Second Reading
The Hon. MATTHEW MASON-COX (Parliamentary Secretary) [4.27 p.m.], on behalf of the Hon. Michael Gallacher: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
I am pleased to introduce the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013.
This bill will prohibit the supply, manufacture and advertising of synthetic drugs or psychoactive substances in New South Wales.
It will also make it an offence to manufacture, supply or possess a substance listed on schedule 9 of the Commonwealth Poisons Standard list.
The Liberals and Nationals Government laws represent a major shift in the approach to drug enforcement legislation in Australia.
It will help to put our police on the front foot and stop them having to play catch-up with criminals over the legality of newly emerging drugs on our streets.
In the past, specific drugs were banned as a reaction to their emergence, and only after they had been identified and tested.
This bill will instead place a total ban on all psychoactive substances, subject to appropriate exemptions which I will explain in more detail shortly.
New South Wales will move to a multi-layered response to psychoactive substances and none should fall through the net.
First, the ground breaking new laws will ban all psychoactive substances as well as those that are yet to be developed.
Secondly, the bill will introduce an offence for supply, manufacture and possession of schedule 9 prohibited substances on the Commonwealth Poisons Standard list.
Finally, by retaining the existing laws which already prohibit specific drugs based on their chemical compound, it also allows the Government response to emerging drugs to be escalated once the specific psychoactive substances are identified and their associated harms and criminality assessed.
These identified and assessed substances can then be added to schedule 1 of the Drug Misuse and Trafficking Act 1985 as a "prohibited drug" with significantly higher penalties attached to them based on the quantity of the drug involved.
This bill was developed by an Interdepartmental Committee formed after the tabling of a Parliamentary Committee Inquiry Report into Synthetic Drugs.
The Committee was chaired by NSW Fair Trading and included representatives from the Department of Premier and Cabinet, Ministry of Health, the Forensic and Analytical Science Service, the NSW Police Force, Ministry of Police and Emergency Services and the Department of Attorney General and Justice.
In February 2012, the New South Wales Parliament Legal Affairs Committee commenced an inquiry into issues concerning synthetic drugs (psychoactive substances).
On 30 May 2013 this year, following extensive consultation, the committee tabled its Report: Law Reform Issues Regarding Synthetic Drugs.
The report made 13 recommendations to the New South Wales Government which highlighted the need to reform the law to more effectively prohibit these new psychoactive substances.
Just days later—10 days later on 9 June—as the Minister for Fair Trading, I imposed an interim 60-day product safety ban under the Australian Consumer Law.
The ban prohibited the sale, supply or possession in trade and commerce of 19 named synthetic drug products.
The ban covered equivalent goods and anything represented as an equivalent and included measures to prevent suppliers changing product names.
The Liberal-Nationals Government then requested that the Federal Government impose a permanent national ban on these damaging drugs.
Nine days later, on 18 June, the Federal Government instead announced a national interim product safety ban for 60 days, publicly stating that the ban could be extended for up to 120 days.
The Federal ban applied to the same 19 named products and their equivalents as identified in New South Wales as well as the list of prohibited substances in schedule 9 of the Commonwealth Standard for the Uniform Scheduling of Medicines and Poisons.
On 11 June, in support of the interim ban, NSW Fair Trading commenced its largest ever compliance program.
NSW Fair Trading inspectors visited over 1,000 retailers identified as places where synthetic drugs might be sold and they provided these retailers with information on the ban, and their responsibilities.
Sixty-five retailers admitted to selling or having possession of drugs which were subject to the ban.
Since the commencement of the ban, the retail sale of synthetic drugs has dried up.
NSW Fair Trading has found only four retailers continuing to sell the banned products and is currently determining what action to take against them.
Newcastle Police reported between January and June this year an average of 26 incidents each month of severe behavioural disturbances attributed to synthetic drugs but following the interim ban this has dropped to an average of just two incidents per month.
Preliminary Ministry of Health data shows emergency department presentations linked to synthetic drugs has dropped, with an average of 75 presentations per month between March and June 2013 compared to only 39 in July 2013.
It is clear from these initial statistics that these interim product safety bans have worked.
Synthetic drugs are no longer easy to buy in New South Wales and there is now significantly more public awareness of their dangers.
However, interim bans cannot be used to permanently prohibit these dangerous drugs. Even the parliamentary committee recommended that they be used as an interim measure until a drug could be identified and appropriately banned.
In the absence of a permanent national product safety ban, the New South Wales Government has decided to act by introducing the most wide-reaching synthetic drug laws in Australia.
I now turn to explain the detail of the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013.
Schedule 1 [4] of the bill creates new offences of manufacturing, supplying, or possessing schedule 9 substances. Schedule 9 of the Commonwealth Poisons Standard contains a list of prohibited substances which may only be used for research purposes.
