Drug Misuse And Trafficking Amendment (Ongoing Dealing) Bill

Debate resumed from 7 May.

Mr TINK (Eastwood) [8.33 p.m.]: The Opposition supports the Drug Misuse and Trafficking Amendment (Ongoing Dealing) Bill but is extremely concerned about unnecessary limitations in schedule 1, which states:

A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.

The Opposition believes that there should not be a limit of 30 consecutive days and that cannabis should not be excluded from the ambit of this bill. Other than that, the Opposition supports the bill. Chapter 2 of the royal commission's report into policing responsibilities in New South Wales, in which a fairly lengthy extract deals with legislation of this type, should be examined. The royal commission did not see a need to limit and read down the proposed legislation as the Government has done. At page 229 the report states:

Regardless of the approach taken to the personal use of prohibited drugs, this Commission considers that a need remains for active law enforcement which targets suppliers.

There is no limitation there which says that law enforcement should not be targeting suppliers of cannabis. At page 230 the report recommends:

. . . that consideration be given to amending the Drug Misuse and Trafficking Act 1985 by creating an indictable offence of "engaging in commercial" supply to catch those instances where a person, who is obviously engaged in a regular business of supply, is presently able to minimise his or her criminality by holding and dealing in drugs in quantities less than the indictable or commercial quantity.

In the notes to that chapter there is also no reference whatsoever to exclude cannabis from the legislation or indeed to insert a 30-day limit. The royal commission’s proposals in both cases in that respect are at large, and the Opposition strongly believes that the legislation should apply at large both to prohibited drugs and to an open-ended time period required to commit the offence. The legislation, as the royal commission said, is designed to deal with people repeatedly dealing in quantities of drugs which at law are deemed to be small quantities of drugs but for which there is no substantial penalty or deterrent for those apprehended.

The royal commission made the point that people who are repeatedly caught dealing in or possessing small quantities of drugs on the street are quite likely to be dealers of commercial quantities if their repeated transactions are aggregated. I agree with the honourable member for Cabramatta that the police have been doing a great job at Cabramatta. I have said that repeatedly and I am happy to say that again tonight. Rather than repeat the Cabramatta round robin the Parliament can do more to back up
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the police and give them and the courts powers to deal much more effectively with repeat small-quantity dealers who are pulled in from operation Puccini and other similar operations.

An opportunity presents itself for the Parliament to provide a tangible backup to the police identified by the royal commission to stop the revolving door or round robin effect of people going in and coming out of the courts on minor charges. An enormous amount of police time is invested in waiting in court whilst these matters are dealt with. With not guilty pleas police can be tied up in the courts repeatedly for long periods, even though the final result will be yet another bond or fine, which for the type of people we are talking about is no deterrent at all. This opportunity will send a message to the courts that tougher sentences are expected in these cases. In the drafting of the bill the Government has chosen to talk about the supply of a prohibited drug for financial or material reward. That is an interpretation of the royal commission recommendation. I have already in the Parliament a bill which has the support of the Opposition party room.

Those general words are dealt with in that bill and provide a test of much more general application and therefore greater deterrent. The Opposition does not seek to hold up the bill by quibbling about the words "supply a prohibited drug for financial or material reward" even though it takes a different approach. The coalition, without moving amendments, cannot wear the 30-day limit in respect of cannabis. I respectfully disagree with the letter from the President of the Law Society of New South Wales dated 13 May 1998. I say "respectfully" because I always appreciate the efforts of the Law Society and the Bar Association, which provide submissions to me and to other honourable members that we read with great care. Although full account is taken of their submissions I cannot agree with the key conclusion of the Law Society which stated:

The legislation creates an enormous potential for police harassment and discriminatory action. Individuals will be targeted and they will be liable to a punishment far greater than society would want.

The legislation is before this House because of a recommendation of the royal commission, which identified a serious potential for police corruption under present law. Opposition members agree with the Government that legislation of this type should be put before this Parliament, and passed. Police will be tempted to load up people with a greater quantity of drugs than they are carrying, and the small quantities that repeat dealers carry would result in a round robin. Dealers in small quantities of drugs come into the courts and leave them without any comprehensive sanction or punishment being imposed.

