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Drugs, Poisons and Controlled Substances Amendment Bill 2015

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Sam Hibbins MP
Member for Prahran
27 November 2015

Mr HIBBINS (Prahran) — I rise to speak on the Drugs, Poisons and Controlled Substances Amendment Bill 2015. The Greens are concerned about this bill and the unintended consequences that could arise from it. This bill obviously takes a tough on crime approach that creates a range of new penalties, which are already either covered by the law, so it is just for duplication and just for show, or they have increased already very high maximum penalties to extremely high maximum penalties which the court is very unlikely to take advantage of and thus adds nothing to the fight against ice.

I am sure the government believes that this is just a cheap solution to make it look like it is doing something — that it is tackling ice — rather than making the required financial investment in treatment and rehabilitation and expanding the Drug Court approach across Victoria. Worse still, these laws risk criminalising people thinking about committing a crime and criminalising young people unnecessarily. The Greens support laws that maintain criminal penalties for the trafficking of drugs. What we do not support is the ramping up of penalties without any evidence base and without a clear need identified by the court and without proper consideration of the unintended consequences.

I will go through this bill section by section as each deserves proper interrogation. I will start by saying that all offences in this bill relating to a drug of dependence include cannabis as well as hard drugs. The bill was touted as this big ice bill but in effect it is a catch-all. Clause 5 provides for up to 25 years imprisonment for the trafficking or attempted trafficking of a drug of dependence to a child at a school or in a public place within 300 metres of a school. As we have heard, that is now going to be amended to 500 metres. Trafficking is defined as possessing for the purpose of selling or selling. Trafficking is selling any quantity, although higher quantities have higher penalties, which is a step up from current laws where a person trafficking to children in any location could go to jail for up to 20 years, which is already a considerable penalty.

Clause 6 provides for 20 years imprisonment if a person traffics in this area but it is not to a child. Currently the penalty for a person trafficking drugs to an adult is 15 years. This law increases that to 20 years if it occurs within 500 metres of a school. I note this law does not take into account the time of day or whether there are children present at the school. These laws do not distinguish between whether it is an adult or a child doing the trafficking; however, nor do the trafficking laws, so it is up to the court to decide the penalty. So potentially a teenager who takes a few grams of marijuana to school to sell to their friends could be looking at a 25-year penalty.

Given that we already have harsh penalties of 20 years and that drug dealing either near or at school would already be considered as an aggravating feature that a judge would take into account within the existing maximum penalty, it is very difficult to see what this adds to the fight against drug dependence and drug dealing. In fact data from the Crime Statistics Agency shows that over the past five years, between just 7 and 29 trafficking offences have been recorded each year on school grounds. That is less than 1 per cent of the statewide total of trafficking offences. This is hardly evidence that school grounds are the target of drug dealers and thus in need of greater deterrence. In fact figures show the opposite. Of the 2500 schools in Victoria, there have been just a few cases of drug dealing each year. So not only do the Greens believe this law is unnecessary, our concerns are that this law has unintended consequences and could target children dealing drugs or on-selling drugs at schools rather than the larger drug dealers who I am sure it is intended to target.

The government has confirmed that the majority of the 7 to 29 people prosecuted each year for trafficking at schools are in fact children. So this new tough on crime, tough on ice, approach is actually getting tough on child offenders, who might just be on-selling to their school mates a few grams of marijuana that they got somewhere else. Teenagers going down the wrong path by either dealing drugs or because they are drug dependent need education, welfare, social support and diversionary programs and not to be thrown in jail. The government is arguing, 'Oh well, increasing the penalty from 20 to 25 years will increase the deterrent'. I would seriously doubt that the difference between 20 and 25 years will have much of an effect on a child. Are they really going to understand that time frame? Are they going to know that there has been a change in the law and that that is the new maximum? I do not know whether the government is intending to roll out an education program to let teenagers at schools understand the changes to the law.

Clause 7 creates a new section which provides up to 5 years imprisonment for the use of violence or threats to cause trafficking in a drug of dependence. It is difficult to see how any conduct that would constitute the commission of this offence of violence or threats to cause trafficking would not already be caught by the principles of complicity, either at common law or under the new statutory provisions of section 324 of the Crimes Act. Such provisions would see a person charged with the principal offence and liable to a higher maximum penalty than this offence. Thus it is very difficult to see why this offence is needed or what it adds to the existing law.

Mr Pearson interjected.

Mr HIBBINS — It is very important. The Greens have serious concerns about this bill and its unintended consequences, so I will go through it clause by clause. I hope the member for Essendon does not mind. Heaven forbid we should actually analyse a bill in this house!

Clause 9 provides 20 years maximum imprisonment for supplying — not selling — a drug of dependence to a child at a school or in a public place within 500 metres of a school. The new law does not apply to a child supplying another child with drugs. This is a step up from the current penalty of 15 years, which applies to all other locations for supplying drugs to a child. Again there is no evidentiary basis for this increase in penalty. Data from the Crime Statistics Agency found that over the past decade there have been six years where zero offences were recorded of supplying drugs around schools and four years where there was one case of supplying drugs around a school. Given that there are 2500 schools in Victoria, this is an extremely low number, making this five-year increase in penalty simply unnecessary.

Clause 10 adds a new section, which provides for up to five years jail for, without a reasonable excuse, having possession of a document containing information about trafficking or cultivating a drug of dependence. Again this law applies to both children and adults and applies to cannabis as well as methamphetamines, heroin and so on. There is uncertainty as to how possession of a document would be interpreted in respect to this clause. There is no definition of 'possession' in the bill, and it is thus subject to common-law definitions, which are very broad.

