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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-10-16 Daily Xml
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CONTROLLED SUBSTANCES (OFFENCES) AMENDMENT BILL

Second reading.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (18:32): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Controlled Substances (Offences) Amendment Bill 2013 (the Bill) amends the Controlled Substances Act 1984 (SA) (the CS Act) to tackle the blight of synthetic drugs in our community.

The provisions contained within the Bill will provide South Australia Police (SAPol) with a new weapon to combat the trade in synthetic drugs.

Under the current provisions of the CS Act, the process of adding newly discovered harmful substances to the list of controlled drugs can be a lengthy one. There are also no provisions to prevent persons marketing potentially unsafe products as legal alternatives to illicit drugs.

This reform tackles the issue of synthetic drugs from a different angle.

Interim Controlled Drugs

The Bill has been drafted to amend the CS Act so that the Attorney-General has the power to declare a substance to be an 'interim controlled drug'. Under the proposed amendment, the Attorney-General may, if he or she is of the opinion that a substance may be of exceptional danger to human, declare the substance to be an 'interim controlled drug' by notice in the Gazette.

The notice operates for a period of not more than 12 months and may be varied or revoked at any time by the Attorney-General. The notice may refer to a substance by its trade name or in any other manner.

Once a substance is declared to be an 'interim controlled drug' that substance is treated in the same way as a 'controlled drug' (with one exception set out below), meaning the existing offence provisions concerning controlled substances contained in Part 5 of the CS Act will apply to that substance.

However, given that:

these drugs are often sold to people on the basis that they are legal; and

the purpose of these reforms is to target those persons who profit from creating and selling these dangerous substances with no concern to people's safety and well being;

the possession and consumption offences contained in section 33L of the CS Act will not apply to the interim controlled drugs.

This new mechanism attacks creative chemists who use the internet to either import, or obtain instructions for creating, new substances that are not yet identified as 'controlled drugs'. This section ensures the legislation is able to keep up with the speed at which these new substances are produced.

New offences

The Bill also creates a number of new offences to target the way these substances are manufactured, marketed and sold. The offences apply regardless of whether the substance has been proven to be dangerous.

These new offences target the practice of marketing products as legal alternatives to illegal substances, and/or marketing products as having the same or similar effect to illegal substances, with absolutely no regard as to whether the products are safe for human consumption.

The first new offence is the intentional manufacturing of a controlled drug alternative.

Under the proposed new section 33LD, a person who manufactures a substance intending that the substance:

will have pharmacological effects similar to those of a controlled drug; or

will be a legal alternative to a controlled drug;

is guilty of an offence.

The maximum penalty is a $15,000 fine or imprisonment for 4 years, or both.

The term 'manufacture' in relation to controlled drugs means undertaking any process by which the drug is extracted, produced or refined or taking part in the process of the manufacture of the substance.

For the purposes of the CS Act, a person takes part in the process of the manufacture of a controlled drug if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.

For the purposes of the CS Act, a step in the process of manufacture of a controlled drug includes, without limitation, any of the following when done for the purpose of manufacture of the drug:

acquiring equipment, substances or materials;

storing equipment, substances or materials;

carrying, transporting, loading or unloading equipment, substances or materials;

guarding or concealing equipment, substances or materials;

providing or arranging finance (including finance for the acquisition of equipment, substances or materials);

providing or allowing the use of premises or jointly occupying premises.

These provisions are replicated with respect to the new offence of intentionally manufacturing a controlled drug alternative substance.

The Bill contains another new offence of promoting a controlled drug alternative.

Proposed section 33LE provides that any person who promotes a substance:

as having pharmacological effects similar to those of a controlled drug; or

as being a legal alternative to a controlled drug; or

in a way that is intended, or likely, to cause a person to believe that the substance:

is a controlled drug; or

has pharmacological effects similar to those of a controlled drug; or

is a legal alternative to a controlled drug,

is guilty of an offence.

The maximum penalty is a $10,000 fine or imprisonment for 2 years, or both.

Unlike other offences, there is no need under section 33LE to prove that the product is harmful.

For the purposes of this new offence, a person 'promotes' a substance if the person takes any action that is designed to publicise or promote the substance, whether visual or auditory means are employed and whether the substance is directly depicted or referred to or symbolism of some kind is employed, and includes taking any other action of a kind prescribed by regulation.

This definition of 'promotes' includes advertising, issuing pamphlets, information on a website and any verbal instructions given at the time of sale or supply.

This provision is designed to control the conduct of advertising or packaging a substance in a way to promote it as being a legal alternative to an illegal drug. This conduct is captured whether the person doing the advertising or promoting is selling the drug themselves, or whether they are doing it by reference to a product available elsewhere.

Proposed section 33LF creates the new offence of manufacturing, packaging, selling or supplying a substance promoted as a controlled drug alternative. This offence requires persistent conduct.