Regrettably, and illegally, police dealt with that in the past by loading up suspects or planting greater quantities of drugs, which resulted in the offenders going to gaol for longer periods. That is the most serious perversion of the course of justice that one could imagine. I strongly support the royal commission's approach. I believe that whatever concerns there might be about police harassment and discriminatory action - about which the Police Integrity Commission will always need to be vigilant - the greater threat is posed by the problem identified by the royal commission, one that this legislation attempts to address.

I read the contribution by the Minister for Local Government, who described how police would use this legislation. The Minister said that police would gather evidence of three deals without alerting the subject that they were gathering evidence. In that way they would establish three strikes within 30 days through covert surveillance. I understand that, but the coalition does not agree that the bill should be so limited. Open deals occur whereby someone taken to court comes under public notice and is then caught outside the 30-day period on a second or third occasion: why should there be a statutory limit of 30 days? If it is known that a person has come under notice twice within 30 days, that person can take a holiday or withdraw from the dealing loop until the remainder of the 30-day period expires. That person will be able to deal again without being subject to this legislation.

I do not care how many covert operations are run, no-one can convince me that that scenario is not a real one, that informants will not tell people what is going on, or that from time to time key surveillance targets will not find out what is going on and go to ground until the 30-day limit passes. I cannot understand why that limitation is in place; it seems to be an open invitation of the most public type to say, "If you are in trouble and if your two strikes are up, take a hike until the rest of the 30 days expires and then start again without any problem." The limitation of 30 consecutive days is unnecessary. There is no need for that door to be left open for dealers. We have to be tougher than we have been in the past.

I am fortified by the wording of the bill, which otherwise refers to supply for financial or material reward. Those words describe an exceptionally serious offence and I have no difficulty - indeed, I have great comfort - in removing that 30-day
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limitation from the bill. For the person supplying financial or material reward a 30-day limitation safety valve is not needed. I am not troubled that that provision would apply to a person who is caught dealing three times over a longer period and seeing that person facing the proposed maximum penalties. I am concerned that the Government has excluded cannabis from the provisions of the bill. For reasons best known to the caucus there is an inability to come to grips with cannabis as a prohibited drug and for it to be treated in the same way as other prohibited drugs. There seems to be a problem in having the same general set of rules for cannabis as for other drugs.

I strongly believe that the Government is allowing the drug problem to get out of control with its inability to deal with this key gateway drug. Schedule 1 to the Drug Misuse and Trafficking Act 1985 makes no distinction between cannabis leaf, cannabis oil, cannabis plant or cannabis resin and drugs such as heroin for the purpose of them being prohibited drugs, other than differences in quantity. The amending bill contains a proposal to delete cannabis, but that proposal is not in line with the thrust of the principal Act. It is not in line with the longstanding thrust of the Parliament's intention contained in the principal Act; it is there because the caucus has a problem in dealing with cannabis in the same way as other drugs.

I am talking about cannabis being supplied for financial or material reward, which should be dealt with in the most serious manner and should not be the subject of an exemption of the type now contemplated. A recently published book entitled The Drug Precipice - written by Athol Moffitt, who was the President of the Court of Appeal and Royal Commissioner for the 1973 inquiry into registered clubs; John Malouf, a well-known senior pharmacist; and Craig Thompson, a senior magistrate - in its foreword under the heading "Stop Press" referred to the United Nations Narcotics Control Board report for 1997, published in Vienna on 24 February 1998 and available from United Nations information centres in Australian capital cities. The United Nations report states that the prevalence of cannabis abuse in Australia is amongst the highest in the world. The report further states:

The average THC content of seized cannabis samples in Australia is 5 - 6 per cent, which is higher than the average reported in any other country . . . This is aggravated by the abuse of cannabis hybrids cultivated indoors and of cannabis oil with even higher THC content. In the light of that situation, the Board notes with concern the ongoing discussion on the legalisation of cannabis consumption in Australia . . .

