Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014

Mr STEPHEN JONES (Throsby) (15:54): The bill before the House is the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. The 'other measures' go to firearms control and related matters— and I will have something to say about that. We support the legislation. We have some deep concerns about the mandatory sentencing provisions within the legislation, and I will have something to say about that as well. Like previous speakers in this debate, I applaud action which is directed towards dealing with the terrible scourge of drug addiction and all the social ills that that causes. However, I have deep concerns about the capacity of the criminal law system to do all that is necessary, particularly in the area of prevention and treatment, for those who are suffering from drug addiction.

The measures within the bill ban psychoactive substances that are not otherwise regulated or banned. The United Nations Office of Drug and Crime uses the term 'new psychoactive substances' to refer to substances of abuse, either in pure or preparation form, which are not otherwise controlled by the 1961 Single Convention on Narcotic Drugs or the 1971 Convention on Psychotropic Substances. A sense of the scale of the issue that we are dealing with here can be seen by looking at those drugs that are currently proscribed by legislation—that is, those drugs which it is a crime to use illicitly, to trade or to exchange. In mid-2012 the number of these new psychoactive substances reported by the United Nations body exceeded the number of substances that were under international control—251 to 234—for the first time ever. That number rose over the next 18 months by around 38 per cent. Why is this happening? Quite simply, as soon as legislatures around the world move to criminalise a substance, canny marketers and chemists are able to bring new substances onto the market which mimic the psychoactive effect of the proscribed drugs and to sell them to their unwitting clients. Therefore it is necessary to take a different approach, at least a different criminal law approach, to these substances.

Labor supports the way the government has approached this issue in this bill. We think that it is a sensible approach. We know that we have a terrible problem with psychoactive drugs within our community. I listened carefully to the member for Durack as she spoke about the impact of psychoactive drugs on her community. I share those concerns. We have the same problems within the area of Illawarra. I will return to this issue in a moment, but I also want to say something regarding the firearms offences, the penalties for which are increased by this legislation.

We support the strengthening of firearms penalties, but I have deep reservations about the provisions within this bill that go to mandatory minimum sentencing. It is uncommon in Australian law. Although some jurisdictions are getting more active in this space—notably in New South Wales—we have deep concerns with this aspect of the bill. The shadow minister for justice has indicated this in his reply to the second reading speech. I want to go through some of the reasons why we have concerns about the mandatory minimum sentencing.

On 30 June 2011, the president of the Law Council of Australia, Mr Alex Ward, had this to say about the idea of mandatory sentencing:

Mandatory sentencing laws are the antithesis of fairness and have no place in the Australian criminal justice system.

He went on to say that:

Mandatory sentencing reduces the incentive for offenders to plead guilty and can lead to an increased case load for the courts.

All of that is true and it is borne out by the practice.

What mandatory sentencing does—as the former director of public prosecutions, Nick Cowdery, has pointed out—is it fetters the judicial discretion that is needed to provide justice within the context of each individual case. Parliament, in fact, is usurping the judicial discretion by introducing mandatory minimum sentencing. It actually sends, as the former DPP of New South Wales said, a vote of no-confidence from the parliament to the judiciary.

It also has the problem of undermining the system of guilty pleas upon which the criminal justice system relies. This is a point that has also been made by the Law Council. What that means is this: if a person is charged with a crime knowing that they are likely to be found guilty of that crime on the evidence that is before them, they are more likely than not to fight that tooth and nail if there is a mandatory minimum sentence in respect of that crime. That is as opposed to putting their hands up, as it were, and entering into a plea bargain. For this reason, it is likely to lead to more complex and hotly contested trials, in which families and witnesses have to return time and time again to court. It will undoubtedly lead to more costly, lengthy trials where that need not be the case.

From my own region and the University of Wollongong, Dr Quilter has argued that mandatory sentencing requirements do not remove discretion from sentencing but rather displace it from judges to police and prosecutors. She points out that:

Studies of mandatory sentencing indicate that ‘discretion’ is not removed from the system; rather it is displaced often onto police and prosecutors, and significantly so in the area of charging and charge negotiation.

The prosecuting authorities, and in particular the police, often have lots of options available to them as to the charges that they bring against an alleged perpetrator.

