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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-23 Daily Xml
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CONTROLLED SUBSTANCES (SIMPLE CANNABIS OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 September 2010.)

The Hon. J.M.A. LENSINK (18:14): Given the hour, and given that I have made contributions on cannabis consumption in the past, I will be brief.

The Hon. T.J. Stephens: Did you say you made contributions when you were on cannabis?

The Hon. J.M.A. LENSINK: No, I did not say that. Mr President, he is delaying—

Members interjecting:

The PRESIDENT: Order! I am sure that we can all see through the smoke.

The Hon. J.M.A. LENSINK: I rise to indicate that we will be supporting this bill. I think that we have much higher potency levels of cannabis than we have had in the past due to hydroponics and who knows—interbreeding of various species. I remember being on jury duty and there was a grower who talked at length about various types of cannabis, which was an education.

I note from the honourable member's contribution that, obviously, she is very concerned about dealers and the fact that the current laws enable a dealer to split up their stock, if you like, into sizes which enable the sale of this substance to occur quite easily (in smaller sizes), and therefore the gram size is to be reduced from 100 to 25 grams, and I think that is to be supported.

There is growing evidence about the health impacts of cannabis (it being the most prevalent illicit drug consumed by Australians, and particularly South Australians), particularly with respect to mental health. As recently as last month, a medical study concluded that people who consume cannabis are much more likely to suffer from schizophrenia, which demonstrates that we ought to exercise extreme caution in tolerating cannabis use. With those brief remarks, I indicate support for this bill.

The Hon. D.G.E. HOOD (18:15): I have cut down my speech, members will be pleased to hear, but I do have a few things that I would like to place on the record on behalf of the party. Obviously, I rise to indicate Family First's strong support for this very sensible bill, introduced by the Hon. Ms Bressington, which makes it perfectly plain that cannabis is not a harmless drug and that possession of cannabis should be subject to much more serious penalties than the token penalties we have seen for some time.

The honourable member is concerned with the wording found in schedule 5 of the Controlled Substances (General) Regulations 2000. The regulation sets out the penalties for cannabis possession. I will not read out the penalties from the statute book, as I had planned, but suffice to say that the honourable member's bill will reduce the amount from 100 grams being the threshold to 25 grams, which I think is eminently sensible.

The bill focuses on a key weakness of schedule 5, namely, the allowance to expiate or receive an on the spot fine for possession of up to 100 grams of cannabis. The expiation figure is currently $300. The Hon. Ms Bressington makes the sound point that a fine of $300 is a totally inadequate penalty for possession of as much as 100 grams of cannabis. Potentially, 100 grams is 50 two-gram joints, with a retail value of something like $1,250. Again, it seems to me that a $300 fine for those sorts of quantities is just unacceptable.

This bill proposes that the expiable amount be reduced from 100 to 25 grams, as I said, and Family First finds this proposal to be very sensible. Other states have far lower thresholds than 100 grams as well, it needs to be pointed out. Indeed, Western Australia has a threshold of 35 grams and recently reduced that to just 10 grams. New South Wales allows only 15 grams, and the ACT also has 25 grams as their limit.

We are alone, as I understand it, in Australia as having the expiating amount of 100 grams of cannabis. No other state permits even half that amount to be expiated, as I understand it. Our laws are therefore most lenient in this regard, the most lenient in the country, and far too lenient in my view. I will not go into some of the other detail I prepared. Suffice to say, this is a very good bill; we support it wholeheartedly and, I might say, it is long over due.

The Hon. R.P. WORTLEY (18:18): I stand to give the government's response to the bill. The Hon. Ann Bressington introduced the Controlled Substances (Simple Cannabis Offences) Amendment Bill into the Legislative Council on 29 September 2010. The bill aims to achieve four key outcomes, namely:

to increase expiation fees for possession of cannabis (less than 25 grams) and cannabis resin (less than five grams) from $150 to $300;

to include a requirement for the police officer to provide information in a form approved by the minister to the alleged offender. The information would cover the health risks and criminal penalties relating to cannabis consumption;

to remove the possession of cannabis (25 grams or more but less than 100 grams) and cannabis resin (5 grams or more but less than 20 grams) from the cannabis expiation notice scheme (CEN), and thereby make these non-expiable criminal offences; and

to move cut-offs for the above simple cannabis possession offences from the Controlled Substances (General) Regulations 2000 to the Controlled Substances Act.

The government shares the honourable member's concerns about the harms associated with cannabis use in the community. That is why the current approach to cannabis use in South Australia is one of prohibition with civil penalties. Under this approach, the production, sale, possession or use of cannabis is and remains illegal in South Australia, but court action and a potential criminal conviction can be avoided for minor offences (possession, use and cultivation of small amounts of cannabis) by payment of an expiation fine.

The CEN scheme came into effect in South Australia on 30 April 1987. Under this scheme, adults coming to the attention of police for simple cannabis offences could be issued with an expiation notice. The offenders are able to avoid prosecution by paying the specified fee or fees within 60 days of the issue of the notice. Failure to pay the specified fee within 60 days could lead to prosecution in court and the possibility of a conviction being recorded.