The report continues:

. . . the abuse of drugs is becoming an increasingly difficult endeavour, at least partly because of the rapid and growing spread of messages in the environment that promote drug abuse. Many of them can be regarded as public incitement and inducement to use and abuse drugs.

. . . [the] debate about the liberalisation and depenalisation of cannabis abuse and the aggressive publicity in favour of its legalisation are major factors contributing to the attitude of many young people towards cannabis abuse.

To maintain a balance in the public debate, policies that offer alternatives to drug legalisation, and reliable information on the likely effects of such legalisation . . . need to be presented. It is also necessary to stress the importance of the international conventions . . . and to see the issues in an international perspective and not just a local one . . . evidence from public opinion polls suggests that the majority of people are not in favour of any form of such legalisation. The debate, unfortunately, has been taken over by a small number of activists who support some form of drug legalisation.

I turn now to what the authors say. Page 7 of the book states:

Of all the illicit drugs, cannabis (marijuana) is the most complex, both chemically and pharmacologically. Misinformation and controversy about it exceed that of any other substance of abuse. Most misleading of all is its label and image as a "soft" drug (like that of a soft drink). There is no such pharmacological classification as a "soft drug", and this term has helped to create the myth that it is harmless. If it had not been introduced this century into Western society and promoted as "soft", it is unlikely that the present general drug epidemic would have occurred on its present scale.

The authors make an important point about THC content on page 8, where they state:

Most of the marijuana used [in Australia] in the 1960s and 1970s was of a milder strength, usually about 1% THC or less.

According to the United Nations report, the strength is now up to 5 per cent or 6 per cent, which is a dramatic increase. Page 8 further states:

In 1990 the American Bar Association reversed a marijuana decriminalisation policy that had been established for 18 years. The reversal was made because the American Bar Association had become aware of the increased potency of the drug, and it expressed concern that strengths had increased sevenfold from 1974 to 1989. The ABA concluded:

It is a far more powerful drug than before, and therefore poses a far more serious hazard to users today. It is one of our nation's most serious public health problems and requires a renewed nationwide effort to reduce its use.

In Australia in 1997, strengths up to nine times the level of that which alarmed the American Bar Association in 1989 have been identified. The Australian Commonwealth Health Department issued a warning that "major health concerns" had arisen over the fact that cannabis was found to be 10 - 15 times stronger than the marijuana that was used in the 1960s and 1970s².

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The footnote refers to the Commonwealth department of health Handbook for Medical Practitioners and Other Health Care Workers published by the Australian Government Publishing Service in Canberra in 1993. When speaking about cannabis it must be realised that the marijuana being used now is much more potent than it was, and is far more potent than the potency that caused the American Bar Association to reverse a policy to decriminalise cannabis. As for the gateway effect of cannabis, on pages 16 and 17 the authors quote a document from the National Centre for Addiction and Substance Abuse at Columbia University, New York, in 1997. Page 16 states:

The younger the age of commencement of marijuana, the more likelihood of progression to other illicit drugs . . . Over 75% who used marijuana before the age of 17 went on to use other illicit drugs . . .

However, the percentage decreases for those over the age of 17. I simply mention these matters because the Opposition is of the view that the supply of such a drug for financial or material reward is an extremely serious matter that should be dealt with through significant criminal penalties. Criminal penalties are set out in this bill, but the problem is that the bill does not apply to cannabis. The Opposition's proposed amendment would ensure that the legislation applies to cannabis and that the supply of cannabis for financial or material reward is punished most severely. The Opposition supports the bill. I foreshadow the Opposition's amendments and lay them on the table for the information of honourable members.

If the Government is serious about dealing with the drug problem and if its rhetoric on drugs is to be followed through in a meaningful fashion, it cannot leave cannabis out of the loop when talking about supplying a drug for financial or material reward and it cannot impose a 30-day time limit on the offence of supplying prohibited drugs for financial or material reward. Imposing a 30-day limit on such an offence will simply put hardened criminals to the minor inconvenience of rescheduling their working month. If they have two strikes, and they know they have two strikes, they will simply take the rest of the month off on the proceeds from the two deals already completed, come back after the 30 days and start again with impunity.