What Dr Quilter points out is that mandatory sentencing actually shifts the discretion to the police officers involved or the prosecuting authorities involved where it should probably belong with the judicial authorities. Once displaced onto the police and prosecutors, such decisions become unreviewable. This is to be contrasted with sentences that are determined by a judge, which are reviewable on appeal. Whilst we support the provisions in the bill, which go to the issue of firearms control, we have deep concerns about the mandatory sentencing provisions.

I return to the issue of the psychoactive substances, which is the main subject within the bill. It is most important provision, to my mind, within this bill. When a new drug appears on the streets, as I have asserted, it is not often captured by the existing legal definitions of existing illicit drugs. Organised criminals ran sophisticated operations and there is evidence emerging that they are now designing chemical substances to evade the existing legal definitions of illicit drugs.

Schedule 1 of this bill will mean that future psychoactive drugs that are not already defined in the Criminal Code will not be able to be imported while the government assesses the safety or harms associated with those substances. We say it is a sensible approach. We actually did a lot of work on this particular area where we were in government and we are proud of that fact. The existing legal framework on psychoactive drugs remains in place and this bill simply closes a legal loophole that previously allowed drugs that mimicked the psychoactive effects of illicit drugs to be imported until the government was able to assess and legislate to ban them, if necessary.

I will use this opportunity to say a few things about crystal methamphetamine. It is a scourge within my community in the Illawarra. I have spent the last couple of months travelling throughout rural and regional Victoria, New South Wales and other parts of the country. I can say that in each and every regional town that I have visited one of the first or second issues that they have raised with me, when I asked about the public health issues impacting on that community, was the issue of crystal meth. It is ruining lives, it is ruining communities and it is something that requires a response from all levels of government.

The National Drug and Alcohol Research Centre also found that the use of crystal methamphetamine or ice amongst a sample of regular injecting drug users has increased by 39 per cent between 2010 to 2011. That is an increase of 39 per cent. There has also been evidence showing that the number of seizures at the borders of amphetamine substances has skyrocketed over the last year. The level of purity is increasing and the number of ambulance responses to crystal meth cases is skyrocketing. Australia-wide there were more than 20,000 medical episodes where methamphetamine was a principal drug concerned between 2012 and 2013.

The statistics are alarming. It is not something that we can continue to ignore. As I have said, it is not something that can be dealt with by one jurisdiction alone nor is it something that can be dealt with purely within the purview of the criminal justice system. Based on the consultations that I have been engaged in throughout regional communities in Australia, we need to deal with the social issues that are leading to young people experimenting with illicit drugs. With crystal meth the length of time between experimentation and addiction is very short indeed, so we need to be dealing with the issues which are causing kids to experiment with crystal meth.

I was up in Moree just late last week and I was talking with leaders within the Aboriginal community there. They put it quite succinctly: when there is no hope within the community, when there is no hope of a job, when you are dealing with the lingering burden of decades of discrimination and you do not think that within your lifetime there is any prospect that things are going to change, then drugs like crystal meth become an attractive alternative. Unless we are able to deal with some of the social determinants that are leading kids in communities like Moree and communities right throughout the country—I do not want to point to one town because I have visited dozens—unless we are dealing with the social issues that are leading to drug use, we will fail.

We do need a criminal law response such as the bill before the House. There is no argument about that. We do need a criminal law response because, quite apart from the punitive effects of the criminal law, when the law says that this is an illicit substance it sends an important rhetorical message throughout the community that something is not good.

In addition to that, and in addition to dealing with the social determinants of drug use, we also need to be doing more in terms of treatment and rehabilitation of people with drug addiction. It is simply not enough to be waving the criminal law as a response to these problems and saying that if we just get tough on these crimes somehow that is magically going to make it go away. Quite simply, it will not; all experience bears that point out.

So, using criminal law, dealing with the social issues that are leading to drug addiction and ensuring that we are investing more, across all tiers of government, in rehabilitation to deal with those people who have been unfortunate enough to fall into a life of addiction must be part of a joined-up response between all tiers of government. And we must work with the community to ensure that we can address that issue. That, in a nutshell, is at the heart of the legislation before the House. We support it with reservations.