it had previously, and the form of cannabis that is now distributed can have significantly greater health and behavioural impacts. If the government's rationale is the vulnerability of potential clients and to deter suppliers, why on earth would we support a legislation that excludes cannabis? As I said, it highlights the woolly thinking of this government; it undermines a consistent balanced approach.

On behalf of the opposition I would express our concern that, while this bill is supported, we do not consider that it is sufficient. Over the last eight years the Rann government has shown itself to be a government which repeatedly uses legislative action as a distraction from its lack of real action. The law will have no impact if the government does not provide the resources to implement it. This law needs the police to be resourced to enforce the law. Again, in the context of a balanced approach, we need to renew health and community programs and diversions.

I will have some questions to ask at the committee stage, but in concluding my second reading contribution I think it would be timely to ask some questions at this point. The Attorney-General advised the other place that SAPOL has said that since 2006-07 there has been a 179 per cent increase in detections or apprehension reports for drug-related offences in licensed premises. To further unpack that statistic, I ask the government: for each of the past four financial years how many detections have there been for drug related offences in licensed premises; how many prosecutions have there been for drug-related offences in licensed premises; and how many convictions for drug-related offences in licensed premises have there been? Secondly, how many licensed premises are there in South Australia by licence type, and what proportion of them will be covered by this bill? I commend the bill to the house.

The Hon. D.G.E. HOOD (11:18): I rise to indicate Family First's position on this proposed legislation. It would be of no surprise to members of this chamber, I am sure, to hear that we intend to support this legislation and, indeed, are favourably disposed to the proposed amendments that have been put forward by the Hon. Ms Bressington as well.

As you are aware, Family First has always been a vocal supporter of any moves made by this government and, indeed, any government, to take a tougher stance on drug dealers in particular. Family First is acutely aware of the destruction wreaked by illicit drugs on our families and community and will continue to do those things in our power to continue highlighting the dangers caused by illicit drugs and supporting measures to protect families, because these substances are, indeed, highly destructive to the family unit.

This bill amends section 32 of the Controlled Substances Act to create a new aggravated offence of trafficking controlled drugs in a prescribed area. A prescribed area is defined as:

(a) prescribed licensed premises or an area being used in connection with prescribed licensed premises; or

(b) premises at which members of the public are gathered for a public entertainment or an area being used in connection with such premises:

I understand that that is really targeting major events, such as the Big Day Out and the like. A higher maximum penalty is imposed in these circumstances, being imprisonment for 15 years—a very substantial penalty—or $75,000, as opposed to imprisonment for 10 years or $50,000 for the basic offence.

It is hoped that this will send a message to people in gangs that continue to deal drugs in licensed premises and entertainment venues frequented by young people. It is clear that not all licensed premises are included in the ambit of the definition. The minister states that the aim of the bill is to target the types of venues frequented by young people and where drug dealing is common; that is, pubs, nightclubs, wine bars and similar venues. So-called 'prescribed licensed premises' is therefore defined including these types of venues and includes the Adelaide casino and other venues as prescribed by regulation. I say 'young people'; but of course these sorts of activities certainly are not limited to young people.

The definition of a public entertainment venue that I referred to earlier, which is intended to include the Big Day Out and other similar events, is also intended to include dance, performance or exhibition events calculated to attract and entertain members of the public. The new offence would include areas being used in connection with these entertainment locations and licensed premises, such as car parking areas and other nearby areas out of sight of security staff, presumably where much of our illicit drug dealing activity usually occurs. This bill makes a blunt statement that the dealing of drugs in and around these venues is more serious than other drug dealing. Some may disagree with this, but I can certainly see the government's intent in pushing this sort of legislation.

There are obviously different types of drug dealer, and people deal drugs for different reasons. Some might supply a few tablets of an illicit drug to their friends, often without compensation and without any commercial motivation. That person, I believe, is in a different category to the professional drug dealer, often working as part of a nefarious organisation, who sells larger quantities of drugs to kids outside these sorts of venues. Neither is any good, of course, but the second case I think is clearly worse. I think it is appropriate that the penalties in this case should be higher, and hence our support for this proposed legislation.