That is complete and utter nonsense. It is a joke. There should be no such limitation; the law should apply firmly to both cannabis and a crime of general application without being limited in such an artificial way. Under this legislation few people would be caught. This bill is window-dressing; it is acting for the sake of acting. It will not give effect to the spirit of what Justice Wood recommended. It does not give police the power to deal with repeat commercial drug suppliers. So long as the legislation remains in its present form, the problem in Cabramatta and in other places where police could do their job better if they had powers with teeth will continue to exist. Police need powers with teeth to tackle the menaces in a way that will act as a deterrent and will allow us to wind back drug abuse.

No question time in this House passes without the Premier, severely embarrassed by the rising crime rate, blaming drugs. He unfairly blames the Federal Government, especially when he and his caucus are not prepared to take the necessary action to give police the power to deal with drugs and to give the courts the power to impose sentences on drug dealers that act as a deterrent. So long as the Government dances on the head of the pin, so long as it puts artificial time limits on the operation of the legislation and so long as it refuses to include cannabis in this legislation, the drug cycle will not be broken, crime rates will not come down and the Premier's talk about drugs being the problem will simply continue to be the hypocritical nonsense we know it to be. The Premier cannot bring those who support him in the Parliament to do what is necessary to tackle the problem.

Ms MEAGHER (Cabramatta) [8.59 p.m.]: The pharmacological dissertation on cannabis by the honourable member for Eastwood was quite interesting, but the streets of Cabramatta and south-west Sydney are not in the grip of a cannabis crisis. Cannabis is not the drug that fuels the Kings Cross sex industry; nor is it the drug about which my constituents express concern. The major issue involves amphetamines, cocaine and heroin, which is the drug that particularly affects my electorate. I reject the amendment proposed by the honourable member for Eastwood. I support the Drug Misuse and Trafficking Amendment (Ongoing Dealing) Bill because it gives an opportunity to put to an end the cat-and-mouse game between drug dealers and police that happens every day on Cabramatta streets. Drug dealers know that under the law if they are caught with a less than commercial quantity of heroin, that is, less than 250 grams, in their possession, they will be subject to little more than fines or, at worst, a penalty of two years imprisonment.

That is not good enough, because those dealers have their drug stash planted in obscure places down the street. Recently in Cabramatta I heard reports of heroin being hidden in newspapers in newsagencies, in cracks in walls and in gardens. Police work is severely impeded when dealers - known faces - are
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taken away only to go through the revolving door of the Local Court. The dealers appear in court, are granted bail, and in no time are back out on the street peddling drugs again. That process generates frustration amongst police and produces an enormous amount of community anger. I have met with business association groups and members of the local chamber of commerce and attended various public meetings over this issue. People cannot understand how someone known to police as a drug dealer can be arrested in the morning and be back out on the streets in the afternoon dealing again in drugs.

The community is becoming cynical about the role of police, the power of courts and the penalties applied to those who profit from peddling drugs. This bill is an opportunity to close that loophole. It will restore faith in the judicial system not only among my constituents in Cabramatta but also people across New South Wales. The Drug Misuse and Trafficking Amendment (Ongoing Dealing) Bill is an opportunity to send a clear message that the Government is prepared to legislate to empower police to pick up drug dealers and deal with them appropriately. That will be an important reform. This legislation takes into account the operational requirements of law enforcement without impinging on the rights of law-abiding citizens. It is important because, as mentioned by the honourable member for Eastwood, it comes as a result of a recommendation of the Wood royal commission. Paragraph 2.3.3 in Volume II states:

The Commission accordingly recommends that consideration be given to amending the Drug Misuse and Trafficking Act 1985 by creating an indictable offence of "engaging in commercial" supply to catch those instances where a person, who is obviously engaged in a regular business of supply, is presently able to minimise his or her criminality by holding and dealing in drugs in quantities less than the indictable or commercial quantity.

