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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-09-27 Daily Xml
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Bills

Controlled Substances (Pure Amounts) Amendment Bill

Standing Orders Suspension

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:03): I move:

That standing orders be so far suspended as to enable the introduction forthwith of the Controlled Substances (Pure Amounts) Amendment Bill.

Motion carried.

The PRESIDENT: I note the absolute majority.

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:03): Obtained leave and introduced a bill for an act to amend the Controlled Substances Act 1984. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:04): I move:

That this bill be now read a second time.

The bill I introduce today is the Controlled Substances (Pure Amounts) Amendment Bill. The bill makes urgent amendments to the Controlled Substances Act 1984 that have become necessary following the decision of the Court of Appeal in the matter of Kingston v The Queen and Maxwell v The Queen, referred to in my second reading explanation as the Kingston decision.

The applicant in Kingston made a successful application for a retrial on charges of trafficking a large commercial quantity—200 kilograms in this case—of a controlled substance commonly known as fantasy. The ground of appeal that is relevant for the purpose of this bill related to the lack of a 'pure weight' being prescribed for this substance in the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.

Schedule 1 of the regulations contains a table of controlled drugs for the purposes of the Controlled Substances Act, and schedule 2 has a similar table for controlled precursors. The table sets out the chemical name of the controlled drug, and lists the relevant weights for a commercial quantity, a large commercial quantity and a trafficable quantity for the drug. The categories are in some instances further divided between a 'pure' weight and a 'mixed' weight.

The pure weights are generally less than the mixed weights, effectively meaning that a smaller amount of pure substance than a mixed substance is required to put an offender into the higher category of offence. So for example, for methamphetamine, a large commercial quantity offence requires half a kilogram of the drug contained in a mixture, but only 0.1 of pure methamphetamine is needed to fall into the same offence category.

Overall, about 5 per cent of the controlled drugs listed in the regulations have a pure weight listed, with the vast majority only having a mixed weight. This is partially because it is difficult to determine what an appropriate pure weight is for many substances, and also in many cases the testing for the purity of substances is not routinely available.

Prior to the decision in Kingston, matters were generally prosecuted on the basis of the relevant controlled drug or precursor being contained in a mixture, and therefore the mixed weights listed in the regulations were used to determine the appropriate category of offence. In the past, the view was taken that a substance that was anything less than 100 per cent pure was contained in a mixture, even if the substance had not been deliberately mixed or 'cut' with another substance.

The presence of manufacturing impurities or other results of natural chemical degradation meant that the substance could not be considered pure, scientifically speaking. Charges for drug offences were most often laid and prosecuted on the basis that the substance was contained in a mixture, and therefore the mixed weights prescribed in the regulations were used.

However, in the Kingston decision, the fantasy drug in question was shown to be 98 to 99 per cent pure, with the 2 per cent made up of impurities or chemical degradation, and the court found that because this substance had not been mixed or cut with another substance it should have been considered a pure substance. It followed that because there is no pure weight listed for this in the regulations there is no relevant offence of trafficking a large commercial, or commercial, quantity of the pure substance and only the basic trafficking charge was available.

To put that into perspective, the maximum penalty for trafficking a large commercial quantity of a controlled drug is life imprisonment. The maximum penalty for the basic trafficking offence is 15 years imprisonment for a serious drug offender or for an aggravated offence and 10 years imprisonment in other cases.

The decision in Kingston quite clearly has very significant implications for the prosecution of some of the most serious offences in the Controlled Substances Act. Criminals who traffic in huge quantities of controlled drugs and precursors are some of the most serious offenders, who are often involved in organised crime groups who make substantial amounts of money off the back of preying on the community by trafficking and dealing in these substances.

It is clear to me that it was never intended that the lack of a prescribed pure weight for a given substance should be taken as an intention not to criminalise trafficking or manufacturing of large quantities of pure controlled drugs or controlled precursors. Rather, this is an instance of an unintended consequence of not prescribing a pure weight in the regulations along with the Controlled Substances Act not containing a definition of what is meant by 'pure' or 'mixture'.