Most of the substances listed in schedule 9 have already been prohibited in New South Wales as specific entries in schedule 1 of the Drug Misuse and Trafficking Act 1985.
However, the new offences will ensure that where a substance is listed by the Commonwealth in schedule 9, but its risks and appropriate quantities have not sufficiently been evaluated to allow prescription under schedule 1 of the Drug Misuse and Trafficking Act 1985, it can still be controlled in New South Wales.
The supply or manufacture of a schedule 9 substance will carry penalties of 20 penalty units, two years imprisonment, or both.
Possession will carry the same monetary penalty, and the possibility of up to 12 months imprisonment.
Schedule 1 [5] of the bill creates a new part 2C dealing with psychoactive substances.
"Psychoactive substance" is defined as any substance which, when consumed by a person, has a psychoactive effect.
Both "consumption" and "psychoactive effect" are defined in the Act and the definitions are very broad, to ensure that there are no gaps, or ways around this ban.
"Consumption" includes ingestion, injection, inhalation, smoking, and any other means of introducing a psychoactive substance into any part of the human body.
"Psychoactive effect" means the stimulation or depression of the central nervous system of the person, resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or causing a state of dependence, including physical or psychological addiction.
As I said, this definition is intentionally broad and is intended to capture products that affect the central nervous system.
It requires that psychoactive effect, however, to have some significance. This means it does not capture a product that may make you feel good when you eat it, but does not have a significant effect on your central nervous system.
The bill creates a new offence under the proposed section 36ZF of manufacturing or supplying a psychoactive substance, knowing or being reckless as to whether it is being supplied or acquired for human consumption.
The offences carry maximum penalties of 20 penalty units, two years imprisonment, or both.
The element of "knowledge or recklessness as to whether the substance will be consumed by a person" is important, as there are substances which have lawful uses, but can have psychoactive effects when misused. These instances will turn on their facts.
In determining whether a person knew or was reckless as to whether a substance was being acquired or supplied for human consumption, the bill provides in the proposed subsection 36ZF (4) that a court may have regard to any advertising matter published or displayed by the person.
It also provides for a court to have regard to any usage instruction concerning the substance by the person, which indicates that the substance has a psychoactive effect, or is similar in some way to a prohibited drug.
This provision will have a wide application as "publish" is defined in the bill to include distribute, disseminate, circulate, exhibit and cause or permit to be published. It includes publication over the internet.
The provision also extends to any advertising displayed by the person and representations made by the person prior to the commencement of the new offence. This ensures that people cannot circumvent these laws by ceasing advertising activities, and feigning ignorance as to the purpose for which the substance was being bought.
The bill also creates a new offence under the proposed section 36ZG of publishing or displaying in any way, an advertisement, knowing or being reckless as to whether the advertisement promotes the consumption, sale, or supply of a substance for its psychoactive effects, and providing information on where the substance may be acquired.
This offence also carries a maximum penalty of 20 penalty units, two years imprisonment, or both. This offence does not require evidence that the advertised good has a psychoactive effect—it simply requires evidence that it was put forward as having that effect.
Schedule 1 [6] of the bill also provides that where a substance which is not psychoactive is represented as being a psychoactive substance, it will be taken to be a psychoactive substance for the purposes of the Act and regulations.
This is consistent with existing provisions in the Drug Misuse and Trafficking Act 1985, under which a person who sells a substance representing it as a prohibited drug can be prosecuted as if the substance were that prohibited drug, regardless of the actual identity of the substance.
The above offences represent a significant shift in drug enforcement.
They seek to prohibit the sale of all psychoactive substances, both existing, and those yet to be developed, rather than prohibiting specific substances by prescription.
Combined with the broad definitions, this means that exemptions from the offences are required to ensure that legitimate psychoactive substances are not inadvertently prohibited.
It also exempts substances that, whilst illegitimate, are more appropriately dealt with elsewhere.
First, the bill exempts drugs which are already prohibited.
It exempts drugs listed under schedule 1 of the Drug Misuse and Trafficking Act 1985, as well as precursor chemicals prescribed in the Regulation to that Act. This is to ensure there is no confusion as to which provision offenders ought to be prosecuted under.
Similarly, the bill exempts poisons, restricted substances and drugs of addiction regulated under the Poisons and Therapeutic Goods Act 1966, and controlled drugs, precursors, and plants under Commonwealth legislation.
As a large range of pharmaceuticals have psychoactive effects, the bill exempts therapeutic goods which are required to be listed on the Australian Register of Therapeutic Goods, or therapeutic goods which are specifically exempt from being listed on that register under the Commonwealth Therapeutic Goods Act 1989.