I am pleased that, when in opposition, the then Leader of the Opposition, Bob Carr, championed the royal commission and has set about putting its recommendations into effect. Law reform has promptly been introduced into this House. The bill provides the opportunity to obtain better value from our police and from the resources we spend on breaking the cycle of drug use, drug peddling and drug dependency. Police plan and engage in covert operations at quite considerable expense, but that work is impeded because higher penalties cannot be imposed. This bill delivers the law reform to support police in their work and to make better use of additional resources.

The Carr Labor Government has put more police on New South Wales streets than any previous State Government. It has made sure that the 1998-99 police budget is a record one. I was pleased to hear the Treasurer announce today funding for 100 additional police. But those police will be hindered in their work unless they have appropriate powers at their disposal. The Government has indicated strongly that it is prepared to deal with drug law reform where it can. In 1996 the mandatory life sentences bill was introduced as an amendment to the Drug Misuse and Trafficking Act. That bill sent an important message to those caught supplying commercial quantities of drugs that they would suffer a 20-year penalty of imprisonment. The clear message was that profiting from peddling drugs and preying on the lonely, the young and the vulnerable meant a gaol sentence for a very long time.

The Government also dealt with those people trying to peddle drugs around schools by imposing an automatic additional five-year penalty for selling drugs on or near a school precinct. Of course, other legislation has been introduced to complement the laws relating to those activities that surround the illicit drug trade. I refer specifically to recently introduced tough legislation on pawnbrokers and second-hand dealers. The Drug Misuse and Trafficking Amendment (Ongoing Dealing) Bill amends the Drug Misuse and Trafficking Act to make it an indictable offence to supply any prohibited drug for financial or material reward on three or more separate occasions during a period of 30 days. The bill provides for a maximum sentence of 20 years imprisonment and substantial fines. Penalties under the present Act relate to quantities, and it has been demonstrated, certainly in my electorate and no doubt throughout New South Wales where there is a heroin problem, that existing legislation has been inadequate.

I take on board the comments of the honourable member for Eastwood when he complimented the Cabramatta police for their marvellous job, through Operation Puccini, in breaking the hold of drug dealers on Cabramatta streets. They have reported record arrests and certainly have made a significant improvement in street drug dealing that has been welcomed by the local community. This legislation will go further to empower police to prevent the same faces returning to the streets to sell drugs and it will alleviate anger within the local community. Recently police have undergone extensive consultation with local community members who threatened vigilante style action because of their dissatisfaction with the powers of the police and courts. That merely indicates a sad and dangerous state of affairs within the community. I am sure that Cabramatta residents will be pleased that this tough new legislation will ensure that Fairfield Local Court no longer has a revolving door and that the little drug dealers on the
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street will not play cat-and-mouse games with the police for much longer. I commend the bill to the House.

Mr KINROSS (Gordon) [9.07 p.m.]: It was interesting to hear the comments of the honourable member for Cabramatta because she was one of those who dissented from the recommendation for safe injecting rooms, or shooting galleries. Yet, she says she is happy for this bill to exclude cannabis and include the 30-day rule for drug dealing, the two matters about which the Opposition spokesperson commented. The important issue, as the honourable member for Eastwood said, is the mutagenic effects of cannabis. I shall not refer to the detail of that, but a substantial body of research shows that use of cannabis, certainly on an ongoing and sustained basis, is of serious concern to health.

Mr Yeadon: They are health issues.

Mr KINROSS: All drugs are health issues. That is why the report of the committee that considered the use of safe injecting rooms, which the Minister for Health asked to be considered, supported the coalition's view. Indeed, the honourable member for Cronulla led the opposition to safe injecting rooms, or shooting galleries. It is almost unprecedented for members of the Labor Party to break ranks, but it has done so in relation to that report and in relation to this important legislation. It may be that some sanity will prevail in relation to including in this legislation a reference to the use of cannabis. Reference was made to the book The Drug Precipice by Athol Moffitt - who in 1986 also wrote a very interesting book entitled A Quarter to Midnight.