Under section 33LF, if a police officer reasonably suspects that a person intends to manufacture, package, sell or supply a substance that is being, or is to be, promoted in a manner prohibited under section 33LE, the officer may give the person a notice (containing any particulars prescribed by the regulations) warning the person that if he or she manufactures, packages, sells or supplies the substance he or she will be guilty of an offence.

The notice may be revoked at any time by further notice given to the person by a police officer, and must be revoked if a police officer is satisfied that the substance to which the notices relates is not being, and is not to be, promoted in a manner prohibited under section 33LE.

A person who has been given such a notice and who subsequently manufactures, sells or supplies the substance specified in the notice is guilty of an offence. The maximum penalty is a $15,000 fine or imprisonment for 4 years, or both.

With respect to each of these new offences, a court can be satisfied that a person has committed an offence in relation to a substance despite any usage instruction concerning the substance (given in any manner, way, medium or form) that indicates that it is not a controlled drug or that it is not a legal alternative to a controlled drug or that it is not intended for human consumption.

This provision is designed to ensure that retailers cannot avoid these provisions simply by packaging and labelling product as a 'bath salt' or as not for human consumption, whilst verbally or via the internet promoting the product for human consumption.

The Bill also creates a new type of court order where conduct of a person can result in their shop, retail outlet or business being ordered closed by a court. This should act as a deterrent to persons who continue to sell and market products contrary to these new provisions, as well as those who sell and market substances declared under the CS Act as controlled drugs.

Under proposed section 33T, on the application by a police officer, if a court is satisfied that:

a person has been convicted of 1 or more offences against Part 5 of the CS Act committed in the course of carrying on a business; and

the making of the order is reasonably necessary to ensure that the person does not engage in further conduct constituting an offence against Part 5;

the court may make an order in relation to the person prohibiting them from:

engaging in specified conduct; or

carrying on a specified business or a specified kind of business,

at specified premises or in specified circumstances.

A court making an order under section 33T may also make any ancillary orders that the court considers appropriate, and may, by subsequent order, vary or revoke an order made by the court under section 33T.

The aim of this proposal is to discourage genuine retailers from taking the risk of selling these products and to get these products off the shelves.

By including these provisions in the CS Act, the usual seizure provisions of the CS Act will apply. SAPol officers have the power to search and seize anything that constitutes evidence of a breach of the provisions, which could include any substance or promotional material.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Controlled Substances Act 1984

4—Amendment of section 4—Interpretation

This clause amends the definition of controlled drug to include interim controlled drugs and inserts a definition of interim controlled drug.

5—Insertion of section 12A

This clause inserts a new section as follows:

12A—Interim controlled drugs

This provision allows the Attorney-General to declare interim controlled drugs.

6—Amendment of section 33L—Possession or consumption of controlled drug etc

This clause excludes interim controlled drugs from the possession offence.

7—Insertion of Part 5 Division 4A

This clause inserts a new Division as follows:

Division 4A—Offences relating to controlled drug alternatives

33LC—Interpretation

This section includes interpretative provisions for the purposes of the Division.

33LD—Intentional manufacture of controlled drug alternative

This section creates a new offence of intentional manufacture of a substance to have pharmacological effects similar to those of a controlled drug or to be a legal alternative to a controlled drug. The maximum penalty is $15,000 or imprisonment for 4 years, or both.

33LE—Promoting controlled drug alternative

This section creates a new offence of promoting a substance—

(a) as having pharmacological effects similar to those of a controlled drug; or

(b) as being a legal alternative to a controlled drug; or

(c) in a way that is intended, or likely, to cause a person to believe that the substance—

(i) is a controlled drug; or

(ii) has pharmacological effects similar to those of a controlled drug; or

(iii) is a legal alternative to a controlled drug.

The maximum penalty for the offence is $10,000 or imprisonment for 2 years, or both.

33LF—Manufacturing, packaging, selling or supplying substance promoted as controlled drug alternative

A police officer who reasonably suspects that a person intends to manufacture, package, sell or supply a substance that is being, or is to be, promoted in a manner prohibited under proposed section 33LE, may give the person a notice warning the person that if he or she manufactures, packages, sells or supplies the substance he or she will be guilty of an offence. Breach of the notice is punishable by a maximum penalty of $15,000 or imprisonment for 4 years, or both.

8—Amendment of section 33S—No accessorial liability for certain offences

This clause amends section 33S (consequentially to the extended definition of manufacture in proposed section 33LC).

9—Insertion of section 33T

This clause inserts a new section as follows:

33T—Power of court to prohibit certain activities

Under this section a court may make an order prohibiting a person from engaging in specified conduct or carrying on a specified business or a specified kind of business if the person has been convicted of 1 or more offences against Part 5 committed in the course of carrying on a business and the making of the order is reasonably necessary to ensure that the person does not engage in further such offending.

10—Amendment of section 63—Regulations

This clause amends the regulation making power to ensure that the power to make exemption regulations would extend to substances covered by the proposed provisions.

Debate adjourned on motion of Hon. R.I. Lucas.

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