The older type of controlled drugs, such as heroin, cocaine and methamphetamine, can be more easily tested for purity and have both pure and mixed weights prescribed in the regulations and are therefore not an issue. However, newer synthetic types of controlled drugs, such as the one mentioned before known as fantasy, are becoming more common and are much more often manufactured in overseas laboratories and imported into Australia without being cut or diluted.

Controlled precursors are much the same in that they are purchased in their pure form, not mixed with other substances, but in each of these cases it is common that the pure substance may still contain a very small amount of impurities as a result of the manufacturing process or other chemical contamination or, as I mentioned before, degradation.

Dealing with the issue created by the Kingston decision is not, unfortunately, a question of simply prescribing pure weights for every substance listed in the regulations. Aside from it being a huge task to sit down and determine an appropriate weight for all the substances listed, it leaves the issue of needing to be able to determine whether or not the substance you are dealing with in a particular case is pure or not.

As I mentioned earlier, for many of these new synthetic drugs, which are becoming more and more common, Forensic Science SA does not have the testing capabilities to conduct purity testing to the level that would be required to prove to a sufficient standard whether or not the substance is pure. Because of this, even if pure weights were prescribed for each substance in the regulations, it would not be possible to conduct the required testing on each substance. Therefore, an alternative approach has been taken to address the issue, in the form of this bill.

The bill has 4 clauses and a schedule containing a transitional provision, and the substantive clauses of the bill are clauses 2, 3 and 4. I will also note that there is no commencement clause, and therefore the bill will commence upon receiving assent in order for it to take effect as soon as possible.

Clause 2 amends the definition of 'commercial quantity', 'large commercial quantity' and 'trafficable quantity' in section 4 of the Controlled Substances Act. It inserts a new subsection (ii) into the definitions which provides that, for a drug or precursor not contained in a mixture, where there is no pure weight prescribed in the regulations the mixed weight is to be used.

Clause 3 makes an amendment in the same terms to section 33LB of the Controlled Substances Act to the definition of 'prescribed quantity' of a controlled precursor.

Clause 4 of the bill amends section 33OA of the Controlled Substances Act to insert a clause setting out how it is to be determined if a controlled drug or precursor is contained in a mixture or not. The new section 33OA(3) provides that a controlled drug or precursor is taken to be contained in a mixture unless it is proved beyond a reasonable doubt that the drug or precursor was not contained in a mixture or was in its pure form.

In effect that means that, for those substances where it is likely to be pure (such as the one in the Kingston case) but there is not sufficient purity testing available, the substance will be taken to be contained in a mixture, and so the relevant mixed weights are used. In the rare case (such as Kingston) where, for some reason, specialist testing has been conducted and it has been found that the substance is pure, the new limb of the definitions in section 4 are enlivened and allow the mixed weight to be used for that substance where no pure weight is prescribed.

The transitional provision in schedule 1 of the bill provides that the amendments to the principal act contained in the bill are to apply retrospectively. The amendments are taken to apply, and to have applied, as if they formed part of the principal act from 10 September 2009.

This date was chosen as the earliest available date where the definitions of 'commercial quantity', 'large commercial quantity' and 'trafficable quantity' were present in the principal act in their current form such that the new part of the definitions inserted by the bill can be read as forming a part of those definitions. The retrospective application of the amendments, in this case, is essential to preserve previous convictions that may have been vulnerable to challenge following the Kingston decision.

It is the intention of the bill that the amendments made to the principal act will be taken to have always formed a part of the Controlled Substances Act since the relevant date, and as a result it is the clear intention of the bill that the amendments will therefore apply to, firstly, any proceedings for a relevant offence finalised before the day on which this act is assented to (including, without limitation, proceedings where a conviction or finding of guilt was recorded before that day); secondly, any proceedings for a relevant offence commenced (but not finalised) before the day on which this act is assented to; and, thirdly, any proceedings for a relevant offence commenced on or after the day on which this act is assented to.