The honourable former judge is a constituent of mine and whilst the level of detail has not been provided to me that I believe has been provided to the honourable member for Eastwood, nevertheless I know that the judge holds his view very firmly and is concerned about the general use and proliferation of drugs in the community. I also take issue with the suggestion about increased police numbers. The honourable member for Eastwood clearly demonstrated that there are fewer police than the Carr Labor Government promised, even fewer than were in the Police Service in November last year. The Opposition has proved that Labor lied in relation to that issue. Most police officers would want cannabis included as a prohibited drug in this legislation, because of its prolific and widespread use by young people. As parliamentarians we have to be concerned about the use that the young are making of this drug generally.

On the Mike Gibson radio program this morning, a young man, whose name I cannot recall, said that on the north shore the softer drugs - such as Ecstasy and speed, trips I think they are called - are used, but that the hard stuff is generally used in the inner city. I regard those types of drugs as anything but soft. They are all hard drugs and they all affect one's mental state. Members of the public are concerned about the increased use of drugs in the community. The Opposition believes that the foreshadowed amendments will go a long way towards improving the situation if they include cannabis and exclude the 30-day rule. New section 25A of the Drug Misuse and Trafficking Act 1985 states:

(1) Offence provision
A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.

The Opposition takes issue with the 30-day rule and the exclusion of cannabis. The term "supply" currently has an extended meaning under the Drug Misuse and Trafficking Act, and "sell" is also widely defined at present to include barter, exchange or dealing in, as well as any other act of supply so long as it is for financial or material reward. Late last year or early this year the honourable member for Eastwood flagged the inconsistency between the number of occasions on which drug dealing took place and the quantity involved. He highlighted that the number of occasions on which someone could be in possession of 30 grams of heroin and still fall below the trafficable quantity threshold was ripe for reform. The amendment foreshadowed by the honourable member for Eastwood should be supported by the Government. In relation to the issue of the satisfaction of the jury, new section 25A(3) states:

If, on the trial of a person for an offence under this section, more than 3 occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence.

Although the wording is somewhat complicated, that provision needs to be read in the context of the other provisions, as well as in the context of the reforms to the legislation proposed by the Opposition. I will not traverse the double jeopardy provisions set out in detail in subsection (5) of new section 25A. The consequential amendments to the Confiscation of Proceeds of Crime Act 1989 and the Criminal Assets Recovery Act 1990 are also welcomed. Most people do not believe it is enough to simply impose a stiff sentence on offenders and lock them up. Given that financial gain is invariably
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the motive for drug dealing, they also want the proceeds and profits of such crimes to be confiscated.

Any attempt to strengthen those provisions ought to be supported in order to ensure that the incentive, the motive, and the purpose for drug dealing are removed. Funds so recovered, if not placed in consolidated revenue, could potentially be available to the victims of crime. It is very clear that even if these reforms are included in the bill, drug dealing will continue and the victims of crime should have some recompense against the perpetrators of crime in the community. Item [1] of schedule 2.3 relates to the definition of "drug trafficking offence" in section 6(3) of the Act and inserts a new subsection as follows:

(c1) section 25A (Offence of supplying prohibited drugs on an ongoing basis),

It is also important not to send mixed messages to the community in relation to drugs. The Minister for Health - indeed, health Ministers generally - always seek to encourage young people not to smoke. I well remember a commercial by the late Yul Brynner urging people, "Whatever you do, don't smoke." This legislation will certainly send a mixed message to people that it is not good to smoke but it is all right to possess or deal in cannabis. For that reason alone it is necessary to put in place not only an appropriate level of penalties, but also a good education program to warn children about the dangers of drug use and the possible effects on their bodies. I understand that some personal development courses in secondary schools instruct young people about drug use to a certain extent. That is an important issue.

I finish my contribution on a somewhat personal note - not personal to me but indeed relating to the Labor Party's leader. I should have thought this was an important issue that the Labor Party would consider carefully, because the Premier's brother died from use of drugs, and the drug involved was heroin. But cannabis was also an important drug in that process. I would have thought that the Premier, who is concerned about the use of drugs, would be sympathetic to the concerns of the Opposition about cannabis use generally and that he would be aware of the importance of the 30-day provision. It is important that the Government addresses the general concerns of the Opposition in relation to this matter.

Debate adjourned on motion by Ms Hall.