2016-02-09
Colleen Hartland's speech in parliament in realtion to the Drugs, Poisons and Controlled Substances Amendment Bill 2015 - The Greens are concerned about this bill and the government’s approach to it. The government’s so-called tough-on-crime approach either recreates a range of penalties which are already covered by law, so it is duplication and purely for show, or increases already very high maximum penalties to extremely high maximum penalties, something the court is unlikely to take advantage of and thus it adds nothing to the legislative landscape. I imagine the government believes these new laws are a cheap solution for the government to look like it is tackling ice rather than making the required financial investment in treatment and rehabilitation and expanding the Drug Court approach across Victoria. Worse, some of the new laws risk criminalising people for thinking about committing a crime and criminalising young people unnecessarily.
They are a waste of the courts’ time and limited resources and should be abandoned. The Greens support laws that maintain criminal penalties for trafficking of drugs; we do not support ramping up penalties without an evidence base, without a clear need identified by the courts and without proper consideration of unintended consequences. The Greens understand that we also need to look at the causes and why people are committing these crimes, and if it is due to a drug addiction or disadvantage, we need to ensure that they get proper rehabilitation and interventions to stop repeat offences, particularly children.
I will go through this bill clause by clause 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 harder drugs. Clauses 5 and 6 provide for up to 25 years imprisonment for trafficking or attempting to traffic a drug of dependence to a child at a school or in a public place within 300 metres of a school. Trafficking is possessing for the purposes of selling. Trafficking is selling any quantity, though there are higher penalties for higher quantities. This is a step up from the current laws where a person trafficking to children in any location would go to jail for 20 years — already a very high penalty.
Clause 6 provides for 20 years imprisonment if a person traffics in these areas but 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 is done within 300 metres of a school. I note this law does not take into account whether it is in the middle of the night when there are no children actually in the vicinity.
These new laws do not distinguish between adult and child offenders doing the trafficking, nor do current trafficking laws, so it is up to the court to actually decide the penalty. So a teenager who takes a few grams of marijuana to school to sell to his or her friends could go to jail for 25 years instead of the current 20-year penalty. Given that we already have very harsh penalties of 20 years imprisonment, drug dealing near or in a school would already be considered an aggravating feature that a judge would have to take into account within the existing maximum penalty. It is difficult to see what this amendment adds to the legislative landscape.
In fact data from the Crime Statistics Agency shows that over the past five years between 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 of school grounds being targets of drug dealers and there thus being a need for greater deterrence. In fact these figures show the exact opposite. Of the 2500 schools in Victoria there have been just a few cases of drug dealing each year. So not only is this law not necessary, but the Greens also have concerns with the law’s unintended consequences — that the new law could target children dealing drugs or onselling drugs at school. We know that there are likely to be fewer suspicious or unknown adults hanging around schools due to stranger danger awareness, teacher alertness and parents being on the lookout for adults lurking around schoolgrounds. But the government department has confirmed that the majority of those 7 to 29 people prosecuted per year for trafficking at schools were in fact children themselves. So this new tough-on-crime approach is actually getting tough on child offenders, who will just be onselling a few grams of marijuana that they got from a dealer to their schoolmates.
Teenagers going down the wrong path with drugs need education, welfare, social support and diversionary programs — not to be thrown in jail. The government has argued that the increase in penalty from 20 to 25 years will increase the deterrent. I personally seriously doubt the difference between 20 and 25 years has much effect on a child for whom such periods of time are hard to comprehend. That aside, for such a change to be a deterrent to children dealing at school, children would actually have to be aware of this change in the law, but I have not heard anything about the government rolling out an education program for teenagers in schools. Further, if it was a deterrent it could actually be dangerous. It could mean that more young people seek out drugs in a less safe environment; for example, isolated alleyways behind shops, at dealers’ private homes or in other areas where they are actually at greater risk of harm.
Clause 7 inserts new section 71AD, which provides up to five 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 could constitute the commission of this offence of violence or threat to cause trafficking would not already have been caught, either by the principles of common law or under the new statutory provisions of section 324 of the Crimes Act 1958. Such provisions would see a person charged with the principal offence and liable for a higher maximum penalty than this offence. It is difficult to see why this offence is needed or that it adds to the existing law.