The bill also exempts substances provided by health practitioners in the course of providing a health service.
This will not mean that health practitioners will have a blank cheque to give out psychoactive substances, as if they were to provide such a substance for a non-therapeutic purpose, they could no longer be said to be providing a health service under the Act.
The bill also creates exemptions for "food" within the meaning of the Food Act 2003.
Substances such as caffeine are psychoactive, and even sugar can sometimes lead to a physical or psychological state of dependence.
Food is, as we all know, something that people consume as nourishment, and the Food Act has an inclusive definition to make sure that Act has wide coverage and regulates most things people eat and drink.
This exemption will mean that things such as food additives will not be inadvertently captured.
It is not the intention of the legislation to capture low risk substances that do not have significant psychoactive effects.
As I have already noted, this is reflected in the definition of "psychoactive effect", which requires a significant change to a person's perception, mood, and thoughts.
The bill also exempts psychoactive substances which have a long established status as legal products, whether for all consumers or just adults such as alcohol, tobacco, and herbal products.
While the adverse health impacts of alcohol and tobacco are widely documented, the legislation acknowledges that their use is widely accepted by society, and they are specifically excluded from the operation of the new offences.
In relation to herbal products, a market has existed for some years for 100 per cent natural herbal products, which are not prohibited under existing legislation, and might be marketed as relaxing teas or sleeping aids.
While some herbal products may or may not have mild psychoactive effects, it is not intended to prohibit such products, particularly as the very same herbs are often sold as herbal remedies in health food stores and supermarkets.
If any concerns arise over the potential harms of such products, they can be listed in schedule 1 of the Drug Misuse and Trafficking Act 1985 as a prohibited drug.
These exemptions come with a proviso. It states that the exemptions will not apply if prohibited psychoactive substances have been added to a substance which would otherwise be exempt.
This will ensure that sellers cannot circumvent the prohibitions, for example, by adding a synthetic cannabinoid to a natural herbal product, regardless of the quantities involved.
Any addition will mean the exempt product will become a prohibited product. The breadth of the prohibition on psychoactive substances may give rise to concerns that, despite the numerous targeted exemptions, benign products could be captured.
For example, a cosmetic product which claims to improve your mood could be construed as a representation that the product has a psychoactive effect.
As I have already said, however, the definition of "psychoactive effect" requires a significant change to a person's mood or perception, and it is not intended to capture such marketing claims.
Ultimately, the NSW Police Force will have discretion on how the new offences will be enforced.
Should any substances be inadvertently captured, the bill also includes a regulation-making power which allows additional substances to be exempted.
Schedule 1 [8] of the bill amends the analogue provision contained in schedule 1 of the Drug Misuse and Trafficking Act 1985.
Under the analogue provision, where a substance that is not a prohibited drug has psychotropic properties, and is structurally similar to a prohibited drug in specified ways, it is treated as a prohibited drug for the purpose of the Act.
The Parliamentary Committee's Report on Law Reform Issues Regarding Synthetic Drugs recommended the removal of the requirement that the substance has psychotropic properties to simplify the requirements due to the difficulties faced by law enforcement officers and the technical and subjective nature of the provisions.
The bill adopts the Committee's recommendation, to reduce any difficulties in the prosecution of offences under the analogue provisions.
Schedule 2 of the bill makes amendments to the Poisons and Therapeutic Goods Act 1966.
Schedule 2 [3] adopts schedule 9 of the Poisons Standard into the New South Wales Act.
This adoption is then picked up in the new offence in the Drug Misuse and Trafficking Act 1985, which I have already outlined.
Schedule 2 [5] of the bill provides that the Director General of the Department of Health may authorise a person or class of persons to manufacture, possess, use or supply a schedule 9 substance for medical or scientific research, analysis, teaching or training purposes or for industrial or commercial purposes.
It will be a defence to the possession, manufacture, and supply offences for schedule 9 substances under the Drug Misuse and Trafficking Act 1985 that there was such an authorisation in place.
This bill is a vital tool to ensure that these synthetic drugs, or psychoactive substances, are illegal, cannot be sold in New South Wales and cannot be advertised in any way.
The New South Wales Government has so far successfully removed these products from retail shelves using product safety bans but wants to make sure these dangerous substances marketed as "legal highs" cannot return to our shelves and are outlawed across our community. I commend the bill to the House.
The Hon. SOPHIE COTSIS [4.28 p.m.]: I lead for the Opposition in debate on the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 and state from the outset that the Opposition will support this bill. My colleague Ms Tanya Mihailuk, shadow Minister for Fair Trading, had carriage of this bill in the other place. This bill seeks to close loopholes that some people have sought to exploit so that they can sell dangerous substances that are similar to substances already banned by law. The approach of those making and selling synthetic drugs is too clever by half. The manufacture and sale of synthetic drugs clearly represents a deliberate attempt to evade well-established legal controls on certain substances. This bill takes necessary steps to reinforce these controls and prevent the continued sale of dangerous substances.