This transitional provision is vital to the operation of the bill, as it applies to past proceedings and convictions, present proceedings yet to be finalised, and of course future proceedings, covering all possible situations and ensuring that these unscrupulous drug traffickers and manufacturers do not slip through the net.

Applying any legislation to operate retrospectively is not a common decision to take; however, the situation that has arisen here presents some exceptional circumstances which make it necessary for the protection and the safety of the community. The retrospective application of the provisions of the bill does not create new criminal liabilities that would catch persons unaware; rather, the provisions restore the previous understanding that law enforcement, prosecution and also defendants had been operating under, which is that where there was not pure weight prescribed for a substance and the substance could not be shown to be pure to a satisfactory standard the mixed weight was used.

Everyone in the community is aware that trafficking or manufacturing controlled substances is illegal. The individuals and organisations involved in trafficking or manufacturing commercial or large commercial quantities of these substances are sophisticated players and know that their conduct is illegal. The retrospective application of these provisions prevents those persons from taking advantage of an unintended loophole created by the Kingston decision.

It is strongly against the public interest for convicted drug traffickers and manufacturers to be able to go back and challenge a previous conviction on such a technical point when the facts of the trafficking and the manufacture are not in question.

This bill will ensure that offenders cannot get away with only the basic trafficking or manufacturing offence or, indeed, escape conviction altogether when they are in fact dealing with huge quantities of controlled substances and precursors, and they will instead face the appropriate penalties. I commend the bill to this chamber and seek to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

The short title is the Controlled Substances (Pure Amounts) Amendment Act 2022.

Part 2—Amendment of Controlled Substances Act 1984

2—Amendment of section 4—Interpretation

The definitions of commercial quantity, large commercial quantity and trafficable quantity are amended so that, in relation to a controlled drug or controlled precursor that is not contained in a mixture (that is, a drug or precursor in its pure form), a commercial quantity, large commercial quantity or trafficable quantity (as the case requires) is—

if an amount is prescribed for the purposes of the relevant definition by the regulations—a quantity of the drug or precursor that equals or exceeds the amount so prescribed; or

if an amount is not prescribed—a quantity of the drug or precursor that equals or exceeds the amount prescribed (for the purposes of the relevant definition) as the quantity for any mixture containing the drug or precursor.

A definition of mixture is also inserted.

3—Amendment of section 33LB—Possession or supply of prescribed quantity of controlled precursor

The definition of prescribed quantity (relating to a controlled precursor) in section 33LB(5) is amended consistently with the amendments to the definitions in section 4.

4—Amendment of section 33OA—Basis for determining quantity of controlled substance

A new subsection is inserted into section 33OA to provide that, for the purposes of the definition of trafficable quantity, commercial quantity or large commercial quantity in section 4(1) or the definition of prescribed quantity in section 33LB, a controlled drug or controlled precursor will be taken to be contained in a mixture unless it is proved, beyond a reasonable doubt, that the drug or precursor was not contained in a mixture or was in its pure form.

Schedule 1—Transitional provision

1—Amendments apply retrospectively

The transitional provisions provide that the amendments to the Controlled Substances Act 1984 effected by the measure will be taken to apply, and to have applied, as if they formed part of the Controlled Substances Act 1984 from 10 September 2009 (immediately after the commencement of the Controlled Substances (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008).

The Hon. J.M.A. LENSINK (11:16): I rise to make some remarks in relation to this piece of legislation. In doing so, I thank my learned colleague the member for Heysen for his advice in relation to the Liberal Party's position and his support in preparing for this debate today. This bill, as the Attorney has already outlined, was introduced in response to the decision of the Court of Appeal in Kingston v The Queen; Maxwell v The Queen on 1 September 2022. The decision identifies a problem in the definition in relation to measurement of a quantity of controlled substances, in this case butanediol, which goes by the common name of fantasy.

