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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-02 Daily Xml
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SUMMARY OFFENCES (DRUG PARAPHERNALIA) AMENDMENT BILL

Introduction and First Reading

The Hon. A. BRESSINGTON (15:59): Obtained leave and introduced a bill for an act to amend the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. A. BRESSINGTON (16:00): I move:

That this bill be now read a second time.

This is basically a repair bill to the drug paraphernalia bill that was introduced by the government on my behalf back in 2008, I think it was. As I have previously detailed in this place, despite some initial reports of noncompliance, the enactment of the Summary Offences (Drug Paraphernalia) Amendment Act 2008 passed by this parliament with the clear intention of prohibiting the sale of drug-using paraphernalia—including prohibited pipes, defined as a device that is apparently intended for use or designed for use in smoking cannabis, cannabis resin or methamphetamine crystals; water pipes (known more commonly as bongs); and cocaine kits—resulted in the closure of several stores that predominantly sold such items and took pipes and bongs off the shelves of other retailers.

However, almost four years later, several items that fall within these categories remain legally on sale less than 50 metres from this parliament. This is due to a Magistrates Court ruling recording the judgement Police v Koutsoumidis 2009, in which 10 items were found to not meet the statutory definitions of prohibited items in section 9B of the Summary Offences Act. Mr Koutsoumidis, the owner of Off Ya Tree on Hindley Street, seemingly orchestrated being raided by the police to challenge the scope of section 9B. When I say 'seemingly orchestrated being raided', it is my understanding that Mr Koutsoumidis literally nominated a time for officers from the Drug Investigation Branch to drop by.

While he was ultimately found guilty for selling four items contrary to the law, the magistrate was not satisfied beyond reasonable doubt that eight pipes and two bongs masquerading as water pourers fell within the scope of the law and parliament's intent. The eight pipes include varieties of smokeless pipes—one of which is known as a 'cannabis bud bomb'—a glass open cone piece pipe, and other more obscure pipes, all of which I contend are intended for consuming cannabis.

However, the magistrate held that the evidentiary threshold was not met due to the pertinent evidence led by the police being largely struck out; namely, because a detective from the Drug Investigation Branch was held not to be an expert witness, and material taken from the internet relating to the two glass pipes' usage was not considered probative. Additionally, the detective conceded that he had not encountered the five metal pipes with wooden bowls previously, nor a small metal collapsible pipe. As a result, the magistrate concluded:

Having regard to [the detective's] evidence as a whole I cannot be satisfied, beyond reasonable doubt, that each pipe was a device that was designed for, or apparently intended for, a particular use, namely, smoking cannabis. Because of the presence of the large wooden bowls, which [the detective] had not encountered before, I cannot exclude the reasonable possibility that those pipes may have been designed for, or apparently intended for, a particular use which did not involve the smoking of cannabis. In those circumstances I cannot be satisfied beyond reasonable doubt that those pipes were prohibited pipes within the meaning of the statutory definition.

The former police minister the Hon. Michael Wright, in a letter to me, summarised what went wrong:

The South Australia Police advises that based on the oral testimony of a police officer, the presiding Magistrate was not satisfied beyond reasonable doubt that the remaining ten items were in breach of the legislation.

Concerning the bongs masquerading as water pourers, the detective conceded that the J-shaped water pourer, which interested members can find a photo of on the Off Ya Tree website, could not be used as a bong (with which I respectfully disagree) and that the other, which looked like a typical glass water pipe but with the cone piece (which a user packs with cannabis) inverted and stuck to the stem, could not be used without significant modification. The magistrate had recounted this well:

According to the defence case that object is also a water pourer. The words on the card attached to it describe it as a POURite Liquid Pourer. In the course of his examination of that item [the detective] removed the red anodised aluminium cylinder. He tried in vain to unscrew the end of that cylinder. He took it to the Forensic Science Centre where it was immersed in a solvent but he was still unable to unscrew it. The cylinder was then x-rayed and a cross-section at the end was cut away using a hacksaw. From his examination Detective Hunt formed a view that the end of the cylinder was formerly capable of being unscrewed but had been affixed in such a way that that was no longer possible.