Members may be aware of the tragic death of Henry Kwan in June this year. Mr Kwan jumped to his death from a balcony in Killara after taking a synthetic drug which he believed to be lysergic acid diethylamide [LSD]. I agree with the views that have been expressed by other members that Mr Kwan's death was tragic and shocking. Mr Kwan's death raised awareness of the proliferation of synthetic drugs and the potential risks that they pose to consumers.
In February 2012, the New South Wales Parliament's Legal Affairs Committee commenced an inquiry into synthetic drugs and psychoactive substances. On 30 May this year the committee tabled its report entitled, "Law Reform Issues Regarding Synthetic Drugs", which includes 13 recommendations. The committee suggested reforms to provide clarity for the public, retailers, police and prosecutors about the status of synthetic drugs in New South Wales. Further, the committee found that the current approach of adding new drugs by regulation to the Drug Misuse and Trafficking Act 1985 was insufficient because synthetic drug producers can adapt the chemical composition of synthetic drugs to evade specific regulatory bans. I am pleased that this bill responds to the committee's recommendations. Currently, drugs and their analogues can be banned only by listing known substances in the legislation when they are identified. This bill amends the Drug Misuse and Trafficking Act 1985 to prohibit the manufacture, supply, sale and advertising of psychoactive substances, and to remove the requirement for analogues of prohibited drugs to have psychotropic properties.
The bill also amends the Poisons and Therapeutic Goods Act 1996 with respect to the addition of further substances to the Poisons List. The bill will amend the Poisons and Therapeutic Goods Act 1996 to provide for the addition of a ninth schedule to the Poisons List. This schedule will contain the substances in the current Poisons Standard within the meaning of part 6-3, Scheduling of Substances, of the Commonwealth Therapeutic Goods Act 1989. Further, this bill will amend the Drug Misuse and Trafficking Act 1985 to prohibit the possession, manufacture and production of schedule 9 substances other than prohibited drugs, unless authorised under the Poisons Act. This bill also will amend the Drug Misuse and Trafficking Act 1985 to prohibit the manufacture or supply of a psychoactive substance for human consumption and prohibit the publication or display of an advertisement that promotes the consumption or sale of a substance for its psychoactive effects or which provides information on how such substances might be acquired.
This bill will further amend the Drug Misuse and Trafficking Act 1985 to remove the requirement of determining whether a substance has psychotropic properties in order to demonstrate that the substance is an analogue of a prohibited drug. I note the efforts of the former Federal Government to address the problem of synthetic drugs. On 18 June 2013, the former Federal Labor Government introduced a national interim ban on synthetic drugs. The purpose of this interim ban was to allow States and Territories the opportunity to update their drug enforcement laws to outlaw synthetic drugs. On 16 June 2013, the former Minister for Home Affairs and Minister for Justice also announced that the Government would develop legislation to ban the importation of unauthorised psychoactive substances or synthetic drugs, and would implement a reverse onus of proof scheme.
While this legislation is yet to be developed, the Commonwealth Government has listed several psychoactive substances, including eight different groups of synthetic cannabis, as prohibited substances in the Poisons Standard; amended the criminal code and the Customs (Prohibited Imports) Regulations to apply controls to synthetic drugs; and amended the Commonwealth criminal code to make it more responsive to emerging substances through an expanded emergency determination power and by listing a number of new substances of concern. I note that on 16 August this year, the former Assistant Treasurer extended the interim ban by 30 days.
This ban has since been extended a further 30 days. I note also that on 24 August 2013, the former Assistant Treasurer gave notice to impose a permanent ban on 19 consumer goods containing synthetic drug substances and certain substances proscribed under schedule 9 of the Poisons Standard 2012 as set out in the draft notice. These are important initiatives, and I hope the incoming Commonwealth Government will continue to work with the New South Wales Government to implement a coordinated approach that denies those who would profit from the sale of dangerous chemicals the opportunity to exploit loopholes and put people's lives in danger. I commend the bill to the House.
The Hon. PAUL GREEN [4.34 p.m.]: On behalf of the Christian Democratic Party I speak on the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013. This bill will prohibit the supply, manufacture and advertising of synthetic drugs or psychoactive substances in New South Wales. It also will make it an offence to manufacture, supply or possess a substance listed on schedule 9 of the Commonwealth Poisons List. The Christian Democratic Party commends the Government for making a major shift in the approach to drug enforcement legislation in Australia. This bill will help to put our police one step ahead and stop them playing catch-up with criminals over the legality of newly emerging drugs on our streets. In the past, specific drugs were banned as a reaction to their emergence and only after they had been identified and tested. In February 2012 the New South Wales Legislative Assembly Legal Affairs Committee commenced an inquiry into issues concerning synthetic drugs and psychoactive substances. On 30 May 2013 following extensive consultation the committee tabled its report entitled, "Law Reform Issues Regarding Synthetic Drugs".