The first major concern, however, that I would raise with respect to this bill relates to the willingness of the judiciary to pass on these higher penalties. Again, this is a government bill and increases the maximum penalty imposed, but it does not impose any minimum penalties for the offence. Maximum penalties are never imposed in the courts, as we know. In fact, a recent answer to a Family First question on notice confirmed that not one single defendant—not one—with cases finalised during the 2007-08 financial year actually received a maximum penalty for any of the following offences: assault; causing death or harm by dangerous use of vehicle or vessel; rape; production or dissemination of child pornography; and trafficking in controlled drugs or manufacture of controlled drugs.

It is all very well to increase the maximum penalty—and I am not criticising that, I think the increases are actually entirely appropriate—but the issue is, nobody will ever get these maximum penalties according to the history that we have so well established now. So the continual ramping up of maximum penalties when no minimum penalties are imposed can have an appearance of being tough on the one hand but with little practical consequence on the other.

A second concern, which I have raised previously in this place, concerns section 40(1) of the act. The wording of this section, which is not amended by this bill, retains an anomaly that possession of small quantities of illicit drugs, whether around licensed premises or not, has in some cases been essentially decriminalised in South Australia. The police drug diversion initiative provides that, when an offender is found in possession of less than a trafficable quantity of so-called hard drugs—a term that I do not like—such as amphetamines, heroin, LSD, ecstasy or cocaine, the regimen under 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 office (and is not terminated from the program).

That means that anyone found with what is deemed to be a so-called personal use quantity, a non-trafficable quantity, of any drug other than cannabis, which includes heroin and LSD—the so-called harder drugs—receives effectively no penalty. They simply have to attend a counselling session, and if they attend that counselling session then there is no penalty. In other words, if an offender promises to attend a counselling session, there is absolutely no penalty. Anecdotally I have been told that, when offenders do not attend the counselling session, there are rarely any consequences or follow-up, and I have had that confirmed to me by members of DASSA. To be blunt, this regimen sends the dangerous message that possession of drugs for personal use, particularly the so-called harder drugs, has in some circumstances been decriminalised and has no penalty.

The irony, of course, is that, if someone is detected with a personal use quantity of cannabis in their possession, what many people regard as the lighter drug, there is a penalty associated with the possession of cannabis but there is no penalty associated with the possession of heroin, which I think to most people seems odd, to say the least.

Indeed, if you asked any South Australian on the street (and I have asked many of them this exact question) what is the penalty for being found by the police with a couple of amphetamine tablets in their possession, for example, they would say that there should at least be some sort of fine of several hundred dollars. In fact, I have had some people say to me that the penalty would be imprisonment. Most people are absolutely appalled and surprised when I tell them that there is no penalty, other than attending a counselling session, which in most cases is not followed up on, anyway.

I have circulated an amendment to ensure that we add a financial penalty in the form of an on-the-spot fine for offenders who are found in possession of illicit drugs. This would align it with the penalties for being found in the possession of so-called personal use quantities of cannabis. In other words, those people found in possession of these drugs will still have to attend the counselling session but, if my amendment passes, they will also be given a new on-the-spot fine to reinforce the message that illicit drug possession remains illegal in South Australia, just as it is with cannabis currently.

The amendment would also fix an inconsistency in dealing with simple cannabis possession offences and other drug offences. Cannabis offences are dealt with in section 45A of the act by way of a $150 or $300 fine if a person is found with a personal use quantity of cannabis in their possession, pursuant to schedule 5 of the Controlled Substances (General) Regulations 2000. Compare this with possession of small quantities of so-called harder drugs for which there is no penalty at all.

In my view, it is inappropriate that possession of cannabis should carry a penalty whilst so-called harder drugs do not. I am sure that most people would be in agreement with that view. My amendment will fix that once and for all. In short, the amendment I am proposing will ensure that there is no longer an argument that possession of small quantities of so-called harder drugs is legal or has been decriminalised in South Australia in these circumstances. Further, the fines paid by drug offenders would help offset the cost of policing these activities.

In any event, I will discuss my amendment further during the committee stage, but I wanted to place on the record Family First's position regarding this bill and this amendment. As I have said, we support the bill, and I am hopeful that my amendment gets through; I think it will make a substantial difference.

Debate adjourned on motion of Hon. B.V. Finnigan.

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