21 November 2018
(Bills - Second Reading Debate, 20 November 2018, Legislative Assembly, NSW Parliament House)
I strongly oppose the Community Protection Legislation Amendment Bill. I will focus my contribution on the new drug related offence proposed in the bill which is completely contrary to harm minimisation and evidence based drugs policies and will have no safety benefits for drug users whatsoever.
The bill creates a new criminal offence for supplying a prohibited drug for a financial or material gain if someone who takes the drug dies from it. The drug must have been self-administered and the supplier will have had to have known or ought reasonably to have known that supplying the drug would expose a person to a significant risk of death. The maximum penalty will be 20 years in prison.
This is very dangerous response to recent deaths of young people associated with taking drugs at music festivals. It may look tough but it will not protect anyone. We cannot arrest our way out of this problem and the continuous cycle of inventing more and more new offences that eventually put anyone associated with drug use behind bars is causing significant harm.
The bill will put low level dealers who deal drugs because they use drugs in prison for most of their life while having no impact on the underground criminal syndicates that traffic and manufacture illegal substances for substantial profit or the growing demand for mind altering substances.
Last year, with my colleagues on the NSW Parliamentary Cross-Party Harm Minimisation Roundtable we held a Harm Minimisation Summit with health workers, academics and legal experts. We all agreed that the War on Drugs is only causing harm and that a new approach is urgently needed.
A paramedic who attended the summit told us of how common it is for young people to leave a friend after they have called an ambulance for them because they are worried about being questioned about what drugs they took and where they got them from. As a result paramedics may not be able to find the person who needs immediate medical attention.
We discussed how sniffer dogs at festivals encourage drug users to take higher doses, because if they stagger their consumption, they will have to carry the rest of their substances in pockets or bags and risk being detected by dogs followed by court, legal costs and potentially a criminal conviction.
Drug and alcohol workers also stressed how the criminal approach to drug use stops people who develop a drug problem from getting help because of the stigma and fear of criminal sanctions.
These are just some examples of how law and order responses to illegal drug use make people unsafe and this bill continues that tradition. People who take drugs usually get them from people in their social network. Their dealer is likely to be a friend or relative and is often likely to take the same drugs often at the same places together. They may make a profit but it’s not necessarily a lucrative operation – the real earnings happen up the chain of command. But this friend or relative could be held responsible for a death they did not personally cause and end up in prison for 20 years. The friends they supplied to will try to protect them from this outcome and that may put them or others at risk if someone gets sick because people will be scared to call an ambulance.
Getting drugs from a friend or a relative who takes the same drugs is likely to be safer than soliciting them on the street or in clubs or festivals. Increasing the risks for low level dealers will not change demand for drugs but it could redirect young people to get their drugs in different ways such as from hard-core criminals and faceless strangers who will have few commercial risks from selling a bad batch.
A lot has been said about recreational drug users, but these laws will also capture people with serious drug addiction problems – people who deal as part of their addition and their need to repay their own suppliers. They are already disadvantaged and may end up incarcerated for most of their lives if something goes wrong with the drugs they supply.
From a legal perspective, the proposed new offence is at odds with a fundamental principal that links responsibility for death with causation: there is a common law concept that a person must be held responsible for a death that they did not cause. I understand that this bill’s disregard for this principle is unprecedented in criminal law in Australia and much of the world.
A person will be held responsible for the personal and free actions and decisions of someone who chose to buy drugs and chose to take them. When the only intention of a dealer was to supply drugs, they could be punished for up to 20 years in prison essentially for homicide – this is equivalent to penalties for violent actions done with intent.
Someone who supplies drugs to their friend or relative may be held responsible for their death without having had any knowledge of unexpected risk factors that could have contributed to the death such as contamination, concentration, allergies or consumption with alcohol or other drugs.
In the vast majority of cases, the person who takes the drug has the same knowledge of the risks involved – that is, they would have known or ought to have known – as the person who supplied them.
Because a person who takes drugs is making a voluntary action, the law has generally considered that suppliers do not have a duty of care. This is reflected in the decision of Burns vs The Queen where the High Court determined that the nature of supplying drugs lacks responsibility.
If the government wants to argue that a low level dealer who supplies a drug that they did not manufacture or traffic into the country is responsible for any death that happens by someone who freely buys the drug from them and freely takes it on their own, then I think it should start to look at its own responsibility in this matter.
Illegal substances are dangerous because we don’t know what is in them. If the government permitted pill testing, people could access a quick toxicology report about the makeup of their drugs and make an informed decision on whether or not to take it. It won’t guarantee safety, but it helps inform people about drugs and drug taking. The government cannot deny that telling people that a drug they intend to take has a dangerously high concentration or poisonous contaminants could change their behaviour and discourage them from taking thta substance. Pill testing also provides an opportunity to educate people and to link them to services. We saw good results for pill testing at the Groovin the Moo Festival in Canberra this year and pill testing has been successfully conducted in European nations including Sweden, Switzerland, Austria, Germany, Spain and France.
The claim that pill testing encourages drug use is naïve and out of touch. Demand for drugs continues to grow in this zero-tolerance environment. The War on Drugs is a failure and we need to do something else to keep people safe and to stop choking our criminal justice system with drug users and low level dealers.
Portugal decriminalised recreational drug use in 2001 with even the possession of hard drugs attracting a small fine and referral to a treatment program. Drug use has not soared as a result, but overdose deaths, problematic drug use, drug related harms, drug related HIV, the burden on the criminal justice system and the social costs of responding to drugs have all reduced. The use of legal highs is lower than any other European country. Since the reforms, police in Portugal report that they have been able to refocus attention on the upper end of the market. Meanwhile in Australia, the overdose death rate is rising and 20 times higher than in Portugal.
Last month the Uniting Church and Uniting, backed by a coalition of 60 organisations of health workers and legal professionals launched a campaign for the decriminalisation of personal use of illegal drugs called Fair Treatment. I attended the launch with my roundtable colleagues Jo Haylen the Member for Summer Hill, Shayne Mallard MLC and Cate Faerhmann MLC. We support their call and will continue to work towards harm minimisation and for a comprehensive drug summit that brings together stakeholders and decision makers like the 1999 summit that led to the life-saving Medically Supervised Injecting Room in Kings Cross.
While the bill represents a phenomenal change in our legal system with far reaching impacts, there has been no consultation with drug and alcohol stakeholders or legal practitioners. It is being rushed through in the last week of Parliament with no evidence to show it will work. I understand that similar provisions exist in 20 states in the U.S. This is nothing to be proud of as it is well documented that people with substance abuse and addition problems are crowding American prisons.
The bill is contrary to expert advice that to keep people safe, we need to scale back the criminal approach to drugs.
I again implore the government (and opposition) to stop the empty talk about being tough and start listening to the experts and move towards decriminalisation of personal use and the introduction of pill testing.
I oppose the bill.