Clause 9 provides for 20 years maximum imprisonment for supplying — not selling — a drug of dependence to a child at a school or in a public place within 30 metres of a school. This 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 supplying drugs to a child at all other locations. There is no evidence base for this increase in penalty. The data from the Crime Statistics Agency has found that over the past decade there have been six years where there were zero offences recorded for the supply of drugs around schools and four years where there was one case of supplying drugs at a school — not an epidemic. Given there are 2500 schools in Victoria this is extremely low, making this five-year increase in penalty ridiculous.
Clause 10 inserts a new section 71E, which provides up to five years jail for possessing without reasonable excuse a document containing information about trafficking or cultivating a drug of dependence. This law applies to children and older adults. This applies to cannabis as well as methamphetamine, heroin and so on. There is uncertainty as to how possession of a document would be interpreted in respect of this clause. There is no definition of ‘possession’ in the bill, and it is subject to common-law definitions. The definition of the document is fairly broad, including anything whatsoever which is marked with any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them. If you look online, there are countless books, websites, documents and YouTube videos on how to grow cannabis, make methamphetamine et cetera. I am advised by the government that the possession of a document does not include viewing something online or even bookmarking a favourite site. So it only applies if you download and save a document onto your computer or copy some text or an image on this topic from the internet into an email or document on your computer. The department was unable to clarify whether saving a hyperlink to a web page on your computer constitutes possessing a document or not.
So if you read it off the computer, it is not a penalty; if you print it, it is a penalty. That does not make sense to me at all. A young person may look up out of curiosity how to grow a cannabis plant, due to watching TV shows like Breaking Bad or Weeds. And remember that there are gardening books in most suburban libraries that will actually give you a history on how to cultivate things like cannabis and poppies et cetera. I understand those libraries will not be banned from having these books, but this information is pretty readily available. If someone copies or downloads that information into your computer, email or social media account that would be subject to up to five years jail. There is no requirement under this law for the child to actually have the intention to grow the cannabis or make ice.
Section 71 of the act has already criminalised possessing a document containing instructions relating to the preparation, cultivation or manufacture of a drug of dependence, but the law specifies that the person must have the intention of using the document for the purpose of cultivating or trafficking in a drug of dependence. This law already carries a penalty of 10 years maximum imprisonment. The difference between section 71A and this new section 71E is that with this new law no intent to use the information to actually cultivate the drug is required, meaning many people who possess this information for no particular reason could be charged under this law.
Clause 13 of this bill does specify that an adjourned bond can be given if the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to cultivating or trafficking in a drug of dependence. This is well and good but really just highlights the heavy-handed and problematic approach this law will bring. If the intention to cultivate is proven, then it is covered by existing law. If no intention is proven, then the court determines whether on the balance of probabilities the person did or did not have an intention to do it. If the court determines they are unlikely to have the intention, they can get to an adjourned bond. This is more likely to be the case, given the court did not have the 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 but just for possessing the information.
However, if the court decides a person is likely to intend to try growing marijuana, for example, they can be given up to five years jail for that possibility, so then they are being criminalised for the likelihood they were thinking about growing cannabis, for example, or even if there is no evidence to prove that that was their intent. That sounds like a very low burden of proof to me for a five-year prison term. It risks criminalising curiosity. This sounds to me to be an absolute waste of the court’s precious time, as many people would have possession of these documents accidentally or incidentally via, as I said, gardening books or otherwise, or simply out of curiosity.
The existing law captures drug manufacturers who have the intention to use the information to cultivate and traffic drugs. I assume there are real targets of such laws. This new offence only serves to capture people who would be curious or experimenting — hardly hardened criminal elements likely to be successful in producing drugs like ice or ecstasy. The biggest problem with this new law is that it does not apply to viewing information online, meaning shrewd drug manufacturers and traffickers can easily find their way around these laws simply by keeping and viewing the instructions online, while hapless young people who are not aware of the laws and have been a bit reckless, as young people sometimes can be — I do have some memory of those years — might be caught up in this.