This bill was developed by an interdepartmental committee formed after the tabling of a parliamentary inquiry report into synthetic drugs. I understand the committee was chaired by NSW Fair Trading and included representatives from the Department of Premier and Cabinet, the Ministry of Health, the New South Wales Forensic and Analytical Science Service, the NSW Police Force, the Ministry of Police and Emergency Services, and the Department of Attorney General and Justice. First, the new laws will ban all psychoactive substances as well as those yet to be developed. Secondly, the bill will introduce an offence for the supply, manufacture and possession of schedule 9 prohibited substances on the Commonwealth Poisons List. Finally, by retaining existing laws, which already prohibit specific drugs based on their chemical compound, the bill also allows the Government response to emerging drugs to be escalated once the specific psychoactive substances are identified and their associated harms and criminality are assessed.
These identified and assessed substances can then be added to schedule 1 to the Drug Misuse and Trafficking Act 1985 as a prohibited drug with significantly higher penalties attached based on the quantity involved. Schedule 1 [4] to the bill creates new offences of manufacturing, supplying or possessing schedule 9 substances. Schedule 9 of the Commonwealth Poisons List contains a list of prohibited substances that may be used only for research purposes. Most of the substances listed in schedule 9 have been prohibited already in New South Wales as specific entries in schedule 1 to the Drug Misuse and Trafficking Act 1985. Nevertheless, the new offences will ensure that where a substance is listed by the Commonwealth in schedule 9, but its risks and appropriate quantities have not sufficiently been evaluated to allow prescription under schedule 1 to the Drug Misuse and Trafficking Act 1985, it still can be controlled in New South Wales. This is a good move. The Christian Democratic Party applauds the Government for keeping ahead.
The supply or manufacture of a schedule 9 substance will carry penalties of 20 penalty units, two years imprisonment, or both. Possession will carry the same monetary penalty and the possibility of up to 12 months imprisonment. Schedule 1 [5] to the bill creates a new part 2C dealing with psychoactive substances. Psychoactive substance is defined as any substance which, when consumed by a person, has a psychoactive effect. Both "consumption" and "psychoactive effect" are defined in the Act and the definitions are very broad to ensure that there are no gaps or ways around this ban. Consumption includes ingestion, injection, inhalation, smoking and any other means of introducing a psychoactive substance into any part of the human body.
Psychoactive effect means the stimulation or depression of the central nervous system of a person, resulting in hallucinations or significant disturbance in, or significant change to motor function, thinking, behaviour, perception, awareness or mood, or causing a state of dependence, including physical or psychological addiction. I note that some members might have concerns about the broadness of these terms, but it is unlikely that common things such as energy drinks will fall into the category of psychoactive effect. If they do, another debate can take place about this term in respect of significant disturbance or change. It requires the psychoactive effect, however, to have some significance.
For example, a product such as chocolate will not be banned because it may make a person feel good when it is eaten but it does not have a significant effect on the central nervous system. I will not vote for a bill that bans chocolate. My wife and my kids would never forgive me and many members here would never let me live it down. This bill is a serious matter and is worthy of support. It follows an interim ban on 19 products following the death in June of Sydney student Henry Kwan, who jumped from a balcony after ingesting the $10 synthetic drug NBOMs. The sad reality is that people think that legal means safe. It does not. It means that the law has not caught up yet. An adaptable bill such as this one evens the odds. On 15 September, an article from the Sydney Morning Herald entitled "Chameleons of the drugs world can hide no longer", made some interesting points:
Few substances are more insidious or elusive than the constantly changing synthetic drugs that go by myriad names, such as the glamorous Snow Leopard or, more truthfully, Skunk. The Sun-Herald thus enthusiastically endorses the announcement last week by Minister for Fair Trading Anthony Roberts that NSW is introducing the most comprehensive laws in Australia to ban the sale, manufacture, distribution or advertising of psychoactive drugs, popularly known as synthetic drugs.
The laws seek to anticipate and close the loopholes that have been used by cynical companies that change the name of their products, or the chemical compounds, to skirt around bans. The sale of synthetic drugs also has numerous links to organised crime and online fraud. Under present laws, drugs can be banned only by adding substances to the list of prohibited drugs in the legislation when they are identified, but the new laws will ban all psychoactive substances as well as substances that are yet to be developed.
We believe the next step is obvious. The new Abbott government should adopt the NSW legislation and make an effective state ban a national one.