I am sure if you were to look online, at websites, at YouTube videos or in books you would find plenty out there which would advise how to grow cannabis, make methamphetamines and so on.

We have been advised by the government that possession of a document does not include viewing something online or even bookmarking something online. It only applies if you download and save a document onto your computer or copy some text or an image from the internet into an email or document on your computer. We have been told that the department was unable to clarify whether saving a hyperlink to a web page on your computer in some way constitutes possession of a document or not. If a young person looks up out of curiosity how to grow a cannabis plant, then copies and downloads that information onto a computer, into an email or onto a social media account, they could be subject to five years jail. There is no requirement under this law that a child must actually have the intention to grow cannabis or to make ice.

Section 71 of the act already criminalises possession of a document containing instructions relating to the preparation, cultivation or manufacture of a drug of dependence, but that law specifies that the person must have the intention of using them to do so. The law carries a maximum term of 10 years imprisonment. The difference between section 71A of the principal act and new section 71E is that with this new law an intent to use the information to cultivate the drug is not required, which means that many people who possess this information for no particular reason would be charged under this law.

Section 13 of the bill specifies that an adjourned bond can be given if the court is satisfied on the balance of probabilities that an offence was not committed by the person for any purpose relating to the cultivation of or trafficking in a drug of dependence, which is all well and good, but it just highlights how heavy-handed and problematic this new law is. If the intention to cultivate a drug is proven, it is already covered by the existing law. If no intention is proven, the court can determine on the balance of probabilities that the person did or did not have the intention to do it. This is more than likely to be the case given they did not have evidence to prove the intention. Even receiving an adjourned bond seems quite heavy handed for not actually having anything to do with drug cultivation or trafficking; rather, it can be just for possessing information.

This is an incredibly low burden of proof for a five-year prison term, and it certainly risks criminalising curiosity. It sounds like it is a waste of our courts' time, as many people may have these documents accidentally, incidentally or out of curiosity, and the existing law captures drug manufacturers who have the intention to use the information to cultivate and traffic drugs. I assume these were the real targets of this law, but as I said, this law looks like it will have the unintended consequence of criminalising curiosity and targeting young people.

New section 71F, introduced by clause 10 of the bill, provides for 10 years jail for publishing a document without reasonable excuse or obtaining instructions for the trafficking and cultivation of a drug of dependence with the intention that the instructions will be used by another person for the purposes of trafficking in or cultivating a drug of dependence, or knowing or being reckless as to whether the instructions will be used by another person for the purpose of trafficking in or cultivating a drug of dependence. The bill specifies that it is irrelevant whether the instructions were actually used to produce drugs. For the purpose of this section 'publish' includes sell, offer for sale, let on hire, exhibit, display, distribute and demonstrate. Again, there is no differentiation in penalty between cannabis and other drugs. Children as well as adults will be subject to this law. There is no adjournment bond option in relation to this clause.

There are countless websites, blogs and YouTube videos on how to cultivate cannabis or make methamphetamines. These sites are unlikely to be captured under this law, making it highly ineffective. With the introduction of this law, I am sure a savvy, experienced drug trafficker will ensure that their instructions on cultivating drugs are online on a website registered in a place where it is not illegal to publish this information, which would mean they could not be prosecuted under this law. Meanwhile, a kid who looks up how to grow cannabis and shares a document with a friend via email or message, by posting it on Facebook or by sharing it via some other electronic means, could face up to 10 years jail. This law essentially risks criminalising curiosity. It is likely to target disadvantaged people who do not know the laws, while the professional shrewd traffickers will very easily act outside the law and not be captured by it.

Clause 12 creates new section 72D, which creates a five-year maximum term of imprisonment for permitting the use of premises for trafficking or cultivating a drug of dependence. For an offence to be made out under this section a person would have to intentionally permit the use of land or premises for trafficking in or cultivating a drug of dependence. If such intent were proven, it is difficult to see how any conduct constituting an offence under this section would not also be caught by the principles of complicity, in which case a person could be charged with the principal offence, which carries a higher penalty. This is another new law on the statute book that is just for show.

Clause 17 of the bill adds new laws to the Confiscation Act 1997 in relation to trafficking around schools. The Greens remain very concerned about provisions in the Confiscation Act. We are concerned that there does not need to be a link between the crime and the property to have the property confiscated, and the government has not produced evidence to show how our confiscation laws at the time were not working when changes were made under the previous Parliament.

We have been concerned about the effects of such provisions on dependants of someone who is involved in serious drug activity. The onus is on them to seek out legal assistance and go to court to try to have some finances or property put aside for them due to hardship, or to seek an order to exclude the property from forfeiture if it was their own property from an inheritance and the offender was only living with them.

I will conclude by saying that the Greens will not be supporting this bill, as it is completely unnecessary. There is no evidence base to suggest that increasing these penalties or creating these new provisions will in any way tackle the problem of drug dealing or ice. Worse, this bill could have the unintended consequence of criminalising young and disadvantaged people unnecessarily while allowing professional traffickers to easily work around these laws.

This tough-on-crime approach to drugs is an easy sell, but it fails to recognise the international evidence about the best way to reduce the use and harms of drugs. I am disappointed that the Labor government has taken this approach. I hope a more mature, evidence-based and compassionate approach will be taken in the future.

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Sam Hibbins MP
Member for Prahran
27 November 2015




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