Underlying the CEN scheme is the rationale that a clear distinction should be made between private users of cannabis and those who are involved in dealing, producing or trafficking in cannabis. This distinction was emphasised at the time of the introduction of the CEN scheme by the simultaneous introduction of more severe penalties for offences relating to the manufacture, production, sale or supply of all drugs of dependence and prohibited substances including offences relating to larger quantities of cannabis.

It is important to highlight the fact that there has been a declining prevalence of use of cannabis in the South Australian community over recent years. In 1998, 17.6 per cent of the population had used cannabis in the previous 12 months, and this figure declined to 10.2 per cent in the latest available figures in 2007. This is in line with the encouraging downward trend in overall illicit drug use recorded in South Australia in recent years, down from 23.9 per cent to 14.7 per cent in the same period.

The government opposes the bill for the following reasons. The bill raises issues relating to undesirable impacts that require careful consideration. An increase in expiation fees for low-level possession will predominantly target users and not dealers. An increase in expiation fees is likely to reduce compliance with the payment of notices and thereby increase the demand for court resources for enforcement purposes. This would result in additional cases and burden on the criminal justice system.

Furthermore, in Australia, many recognise that the public health consequences of the application of the criminal law against cannabis users may be at least as significant as those of cannabis use itself. We do not want to run the risk of increasing the number of cannabis users who are prosecuted and convicted and thereby experience problems with regard to social stigma, loss of job opportunities and other harms that accrue to such users.

The law and its enforcement should not cause more harm than they set out to prevent or control. That is why the government does not support the proposed increase in expiation fees. Likewise, the government supports the intention behind the provision in the bill that would remove possession of cannabis (25 grams or more but less than 100 grams) and cannabis resin (five grams or more but less than 20 grams) from the cannabis expiation notice scheme and make it a non-expiable criminal offence, but it is yet to be provided with evidence that this is a significant problem requiring a legislative remedy in the form proposed.

This particular amendment would affect only a small number of offenders and would entail a disproportionate allocation of resources which could be better directed towards apprehending those in possession of substantially greater quantities of cannabis. We oppose the amendment that would require South Australia Police to provide information to an alleged offender regarding the health risks and criminal penalties in conjunction with the issuing of an expiation notice. In the past, police officers handed out such information at the time of expiation. South Australia Police later reviewed this policy and determined that the provision of these materials would cease because of the additional cost in producing this information and the administrative burden this imposed on police officers when apprehending offenders.

With respect to the final amendment, which aims to move cut-offs for the above simple cannabis possession offences from the Controlled Substances (General) Regulations 2000 into the Controlled Substances Act, the government cannot support such a move. The current listing of all expiation cut-offs and fees in the regulations provides a more flexible position and less cumbersome arrangements for future changes to these parameters if and when parliament wishes to implement such changes.

It is also much more sensible to retain all the expiation cut-offs and fees in the regulations than have some parameters of the cannabis expiation notice system listed in the regulations and some in the act. The retention of all the existing parameters in the regulations will also provide continuing support for the current arrangement for future amendments to be made through the Controlled Substances Advisory Council recommendation process.

In closing, members are aware that the South Australian legislation regarding cannabis-related cultivation and supply has been tightened over recent years to target cannabis dealers, reduce the availability of cannabis in the community and thereby reinforce the message that cannabis is not a harmless drug. I note that there has been a declining prevalence of the use of cannabis in the South Australian community over recent years and reiterate the position that the production, sale, possession or use of cannabis is and remains illegal in South Australia. For the reasons I have expressed, it is not the position of the government to support this bill.

The Hon. A. Bressington: Weak, weak, weak.

The PRESIDENT: Order!

The Hon. A. BRESSINGTON (18:25): Very quickly, I would like to thank all members for their contributions, brief as they were. I am also grateful for the support that this bill has received in this place. I would make just one point: this bill was merely to reduce the amount a person can carry around for personal use, not be pinched for it and receive a minimal fine, carry around on their person an amount that has a street value of $1,250, claiming that it is for personal use, which can be broken up into bags (as I demonstrated in my second reading speech) and onsold for a great profit. They face a $300 expiation fee for that. It is ridiculous. It is not in line with the other states, which have realised that personal use is very different to carrying around dealable amounts, and have reduced—

The Hon. S.G. Wade interjecting:

The Hon. A. BRESSINGTON: Well then get more judges and fund the courts better. The problem is that this government is all speak and no do. It talks tough on drugs and it talks tough on crime but, at the end of the day, when a sensible bill is put before it to bring us into line with the rest of the country—

An honourable member interjecting:

The Hon. A. BRESSINGTON: We are the only state in Australia that allows 100 grams on a person for personal use to be expiated. We also have to understand the impact that has on other states, as well. So I leave it with members. I thank them for their contributions and I thank members for supporting the bill; I damn the government for not.

Bill read a second time.


[Sitting extended beyond 18:30 on motion of Hon. G.E. Gago]


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