The Christian Democratic Party concurs with that thought and encourages the new Prime Minister to take note. The article further stated:
The proposed changes to NSW law follow an interim ban on 19 products following the death in June of Sydney student Henry Kwan ...
It was immediately effective. Data from hospital emergency departments in NSW show that presentations linked to synthetic drugs fell from an average of 75 a month in the four months before the ban to 39 in July. Newcastle Police reported a striking decline, from an average 26 incidents a month involving severe behavioural disturbances caused by synthetic drugs, to just two a month since the ban.
The ban was supported by Fair Trading inspectors visiting more than 1000 retailers to ensure synthetic drugs were removed from sale. Six websites selling the products were shut down. Four traders are under investigation for selling banned substances.
The NSW law will adopt schedule 9 of the Commonwealth Standard for the Uniform Scheduling of Medicines and Poisons, making it an offence to sell, manufacture, supply and possess any schedule 9 substance. Penalties will be up to two years' imprisonment, more than $2000 in fines, or both.
The Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill will ban retailers selling chemical substances known as ''legal highs''. Although the bill defines ''psychoactive substances'' broadly, it will exempt alcohol, tobacco, caffeine, foods, herbal medicines and therapeutic goods already strictly regulated.
We believe this legislation will save lives and prevent harm and should be the template for national reform.
This bill can save lives. If it errs on the side of being overprotective and cautious, so be it. If necessary, a later amendment to the bill can deal with the issue. The Christian Democratic Party has concerns that it could be seen as a double standard given the recent discussion about cannabis for medical use, but in this particular case the Christian Democratic Party commends the bill to the House.
The Hon. DAVID CLARKE (Parliamentary Secretary) [4.46 p.m.]: The Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 is a pioneering bill—the first of its type in Australia. I have no doubt it will become the prototype for other legislation of its type worldwide. This is a great bill from the Hon. Anthony Roberts, the Minister for Fair Trading, who is a great Minister in the Coalition Government. The bill will prohibit the manufacture, supply, advertising and, in many cases, possession of psychoactive substances—synthetic drugs—in New South Wales. It will prohibit retailers from selling the kinds of unregulated and potentially harmful psychoactive substances currently on offer as a legal high. It will provide police with the power to charge anyone selling or advertising a psychoactive substance in any form.
This bill responds to the recommendations in the report of the New South Wales Parliamentary Legal Affairs Committee, which was tabled earlier this year. In fact, it will go further and introduce new laws to provide for a total ban on all psychoactive substances subject to appropriate exemptions. Under current laws, drugs and their analogues can be banned only by listing known substances in the legislation when they were identified. Under the bill before us, all psychoactive substances as well as substances that are yet to be developed will be banned. As new substances are identified, they can be added to the list of prohibited drugs under schedule 1 of the Drug Misuse and Trafficking Act 1985, as required, ensuring that existing high penalties under the Act will be available. This bill is generic and specific at the same time.
I do not propose to go into the detail of the bill because that has already been done in the second reading speech. However, this bill is a dramatic escalation and breakthrough in the war against illicit drug manufacturers, drug dealers and drug racketeers who do not care what misery and suffering their victims sustain, so long as they continue to reap large profits from their dirty and disgusting business. Far too frequently we read about the tragic stories of young people in the prime of life who, through their vulnerability, have suffered horrific injury and even death because of synthetic-based drugs. Those who have been operating this new manifestation of the illicit drug business thought they were clever. They thought they would always be one step ahead of the law, but now the law will be one step ahead of them. Congratulations to Minister Anthony Roberts on this far-reaching bill, which I commend to the House.
The Hon. RICK COLLESS [4.50 p.m.]: I support the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013. This Liberal-Nationals Government law represents a major shift in the approach to drug-enforcement legislation in Australia. This bill will ban the supply, manufacture and advertising of synthetic drugs or psychoactive substances in New South Wales. It will ban also all psychoactive substances along with any substances that will be developed in the future that are psychoactive in nature and not exempt. Under current law drugs can be banned by only listing known substances in the legislation when they are identified, but these new laws will ban all psychoactive substances regardless of whether their name is known or they are yet to be developed. Normally in New South Wales we only ban drugs once they have been put on the market; this bill is a significant step away from our previous enforcement methods.
