Ms PATTEN (Northern Metropolitan) — I rise today to also contribute to the debate on the Drugs, Poisons and Controlled Substances Amendment Bill 2015. As previous speakers have mentioned, this bill creates a number of — well, I would say — so-called new offences. I think most of these offences already exist in the bill. It creates seven new offences: trafficking to a child at or near a school; trafficking at or near a school; supplying to a child at or near a school; possessing instructions for trafficking or cultivating illicit drugs without a reasonable excuse; publishing instructions for trafficking or cultivating illicit drugs without a reasonable excuse and with intent, knowledge or recklessness; using violence or threats to intentionally compel trafficking; and intentionally permitting the use of premises for trafficking or cultivation. That is what the bill says it does.
I am yet to understand why we have this bill. Ostensibly it was to address issues that came out of the ice inquiry, and I note your comments, Acting President Ramsay, on the great work and the intense work that that inquiry did. I did not find, looking through the recommendations, any recommendations for these amendments. But ostensibly the bill came out of that ice inquiry and then the government’s response to the ice inquiry. To some degree I was optimistic that it was going to go down the path of looking at harm minimisation, looking at other ways to deal with the terrible and devastating effects that drugs can have on individuals and on our community.
In fact the government said in its response to the inquiry it would:
Focus on prevention and early intervention, through support for programs, initiatives and resources that promote resilience and reduce risk for young people, innovative peer and community-based programs targeting young people outside the formal school system and other groups most at risk, and targeted education and information about ice for … families and communities.
This bill does not do this. As every expert we have heard — governments, even our own police minister here — has said, ‘We can’t keep arresting our way out of an ice problem’. So why has the government introduced this bill, which seems to be attempting to do just that? I find this legislation pretty disingenuous. The government says that this is all about ice, and then in a single line in the bill summary it says it has broadened the offences to include all drugs to ‘maintain consistency’ with other illicit drugs offences in the drugs act. That is not true, and it is just poor legislation.
Extending this legislation beyond ice offences was not necessary. We have done it with cannabis. We have been able to carve out certain drugs within our legislation. We could have done that with ice, but we did not. If we look at section 75 of the principal act, headed ‘Use of drug of dependence’, we carved out cannabis. If the government were really saying that this was an effective way — which I dispute — of tackling the problem of ice, it could have set this with ice specifically, but instead I believe this is a lazy way. The government has expanded the offences to include all drugs, and I have a number of concerns about this.
It is great; it is kind of like the Herald Sun law: it is a simplistic thing, we are going to stop trafficking around schools — whoo hoo, it is now an offence. It sounds great, it sounds very protective, but what we know is this is not going to protect young people; this is going to negatively affect young people. All the research suggests — and I have read a lot in this area because it is an area that interests me substantially — that the people supplying drugs to teenagers at schools are teenagers. This bill misleads people; it is actually just rhetoric. We already have provisions specifically dealing with the crime of trafficking and supplying to children, and we also have offences dealing with the possession of material around trafficking. Everything in this bill already exists in the principal act.
But we continue to ignore the large amount of research, and again I point to the work that you did, Acting President Ramsay, that looked at different approaches and that indicated that punitive approaches and heavy-handed sentence increases actually negatively impact on our society. They impact on our most vulnerable, they are ineffective against substance abuse and subsequent reoffending and they only serve to increase stigma and ignorance. This bill is not about ice. Suggesting it is so is a gross misrepresentation, and it is disappointing to see it noted with such gusto in the explanatory memorandum and in the second-reading speech that this is about tackling ice. It is not.
As a result of this bill being all about drugs it is going to capture a number of individuals who were in no way involved with ice. In fact I would hazard a guess that the majority of people who will be affected by the amendments in the bill will not have had anything to do with ice; they will have been involved in the far more popular substances being used out there by young people, including cannabis, ecstasy and possibly prescription drugs.
Harsher sentencing and punitive approaches to drugs are not in line with harm reduction approaches; they are not even in line with the big, broad statements that this government has made and said it will implement to target the effect that ice has on our community. We know harsher penalties do not work. How many times do we have to say this? We cannot arrest our way out of this problem. We now have ex-Premiers saying this; we now have ex-judges saying this; ex-police officers and any number of experts are all saying this.
I would now like to go to some of the specific offences outlined in this bill. The first is trafficking at or near a school. The first and most important part of this clause is that it will increase penalties for trafficking within 300 metres of a school. This is not going to catch the high-level drug traffickers; this is not going to catch the importers of ice. You do not see the heads of organised crime hanging out behind the bike shed selling ice or boiled lollies. Rather this is who it will catch — the addicts who are unaware that they are within 300 metres of a school.
