Controlled substances (simple possession offences) amendment bill

In Parliament - Tuesday, 13 October 2015

Mr DULUK (Davenport) (11:53:51): I also rise to speak on the Controlled Substances (Simple Possession Offences) Amendment Bill. The drug diversion initiative plays an integral role in helping people with simple possession offences. Offenders are able to address their drug habits with assistance from health professionals rather than entering the costly criminal justice system. The scheme is underpinned by a notion that personal drug use is more appropriately and effectively addressed with a health response rather than with a criminal justice response. SA Police, SA Health and non-government service providers play an important role in ensuring the effectiveness of this program. Drug diversion schemes for simple possession of illicit substances are considered a sensible policy response for first-time offenders.

I believe the proposed amendment under this bill, whilst minor, is also sensible, as echoed by the member for Hartley. This bill, which the opposition supports, would stop a person charged with a serious drug offence from also being diverted for a simple possession offence that has arisen at the same time. As it stands, someone charged with a serious drug offence—such as manufacturing or trafficking—who also happens to be carrying a personal quantity of drugs, will be caught up in the drug diversion process. A diversion under these circumstances is a waste of time, given that an offender—be it a manufacturer or a trafficker—is already caught up in the criminal justice system and is clearly an individual who is at a point in their life where a simple drug diversion program will not be of any assistance.I believe there is also a community standard that requires those who are trafficking or manufacturing drugs to be dealt with within the criminal justice system. It is also important that those participating in the program use it for the purpose it was intended, as an education program, and as a health response and a program that educates people not to be involved in drugs and with those peddling drugs. A drug division program should not be exploited as an unlimited, never-ending opportunity to avoid genuine punishment and justice.

A 2012 report by South Australia's Attorney-General's Department, 'Ten Years of the South Australian Police Drug Diversion Initiative', found that around one-quarter of the 13,627 individuals diverted over the course of the PDDI had been diverted more than once, 15 per cent had been diverted twice, 5 per cent had been diverted three times, and 4 per cent diverted four or more times. The maximum number of diversions that one person received was 32. That is clearly a shortcoming in the program; I suspect that an offender who has been through the program 32 times is probably not taking it seriously and should face the full force of the law.

We need to ensure that people who perpetually make the same choice, the wrong choice, are not able to repeatedly use the government's diversion program to avoid the courts and criminal convictions. It is our responsibility to ensure that the system cannot be manipulated. As the member for Stuart noted in his contribution to this debate, it is not sensible that the drug diversion system can be applied to a person an unlimited number of times, and I support the amendments previously proposed by the member for Stuart in similar proposed legislation.

Someone who has been diverted once, then twice, should not be able to divert a third time. They should go before the magistrate. That is not to say that going to court means going to gaol, but it means that there is an expectation of what society deems to be appropriate. It would be at the magistrate's discretion, and diversion would still be an option if the magistrate thought it appropriate for repeat offenders.

The bill introduced previously by the member for Stuart would have ensured a decisive approach that offenders would face a court on the third offence. It would have removed the unlimited character of the current legislation. Unfortunately, the government elected to vote against that bill but it did not offer any amendments, and the government did not make an effort to work with the opposition on the legislation. Instead, the government committed to introduce its own proposal into parliament, an alternative proposal that this government claimed would 'enable the prosecution of offenders who do not properly comply with a diversion process or who are not making genuine efforts to get off drugs', as stated by the member for Taylor in her contribution in 2014.

Despite this undertaking, the government bill before us today serves a different purpose and has, in my view, too narrow a focus. It only stops an offender charged with a serious drug offence from being diverted for a concurrent simple possession offence. It does not provide a legislative response to the ability for an offender to be diverted an unlimited number of times.

I do welcome the administrative changes implemented by Drugs and Alcohol Services SA to the procedures for the drug diversion initiative. These changes have already been detailed in the house by the member for Morialta. The essence of the changes means that a person who has been diverted under the scheme more than twice in the previous 24 months will be required to enter into an undertaking. It is a slight but worthy change; however, the government's decision to use an administrative measure does not provide any real certainty to South Australians. Administrative guidelines can be changed at any time.

I conclude by reiterating my support for the current bill, but note that I also support the view that on the third diversion the offender should face the magistrate. I will watch the application of the new administrative approach with much interest.