The supply, manufacture and possession of all schedule 9 "prohibited substances" on the Commonwealth Poisons Standard list are prohibited. Anyone found in possession of schedule 9 prohibited substances, which includes all synthetic cannabis products, will face up to 12 months in jail, a fine of $2,200, or both. The only exemptions in this bill are for drugs that are already prohibited under schedule 1 of the Drug Misuse and Trafficking Act 1985. Retaining the existing laws, which already prohibit specific drugs based on their chemical compound, allows the Government's response to emerging drugs to be escalated once the specific psychoactive substances are identified, and their associated harms and criminality assessed. These identified and assessed substances can then be added to schedule 1 of the Drug Misuse and Trafficking Act 1985 as a "prohibited drug", with significantly higher penalties attached to them based on the quantity of the drug involved
In February 2012, the Legislative Assembly Legal Affairs Committee commenced an inquiry into issues concerning synthetic drugs. This bill was developed by an interdepartmental committee formed after the tabling of the parliamentary committee report into synthetic drugs. On 30 May 2013 this year, following extensive consultation, the parliamentary committee tabled its report entitled, "Law Reform Issues Regarding Synthetic Drugs". Following the release of that report the Government imposed an interim 60-day product safety ban under the Australian Consumer Law. On 11 June, in support of the interim ban, NSW Fair Trading commenced its largest ever compliance program. Fair Trading inspectors visited more than 1,000 retailers identified as places where synthetic drugs might be sold, and they provided those retailers with information on the ban and their responsibilities. Some 65 retailers admitted to selling or having possession of drugs subject to the ban. Since the commencement of the ban, the retail sale of synthetic drugs has dried up.
In regional communities there is a real need for the Government to take a strong stance against psychoactive drugs. Yesterday in the other place Kevin Anderson, the member for Tamworth, mentioned that the local Tamworth community had created a petition with more than 1,500 signatures for a total ban on synthetic drugs. Adam Marshall, the member for the Northern Tablelands, said that police had participated in the joint operation with NSW Fair Trading in Armidale. Police followed a number of intelligence leads about the distribution of synthetic cannabis throughout Northern Tablelands communities. To date no arrests have been made, but several people were arrested for the supply of "real" cannabis. That was a good result. This bill will also be welcomed by local communities in other parts of New South Wales such as Tweed, Coffs Harbour and Byron Bay.
At major events such as schoolies—which is coming up in the next few months—young people will no longer be able to buy synthetic drugs legally. Much to the relief of the local communities, police and hospitals, local tobacconists, sex shops and other stores will no longer be able to sell these synthetic drugs. Leslie Williams, the member for Port Macquarie, referred to a report in the Port Macquarie News in which a nurse reflected on the escalation of synthetic drug use locally. She spoke of the dangerous effects of these substances, particularly referring to "white revolver"—a drug that mimics the effects of cocaine. She cited instances where people, after taking these drugs, were presenting to the emergency department with "out-of-control behaviours and manic violence similar to the comic-book monster the Hulk".
This bill will help to ensure the safety of our nurses, doctors and local community members. A number of local Port Macquarie retailers were openly selling these synthetic drugs until the interim ban by the Minister and a visit to the area by the Fair Trading compliance officers. Preliminary Ministry of Health data shows emergency department presentations linked to synthetic drugs has dropped, with an average of 75 presentations per month between March and June 2013 compared to only 39 in July 2013. This bill will ensure that the interim ban will become permanent and that these types of drugs cannot escape any possible legal loopholes by staying a step ahead of the people who manufacture and supply psychoactive drugs to the community.
The Hon. AMANDA FAZIO [4.55 p.m.]: I express my concerns about the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013. My first concern is the approach taken by the Government in an attempt to outlaw synthetic drugs. A number of speakers have used the tragic and unfortunate death of Henry Kwan as an example in this debate. Put simply, Henry Kwan was affected by a synthetic drug that was legal to buy, but he had been sold that drug on the basis that it was LSD—an illegal drug. The Government is failing to recognise that young people are risk-takers. They will always do whatever they need to do to get high, whether by underage drinking or other means—even young people from good backgrounds and families who have told them told about the dangers of drug taking. A number of parliamentary inquiries have heard evidence about brain development and risk-taking behaviours in young people, particularly in young men. By attempting to outlaw synthetic drugs the bill will do nothing to address that problem.
The report of the Legislative Assembly Legal Affairs Committee on law reform issues regarding synthetic drugs failed to address one of the best ways that exist to try to ensure some form of regulation. New Zealand has regulated the sale of synthetic drugs. One of the most common complaints about people using illegal and synthetic drugs is that non-one knows their chemical composition. In New Zealand these products are treated the same as any other consumer product. They have to be deemed to be safe to go on the market. New Zealand has regulated synthetic drugs—if they are not too harmful for consumers—so that if there were a problem with a batch it would be recalled. By taking the view that the best way forward is to ban everything is in fact saying that everything is still going to be available on the illegal market.