In my region around Richmond there are a number of addicts who have a trafficable supply of drugs on their body that they are probably using personally. This provision will catch the 18-year-old school kid who is buying pills for their mates for schoolies. It may catch the parent providing another parent with a cannabis tincture to aid a child’s epilepsy. Trafficking to a child at or near a school or supplying to a child at or near a school I am sorry to say are offences that already exist. Section 71AB of the principal act already prohibits trafficking in a drug of dependence to a child and section 71B prohibits the supply of a drug of dependence to a child. They already exist. So why are we introducing additional laws when they already exist? If we are so concerned about children needing extra protection around a school — we already have legislation saying you cannot supply; now we are adding greater penalties to doing it around a school — why stop at schools? Why not hospitals? Why not youth hostels? Why not places where under-age individuals might be sleeping rough? Why not homes? Why not detention centres? Why are we carving out one location where we feel children might be vulnerable and not others? Since the people most likely to be supplying each other in these zones are young people who are possibly attending school, the increase in these penalties is not going to impact on actual supply chains; it is going to target and impact young people with friends and siblings at that school.
Every time I looked at this online I found that in everything I looked at every single expert was saying, ‘Yes, we can worry about ice and we can worry about illicit drugs, but do you know the main drug we need to be worrying about with young people? It is alcohol’. Our kids are dying and having accidents and becoming impaired for the rest of their lives because of alcohol. Are we banning alcohol within 300 metres of a school? Are we banning the supply of alcohol within 300 metres of a school? No, we are not. Yet we know — the experts know, the government knows — that alcohol is a far greater problem than ice is to young people.
I do not support the presence of drugs in schools; these are learning environments at which there are a lot of vulnerable minds, and I do want to look after young people’s safety. But the most basic of harm minimisation analysis indicates what this may do. As Ms Hartland mentioned in her contribution, even if children and young people are actually aware that we are talking about this issue and changing the law, what will happen? We will send them off campus. We will send them off school grounds, where they will be away from supervision, away from their education and away from some of the safety measures we can provide for them.
Let us consider just what trafficking is. People imagine it to be some big haul of white powder that customs people happily photograph themselves with. I had a look at the Victoria Police booklet Young People — Alcohol, Drugs and the Law. It warns that trafficking includes giving away drugs or holding drugs for someone. You can be found guilty of trafficking if your friend gives you money to buy drugs for them from a dealer even if they do not use the drugs or make any money. That is trafficking.
I also note that these two new sections are now attached to the Confiscation Act 1997. Last year when we passed the Wrongs Amendment Act 2015 we changed who could apply for compensation if they were harmed within a prison system. I will talk about that a little bit later, but we are now attaching amendments to this act that will affect very young people. Let me just explore that for a minute. Should a person who has been charged with this offence later have a partner or a child in prison and that person is injured due to neglect, they will lose almost all compensation to help them care for their injured relative. We passed that legislation last year.
Let us think about a 20-year-old young fellow who has a 17-year-old brother. He is not a kingpin or a drug dealer; he is a 20-year-old kid. He is not out there trying to push drugs on other kids, but he does not want his 17-year-old brother to get in contact with somebody else — a stranger — going around and buying some pills or some cannabis to take on schoolies. So he helps his brother out and does this and he is caught; under this legislation he supplied a child and he is caught. He does his time; he survives prison — just. He moves back into the community. The prison time has probably set him on a criminal path, as so often happens, and this path proves to be intergenerational.
Later he finds that his own child is severely injured in prison due to the neglect of the prison system. This individual will now have no access to compensation to help them care for that injured child. These are the consequences; these decisions to randomly add amendments to this bill that I again assert are not necessary could send these people down a path. This will affect young people. We know that one of the greatest risks to heading down a criminal path is to meet with crime, to meet with the prison system or to meet the justice system at a young age and we are simply further enabling that.
Just to be clear about ice and the use of it amongst young people, the National Drug Strategy Household Survey found that — surprise, surprise — the usual source of drugs for young people is a friend. The average age of drug initiation across Australia is 18.3 years old — not when they are at school. The percentage of people aged 14 to 19 who have used speed or ice is 2.1 per cent. We largely accept — and the ice inquiry also accepted — that when we talk about methamphetamines about 50 per cent of those users are using ice, or the crystal form, and the other 50 per cent are using the powdered form. So we are talking about a survey figure of 1 per cent of 14 to 19-year-olds who have used ice in the last year. I wonder how many of that 1 per cent of 14 to 19-year-olds bought their ice within 300 metres of a school? I am just asking because I was not able to find any figures on this.
I would now like to turn to new section 71A, which is about possessing instructions for trafficking or cultivating illicit drugs without reasonable excuse.
Firstly, ostensibly this already exists. We have section 71A, which prohibits ‘possession of substance, material, documents or equipment for trafficking in a drug of dependence’. The main difference with between that and new section 71E is that lack of a mental element, where such possession is only committed when there is a reasonable excuse. Section 71A provides that you needed to have intent. There needs to be proof of intent that you were going to use that document to cultivate or traffic. This now says you do not need to intend to use it for that; you just need to not have a good reason for having it.