Clause 10 also creates new section 71F, which provides up to 10 years jail for publishing a document, without reasonable excuse, containing instructions for the trafficking or cultivation of a drug of dependence with the intention that the instructions will be used by another person for the purpose of the trafficking or cultivation of a drug of dependence or knowing or being reckless as to whether the instructions will be used by another person for the purpose of the trafficking or cultivation of a drug of dependence. The bill specifies that it is irrelevant whether the instructions actually work to produce drugs. For the purpose of this section, ‘publish’ includes sell, offer for sale, let on hire, display, distribute and demonstrate. There is no differentiation in penalty or approach between cannabis and other drugs. Children are subject to this law as well as adults, and there is no adjourned bond option in relation to this clause. There are countless websites, blogs and YouTube videos on how to cultivate cannabis and make amphetamines online. These sites are unlikely to be captured under this law, making this new law highly ineffective. With the introduction of this law, savvy drug traffickers will ensure that the instructions for cultivating their drugs are online and the website is registered in a place where it is not illegal to publish this information so that they cannot be prosecuted under this law.
Meanwhile a child who looks up how to grow cannabis and shares a document or a section of a document they have copied with a friend via email, message, a post on Facebook or some other electronic means could face up to 10 years jail. Also some old, turn-of-the-century gardening books — and I have quite a few of these in my library, so I am waiting for them to be confiscated — contain information on cultivating marijuana, so libraries need to watch out as well.
This law risks criminalising curiosity. It is also likely to target drug addicts and disadvantaged persons who do not know the laws, while the professional, shrewd traffickers and criminals — the real people behind drug trafficking — will escape prosecution, as they know how to get around the gaps in this legislation. The government has elected to have the same penalty for being reckless as to whether the instruction will be used by others for trafficking or cultivation purposes, when in other legislation simply being reckless with the information has a lower penalty rate. This means it is more likely to capture people being stupid rather than organised criminals. This law completely fails to keep up with the modern world and effectively target the professionals behind the trafficking of commercial quantities of drugs. Issues around censorship should also come into play with this law. There are a number of TV shows and movies that show the cultivation or trafficking of drugs, including Breaking Bad, Weeds and others. Given this law specifically states that it does not require that the instructions be effective in actually producing the drugs, I think this does raise questions as to whether these shows constitute providing instructions on cultivating a drug of dependence, in which case this would open a can of worms around possessing information and publishing it. While I hope that this would not happen, the potential scope of this new law in terms of censorship seems quite extreme, and the precedent it sets is quite worrying. These laws around possessing and publishing a document should be scrapped, as their potential application is far too wide.
Clause 12 creates new section 72D, which provides for a five-year maximum prison term for permitting the use of premises for the trafficking or cultivation of a drug of dependence. For an offence to be made out under this section the person would have to intentionally permit the use of land or premises for the trafficking or cultivation of a drug of dependence. If such intention were proven, it would be difficult to see how any contact constituting an offence under this section would not be caught by the principal act, in which case a person would be charged with the principal offence, carrying a higher maximum penalty.
Clause 17 of the bill adds new laws in relation to trafficking around schools to the Confiscation Act 1997. The Greens remain concerned about the provisions in the Confiscation Act. We are concerned that there does not need to be a link between the crime and property to have the property confiscated. The government has not produced evidence to show that our confiscation laws at the time were not working when changes were made under the previous Parliament. We are also concerned about the effect of such provisions on the dependants of someone who is involved in serious drug activity. This is because 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 being forfeited if it is their own property from an inheritance and the offender was only living with them at the time. This is a long and technical bill.
In conclusion I would say that the Greens will clearly not be supporting this bill, as we believe it is completely unnecessary and there is no evidence base for the increases in penalties or new penalties created. Worse, this bill could have the unintended consequences of criminalising young people and disadvantaged people unnecessarily while allowing professional traffickers to easily work around these laws, which fail to keep up with modern technology.
The tough-on-crime approach to drugs is an easy sell, but it fails to recognise the international evidence for how to reduce the use and harm of drugs. I am very disappointed that this government has taken this approach. I would have expected a more mature, evidence-based and compassionate approach would have been taken to the issues of addiction and drug taking, because law and order are clearly not working and, as a number of quite senior police officers have said in the past 12 months, we cannot keep arresting our way out of the drug problem. We need to take on a reasonable and rational harm minimisation approach.