He said that, if the end of the cylinder could have been unscrewed, the large pear shaped glass object would be capable of being used as a water pipe. However, under cross-examination, he agreed that affixing the end to the cylinder effectively prevented the object from being used as a water pipe. He also agreed that, if anyone wanted to use it as a water pipe, they would have to throwaway all the metal parts, buy replacement parts and then assemble it. On his evidence what was needed was more than an adjustment, modification or addition. In order to use it as a water pipe a part of the object needed to be replaced.

Having regard to the state of the evidence I am not satisfied beyond reasonable doubt that the large pear shaped glass object was a 'water pipe' within the meaning of the statutory definition.

However, as I have previously remarked in this place, I suspect that the current water pourers on sale would not be so difficult to modify, as the following exchange on Off Ya Tree's online forum demonstrates:

Customer: I just bought a water pourer from Off Ya Tree and it seems to be missing a piece of something, if it's not I'm wondering how to use it. Is it meant to come with a cone piece?

Employee: Hi there, the POURites come with a pourer and nipple attached. To clean the nipple unscrew it off and turn it around to sit in the spout. This should sort you out.

In other words, unscrew it, invert it and you have yourself a cone piece and, as a result, a bong. Another type of water pourer currently available, which I have been provided by a concerned parent, comes with two ends: one for use as a water pourer and the other to be used as a cone piece in a bong. The bong I was provided I believe is currently still with the Attorney-General, having also spent time with a journalist from the Sunday Mail.

The effect of the magistrate's ruling is that the eight pipes and two water pourers are now not considered to be 'prohibited pipes' or 'water pipes' and remain on sale at numerous locations. Several similar items such as the various models of water pourers also remain on sale.

Given that it is my belief that it was largely a deficient prosecution that led to the Koutsoumidis judgement—and I have some agreement from the police on this—I have waited now some 2½ years for the matter to be re-prosecuted. However, despite assurances from the police, no prosecution has resulted. So, instead, I propose today to enable the Attorney-General via regulation to include additional items in the list of prohibited items in section 9B of the Summary Offences Act. It is my expectation that the Attorney-General will use this power to effectively identify, and as such prohibit, the remaining drug paraphernalia lawfully on sale.

Whilst I could spend time detailing the Attorney-General's initial reluctance to accept that the Koutsoumidis judgement has led to an interpretation of section 9B contrary to this parliament's intention, and the need for legislative amendments, I believe that this would ignore the Attorney's more recent statements made in the media, namely:

I am concerned to ensure that the legislation works as effectively as possible to prevent the sale of drug implements.

It was with this concern that the Attorney-General himself identified the regulation power proposed by this bill as a way to overcome the difficulties resulting from the Koutsoumidis judgement. Whilst the negotiations that led to this proposal may have broken down, I am nonetheless hopeful that the Attorney-General remains concerned about the lawful sale of drug-using paraphernalia and, as such, I am hopeful that the government will support this bill.

I just want to reiterate how ridiculous this is. One of the five items that I showed the Attorney-General is a metal pipe. The cone piece that screws into the pipe to pack and smoke cannabis is legal to sell, but it is illegal to sell the cone piece separately. So there is a huge misunderstanding of the intention of this legislation. Let's face it, these buggers who sell these things in shops know exactly how to get around the law. Mr Koutsoumidis seems to be quite innovative in his attempts to test this law to its utmost.

This bill will allow the Attorney-General to update the regulations as these people become more innovative. So, illegal paraphernalia will be constantly updated in the regulations, and that will actually allow the police to do their job. From speaking to Assistant Commissioner Tony Harrison, I know that this is quite frustrating for the police.

I remind members of this council that it was at the request of police when I first came into this place that I started negotiating this piece of legislation, and the police were quite pleased when it went through. Since then, we have seen the owners of these shops test this legislation to its full capacity. It is now time for us to step in and literally cut them off at the knees as they go along.

So, I will leave the bill with the parliament, but I will not leave it for long. I hope to bring this to a vote by the next sitting week of parliament because, as I said, this is basically a repair bill, and I would like the results of this to be expedited.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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