I refer to Ms Hartland’s question about what possession means. I have been involved in a couple of pornography possession cases, and I can tell you your cache history, your browser history, can be deemed possession, and it has been deemed position in a number of child pornography cases and in a number of terrorism cases in recent times. This is no longer about having a copy of High Times next to the toilet where it used to sit in a group house I lived in. I am afraid to say that I am probably guilty of this. If this becomes law, I am guilty. I subscribe to a number of cannabis business and research newsletters. They discuss the sale and manufacture of cannabis. Often there is explicit information regarding growing methods or advertising and sales tips. It is all very interesting stuff, and I think it is very interesting in my work as a legislator to know about it. I suspect that my work as a legislator may give me a reasonable excuse for subscribing to them, maybe, but what about a young entrepreneur, a young fellow studying marketing at college? Is this a reasonable excuse for him to have information on the best ways to advertise cannabis and the best practices and tips for cultivating cannabis? He does not have to show that he has an intent to use it; he just has to not have a good reason for having it.
The same goes for publishing instructions for trafficking or cultivating illicit drugs without reasonable excuse or with intent, knowledge or recklessness. This clause concerns me a great deal, and I will be proposing an amendment to this provision. We are talking about publishing instructions. You do not have to intend to use them. What is a reasonable excuse for putting something up on your Facebook page? That it was funny? Is that a reasonable excuse? I know a lot of this information goes up there because people think it is silly. Under this bill the meaning of ‘publish’ includes ‘to sell, offer for sale, let on hire, exhibit, display, distribute and demonstrate’. Is posting to a Facebook page for parents whose children have severe medical issues for which cannabis oils may be helpful a reasonable excuse? Is responding to a question on Reddit a reasonable excuse? What about providing information on forums that relate to cultivation? When I was at school, there was a thing going around about how to grow magic mushrooms in your gym locker. It was not true. It was a joke. But it was information about cultivating an illicit drug, and I am not sure that ‘Because it’s funny’ is a reasonable excuse. I too could have got caught up passing that message around the gym lockers.
If I have a previous drug-related charge, am I able to ever establish a reasonable excuse, such as academic pursuit? The inclusion of the mental element ‘reckless’ is enlivening. This essentially means that anything I post online is a publication. The objectives of this offence seem to be focused on capturing those who disseminate information regarding trafficking and cultivation, and that could have been done by simply amending section 71A to capture dissemination with intent for the material to be used to traffic.
New section 72D relates to intentionally permitting the use of premises for trafficking or cultivation. We already have offences of conspiracy, aiding and abetting, so this is another superfluous offence that does nothing more than contribute to this image of ‘We’re fixing things; we’re fixing the ice problem’ without actually doing anything that will address the ice issue.
As I said, I think this legislation is unnecessary. It is poorly constructed, it is against best practice, it is against evidence-based research, it is superfluous in the face of current offences, and I think it is disingenuous. I would like to flag now that I will be introducing some amendments to this bill for the house to consider in the committee stage. These amendments will propose the removal of section 71E in clause 10 of the bill as being superfluous, inappropriate and an inappropriate strict liability offence. They will also propose deleting the mental element of ‘knowing’ or ‘reckless’ from section 71F.
Australian Sex Party amendments circulated by Ms PATTEN (Northern Metropolitan) pursuant to standing orders.
Ms PATTEN — I hope that my colleagues will consider these amendments and support them. They do not impact the overall intention of the bill, which I still believe has got a number of critical issues, but they do remove some of the unnecessary and clunky additions to what I consider a very problematic bill. I think this bill should go to an inquiry. We have just established a drugs inquiry. The government has just supported a drugs inquiry. It could have very easily asked that inquiry to consider this bill, to further the recommendations from the ice inquiry and to further consider some of those issues. I do not believe this bill does that.
The offences that this bill introduces are not in line with harm reduction or evidence-informed practice. They push a punitive approach, long proven to be ineffective, over — as Mr Ramsay mentioned in his contribution — rehabilitation, over therapeutic jurisprudence, over drug courts. It is disappointing. I think this is probably one of the most disappointing bills I have seen since I have come into this house. It just provides that same old law and order rhetoric. It has not worked; we know it has not worked. Then it uses what I think are poor legislative mechanisms to try to rehash this notion that harsher penalties are going to stop people using and taking drugs, when we know that harsher penalties and these sorts of mechanisms only affect the most vulnerable in our community.
This is not committing funding to rehabilitation processes, needle exchange programs, expanding the Drug Court or expanding those principles of the Drug Court into other courts more broadly — which is another topic Mr Ramsay also mentioned — nor is it about pill testing to ensure safety. This fits nowhere within the framework of harm minimisation or reduction.
All this does is continue the narrative of the evil drug user, the evil drug addict and the false reality that this is somehow going to save our children, while simultaneously ensuring that those exact same children are vulnerable and victimised by this bill. It adds pointless rhetoric that has so long dominated this discussion on drugs when this issue should be moved entirely out of the criminal justice sphere and into the realm of health. I would hope one day to see drugs treated as a health issue, not a criminal one, and this bill does not do that.