As has been publicly reported, the Court of Appeal ruled that, as South Australian legislation does not have a quantity for pure forms of more than a hundred drugs, people in possession of pure quantities could not be convicted of trafficking large commercial and commercial quantities of drugs. In the particular case in question, this has reduced the maximum penalty that the pair were facing from life in prison to a potential 15 years and also has broader implications for current and future prosecutions, including people who may be captured as part of Operation Ironside.

The Controlled Substances Act provides for trafficking offences, including in section 32, that include offences by reference to the quantity of the relevant controlled drug. Where an offence is constituted by reference to a quantity—for example, a large commercial quantity—the relevant quantity is prescribed by regulation. The regulations specify quantities of controlled drugs, including butanediol. For the purposes of many but not all controlled drugs, a definition of quantity is prescribed for mixed and pure forms, respectively. At paragraph 86 of the judgement, the Court of Appeal observed:

In the distribution of controlled drugs, it is a notoriously common practice to dilute the drug by adding another substance, or substances, either to maximise profits or to ensure that the dose delivered will provide the euphoric or narcotic effect without causing a fatality or serious illness. The process is colloquially referred to as 'cutting'. The proportion of the additive to the drug in its pure form varies widely. The quantities prescribed for the pure form of a controlled substance are often significantly less than the quantity prescribed for the mixed drug because of the practice of drug dealers to dilute or 'cut' a drug before it is sold to an end-user.

In the Kingston judgement, the Court of Appeal found that the relevant drugs were in a pure form but were treated at trial, and impermissibly, as though they were mixed. As a result, the Court of Appeal found that the evidence did not establish the charged quantity offence and instead substituted a verdict of guilty of attempted trafficking of an unquantified amount.

This bill provides for the assessment of quantity of those controlled drugs for which a pure quantity is not prescribed by regulation as a mixed quantity in default. If a controlled drug is found to be in a pure form but the regulations are silent on the quantity required for that controlled drug to fulfil a definition of it in a pure form then the measure to be used will be the controlled drug in its mixed form.

The bill further provides, and unusually, that the amendments will apply retrospectively, that is, as the Attorney has outlined, in order to ensure that proceedings already finalised, commenced or in prospect will not be affected by the decision of the Court of Appeal in Kingston. The Liberal Party supports the bill.

The Hon. R.A. SIMMS (11:20): I rise in support of the Controlled Substances (Pure Amounts) Amendment Bill on behalf of the Greens. As both the Attorney-General and the Hon. Michelle Lensink have stated, as a result of the recent Court of Appeal decision in the case of Kingston v The Queen it has been revealed that there is a loophole where pure forms of drugs are not set out in the regulations.

We believe that the bill the government has introduced today remedies this, plugs that gap in the legislation and ensures that the legislation better reflects the will of the community. I think it is fair to say that there was considerable shock in the community in response to that verdict and considerable concern about what that might mean, and so we welcome the government's decision to bring this legislation forward.

I will put on the record that, whilst the Greens support penalties for trafficking and the distribution of large quantities of some drugs and support closing this loophole, we do also believe that it is important when dealing with drugs that we have a discussion around harm minimisation and around reducing the stigma often associated with those who take illegal substances.

The war on drugs does not work. We have seen around the world governments moving towards legalising and regulating some drugs, such as cannabis, and we should be looking at drug taking from a health perspective, not a law and order perspective. My colleague the Hon. Tammy Franks MLC has introduced a bill to legalise cannabis, and I do hope that this parliament considers it as a step forward in terms of dealing with drugs from a harm minimisation perspective rather than a criminal law response.

There are a number of strategies that we can take to implement a health-based approach to drugs. Recently, I called on the Malinauskas government to make pill testing available in our state. In July, the ACT government opened the nation's first fixed-site pill and drug testing clinic, and next month I will be travelling to the ACT to have a look at that site.

This kind of testing facility is greatly needed in South Australia. Pill testing services exist in 20 countries across Europe, the Americas and New Zealand. Pill testing is a harm reduction strategy that not only makes drugs safer but also provides transparency around what is in the market, an important measure to improve user knowledge and education and one that discourages people from using potentially harmful substances. In 2019, the National Drug Strategy Household Survey found that 57 per cent of Australians supported pill testing, with only 27 per cent being directly opposed.

