I contribute to debate on the Drug Supply Prohibition Order Pilot Scheme Bill 2020.
A week before the 2019 State election, at the height of the public debate around illicit drug use at music festivals, the Premier announced her intention to introduce the legislation we are debating in this Chamber. As the Premier doubled down on a law and order approach to the challenge of illicit drugs, in contrast the Labor Opposition announced that it would establish six detoxification and rehabilitation clinics across New South Wales, including one in Dubbo and one in western Sydney.
That announcement was part of a broader suite of policies designed to continue what Labor has done in Government when it comes to laws on illicit drugs: We listen to the medical and scientific evidence, canvass the research from the medical and legal experts and hear too the stories of those with lived experience of drug use.
Labor strongly argued for another NSW Drug Summit and continues to do so.
A drug summit is the best way to take a holistic approach to the issues around illicit drug use and ensure that a law enforcement approach is balanced with one that understands the value of compassion and the importance of evidence.
The bill before the House today tips the balance even further towards a law and order approach.
The bill establishes a two-year pilot scheme for drug supply prohibition orders in four pilot scheme areas: Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western police districts. A drug supply prohibition order can be made against a person who is 18 years of age or older who has been convicted of a serious drug offence in the past 10 years.
In effect, the order allows a person to be detained and searched without a warrant and for vehicles or properties to be searched. Items may be seized if they are believed to be involved in the production or supply of illicit drugs or used for other illegal purposes.
The orders would be made by magistrates where they are satisfied that the person is likely to engage in the manufacture or supply of a prohibited drug. These orders would be made behind closed doors, and such an order would be in force for 10 years.
The bill establishes an oversight commissioner to assist, guide and manage the process of issuing orders. The oversight commissioner must have the opportunity to make a submission to a magistrate before an order is issued.
The bill defines the "serious drug offence" subject to the orders as broadly encompassing the cultivation of prohibited plants, owning drug manufacture apparatus, or the manufacture or supply of prohibited drugs. The bill ascertains that the orders would not apply if the original offence related to small quantities as defined by the Drug Misuse and Trafficking Act 1985. However, the original definition of a "serious drug offence" as set out in the bill raised concerns for many because it sets an unnecessarily low threshold for issuing a drug supply prohibition order.
The Law Society of New South Wales contends:
As currently drafted, a 19-year-old person, previously convicted as a juvenile, and placed on a community based order for deemed supply of five to six MDMA pills at a festival, could be subject to these extraordinary powers, if a police officer reasonably believes they may be engaging in supply of a prohibited drug.
While a Magistrate may not exercise their discretion to make an order in such circumstances, we consider that the legislation needs to be amended to protect against unintended consequences.
I note that the Legislative Council agreed to amend the definition of a "serious drug offence" to clarify that orders only apply to an amount above an indictable quantity. This will have the effect of clarifying the threshold at which a drug offence is deemed to be serious enough to issue an order, particularly with respect to the cultivation of cannabis plants and the measure of MDMA and other recreational drugs.
I note that the Legislative Council also moved to empower the oversight commissioner to make an application to revoke an order at any time after an order is made. It beggars belief that under the Government's initial approach an order would not be able to be appealed for a period of six months. This is an important amendment that acknowledges the concerns of the Law Society of New South Wales and others that the minimum waiting period to apply for a revocation was deeply unfair.
The Legislative Council also amended the original bill to ensure magistrates, when considering whether to issue an order, must consider factors that may be adverse to the making of that order. This includes:
information that may be adverse to the application for the order, including steps that the eligible person has taken to stop or reduce the risk of the person committing drug-related offences
The amended bill now demands that a magistrate must take these and other factors into account rather than simply giving them the option to do so. It will mean magistrates must take into account the actions a person has taken to rehabilitate and move past their prior conviction.
These agreed amendments go some of the way to resolving issues raised by stakeholders in relation to the bill.
However, I note there are still considerable concerns with the bill, and I urge the Government to consider addressing these concerns.
Labor supported an amendment in the Legislative Council to amend the definition of what constitutes a "serious drug offence" to those committed by persons under the age of 17. Sadly, that amendment was lost.