We should be looking to early intervention measures to ensure drug takers are informed and make safe decisions. The South Australian Network of Drug and Alcohol Services in their 2022 position paper on drug law reform states that seeking to address related harms through the criminalisation of people who use drugs is neither effective nor humane. SANDAS takes the position that there should be a strong criminal justice response to the manufacturing, supplying and trafficking of drugs outside of a regulated supply system, but that personal use should not be stigmatised or criminalised.

SANDAS has a number of recommendations for legislative reform that I encourage members of this place, in particular the government, to consider as we move forward in addressing drugs as a health issue. That said, we recognise, of course, that this bill is dealing with trafficking and selling of drugs, and in the Greens we do draw that distinction between the users of the end product and those who are seeking to traffic and sell drugs. On this basis, we are supportive of the bill.

The Hon. C. BONAROS (11:24): I rise on behalf of SA-Best to speak on the Controlled Substances (Pure Amounts) Amendment Bill 2022. From the outset, I think it is very important to put on the record that we, as a parliament, only support the swift introduction and passage of legislation, particularly retrospective legislation, in the most extraordinary of circumstances. This is one of them, and I do not say that lightly, and I do not think anyone in this place treats that issue lightly.

As other honourable members have mentioned, this bill has been introduced today in response to the recent Court of Appeal decision of Kingston v The Queen; Maxwell v The Queen [2022]. Just briefly, again for the record, the appellants were jointly charged with attempting to traffic a large commercial quantity of butanediol, one of the three controlled substances commonly known as fantasy. I understand that that was in the vicinity of some 200 kilograms, with a purity of 98 per cent to 99 per cent.

In finding the liquid was fantasy in its pure form and not a mixture containing butanediol, the Court of Appeal decision has thrown a bit of a curveball requiring parliament's very urgent clarification. With no existing prescribed large commercial quantity for butanediol in the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014, only basic trafficking or manufacturing offences are current options on retrial and for similar fact circumstances.

This bill seeks to amend the definitions of 'commercial quantity', 'large commercial quantity' and 'trafficable quantity' in the Controlled Substances Act 1984 to provide for the use of mixed weight for substances not contained in a mixture, otherwise known as pure substances. It further seeks to amend section 33OA of the act to make clear controlled drugs or precursors will be taken to be contained in a mixture unless proved beyond reasonable doubt otherwise. It is important to note this bill does not seek to move the goalposts, it simply clarifies where those goalposts were thought to have been positioned prior to the Court of Appeal's interpretation of 'mixture'.

Inaction, or even a slow reaction, could have far-reaching implications for current and future large commercial drug trafficking matters. It also has the potential to open the floodgates of appeals of past convictions. Either way, that is probably an inevitable outcome that we are going to have to deal with, but I do understand that there are at least 13 current similar fact matters currently on foot which may be impacted by the Court of Appeal decision. Some are due to return to court before parliament resumes in October, hence the urgency here today. No doubt we will inevitably deal with the outcomes of the passage of this bill in due course, but with those very brief words we support and look forward to the rapid progression of this bill today.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:27): I thank those who have contributed on this debate—the Hon. Michelle Lensink, the Hon. Robert Simms, the Hon. Sarah Game and the Hon. Connie Bonaros—and thank them for their support. I think, as a number of speakers have mentioned, this is not the usual way procedures operate in this chamber and the usual way laws are made. It is only for the most exceptional of circumstances, of which we recognise this is one.

I thank the members both for their contributions today but also their and their parties' helpfulness in terms of being able to take briefings from officers to understand the gravity of this issue in quite a small amount of time. As we said, I do not think any of us want to see people who manufacture and traffic in very large quantities of drugs that can be quite harmful and are often associated with organised crime finding themselves facing lesser penalties than what, I think, was recognised as the clear intent of this parliament in the past.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:31): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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