I again urge the Government to consider how this bill might impact those in the juvenile justice system. In fact, I urge it to consider how it might impact the juvenile justice system itself. As the Hon. Penny Sharpe and others noted in their contributions in the Legislative Council, the juvenile justice system is predicated on the belief that you get a second chance when you turn 18.
I am concerned this pilot sets a really dangerous precedent that says that young people over 18 can continue to be punished for the crimes they committed when they may have been only 10 years old.
The NSW Council for Civil Liberties has said of this provision:
Juvenile offences should be excluded. The inclusion of juvenile offences renders young people open to breaches of their civil liberties for acts committed when they were children. The consideration of past juvenile offences is contrary to the well-established principle that rehabilitation is paramount when sentencing young people.
I urge the Government to contemplate what that means for our understanding of juvenile justice and what it means for the young people who this scheme could impact. The NSW Council for Civil Liberties and others have raised concerns over the length of time in which police can apply for an order. They note:
We are strongly of the view that the 10-year period within which police can apply for an order is too long and places people at risk of being subject to these extraordinary powers for a period that is simply unacceptable. We are also concerned that the lengthy period may also have the unintended impact of interfering with rehabilitation efforts.
Reducing the period in which these orders can be made would go a long way to reducing the unintended consequences of the bill and limit the reach of these orders, and so too would reducing the decade-long period in which an order could remain in place.
Stakeholders also have raised a number of other significant concerns with the process around which an order is made including the fact that it is made behind doors. They raise specific concern that under clause 9 (8) of the bill there is currently no requirement for the subject of an order to be given information about why the order is being made, or the evidence upon which such an order is being made. This is pretty extraordinary and flies in the face of the expectations of most people about the way our justice system operates.
The Law Society of New South Wales states:
This is likely to undermine public confidence in the scheme and in the administration of an impartial justice system in NSW.
It would be better if orders were made in an open court and, as the Law Society notes, there are provisions under existing laws for closed courts and suppression orders that would have the same effect as the secrecy put forward by this bill.
I urge the Government to consider these measures that will reduce the potentially damaging impacts of these orders.
While I appreciate all members in the House are united in our goal to reduce the impact of illicit drug use in our communities, it is critical that we treat this as a health issue.
I reiterate my strong view that politicians are not the experts when it comes to illicit drug policy. In fact, politics has no place whatsoever in how we approach the issue. Invariably, the result is a narrow focus on law and order approaches that perpetuate the failed "war on drugs" and which further entrench the criminalisation of drug use.
Criminal law specialist Ugur Nedim and journalist Paul Gregoire have characterised the bill as:
the Liberal Nationals simply [wanting] to enhance the war on drugs to the point where those once found guilty will always remain guilty.
Others have raised concerns that the bill constitutes a double penalty and sets a dangerous precedent whereby those convicted of a crime are considered to be guilty in perpetuity, or at least for the rather arbitrary period of the next 10 years.
A core tenet of our criminal justice system is the belief that a person who has committed a crime is able to be held accountable for those crimes, incur the consequences, and not reoffend. But this bill presumes recidivism. It is predicated on a notion that a person convicted of a serious drug offence is likely to reoffend and must trade in their civil liberties for a decade.
It is too easy to dehumanise those who are subject to these orders but, as people well know, those who traffic in drugs and misery are people who make a mistake, and they may have to pay the price for a decade.
I share the concern of legal experts that we will lose an important principle at the foundation of our criminal justice system.
I do understand the anguish of families who have lost loved ones to illicit drug use. I have met with many of them and I have heard their stories. I understand the fear and damage that illicit drugs have wrought in many communities. But I reiterate that we cannot merely arrest our way out of this issue and warn that this bill is not the silver bullet that the Government promises.
The Government instead must show real leadership, set aside its ideological obsession and stubbornness and commit to holding a drug summit that brings all the voices to the table and engages people from across government, the not-for-profit sector, the health sector and from the justice sector.
A summit would afford us an opportunity to properly examine all the evidence, find the right mix of responses and take the politics out of drug policy in New South Wales.
It would put an end to the narrow and punitive approach represented in the bill before the House today.