As I have said, with these chemical compositions no-one knows what they are getting when they buy them—for instance, the people who overdosed at the dance party held at Penrith last weekend. Even if they are banned, they will still be available. The penalty for possessing these substances will probably be about the same as it is applied for buying marijuana. Young people will still break the law in an attempt to get high. This bill will do nothing to help them nor will it stop backyard operators from cooking up lethal combinations in their garages or wherever.
It just means that people will turn to buying illegal drugs in the same way that they have been for hundreds of years. This bill does not address that problem. If the Government wanted to be courageous and ground-breaking—and they really wanted to do something to stop young people taking dangerous substances—then regulation rather than prohibition would have been the right way to go. That would have been the way to go to ensure that people are not getting bad doses of drugs and are not being sold a tablet they think is LSD—when they have a rough idea of what the effect on them might be if they took LSD—only to find that they have been sold something else. So I think this is the wrong way to go to try to stop people from having adverse effects from synthetic drugs. But the Government is committed to this course of action and I know that my words of wisdom are going to fall on deaf ears. So now I will actually go through the bill and look at some of the consequences of this legislation.
I have had discussions with a few people from the Attorney General's Department and with the shadow Minister about this. Leaving aside the approach it takes, this legislation is still bad legislation and is going to be difficult to administer. It is going to have some unintended consequences that I think a lot of the people who will vote for it and who have spoken so glowingly about it will be unaware of. I know that a lot of people involved in companies such as the Happy Herb Company, which sell those sorts of products, are very concerned. The Minister in his second reading speech said a whole lot of things that will possibly ameliorate those concerns. I will read out one of the concerns that came to me from people who sought to have the bill amended. They said:
We are highly concerned that the Drugs and Poisons Legislation Amendment bill currently under consideration will have unintended consequences that entail direct implications on the trade of herbs and natural extracts. This will have a serious adverse effect on small businesses, and we wish to propose a specific clarifying amendment to avoid legislative overreach.
Under the proposed wording, this law would make it technically illegal, for example, for a NSW citizen to make themselves a relaxing cup of passionflower tea, as this herb would be defined as having a "psychoactive effect". It would also be illegal for us to suggest that a harmless herb such as this produces a relaxing effect under the proposed definition of "psychoactive". There are many other herbs and herbal extract blends which would potentially be captured by the current definition. The word "significant" is of paramount importance here, as you mentioned in our conversations.
Clause 36ZD of the bill says:
psychoactive effect, in relation to a person who is consuming or has consumed a psychoactive substance, means:
(a) stimulation or depression of the central nervous system of the person, resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or
(b) causing a state of dependence, including physical or psychological addiction.
These concerned people propose that that clause of the bill be changed to read:
(a) an effect upon the central nervous system of the person, resulting in hallucinations or a significant deleterious and uncontrollable disturbance in, or significant deleterious and uncontrollable changes to, motor function, thinking, behaviour, perception, awareness or mood.
It is basically saying that the clause should be changed to specify that the psychoactive effect is having a negative impact on people. Having the wording changed would overcome the problem of capturing harmless herbs within the legislation. The Minister in his second reading speech stated:
The bill also exempts psychoactive substances which have a long-established status as legal products, whether for all consumers or just adults such as alcohol, tobacco, and herbal products.
The Minister continued:
In relation to herbal products, a market has existed for some years for 100 per cent natural herbal products, which are not prohibited under existing legislation and might be marketed as relaxing teas or sleeping aids. While some herbal products may or may not have mild psychoactive effects, it is not intended to prohibit such products, particularly as the very same herbs are often sold as herbal remedies in health food stores and supermarkets.
It seems that those comments by the Minister in his second reading speech cover those concerns which were raised with me by the industry.
The bill exempts drugs which are already prohibited. The bill also exempts substances provided by health practitioners in the course of providing a health service. It also creates exemptions for food within the meaning of the Food Act 2003. This would overcome some other concerns of the people who sell herbal products. They had wanted a new section, section I, put into the bill to cover this. I think the comments the Minister has made ameliorate those concerns. The Minister also said:
… however, the definition of "psychoactive effect" requires a significant change to a person's mood or perception, and it is not intended to capture such marketing claims.
So it is not intended to capture, for example, somebody saying that passionflower tea is a relaxing tea to have at night. There are so many different products that are sold on that basis. The biggest problem with this legislation is that plants are exempt unless they contain a drug that is included in schedule 1 of the Drug Misuse and Trafficking Act. Proposed section 36ZE of the bill lists the substances that the bill will not apply to. It includes:
(h) any plant or fungus, or extract from a plant or fungus, that is not, or does not contain, a substance specified in Schedule 1,
The problem is the plants captured as having ingredients included in schedule 1. It is quite amazing. For example, mescaline is included in schedule 1. Like a lot of people in New South Wales, across the country and globally, I grow cacti and succulents. Virtually every type of cacti has mescaline in it. The simple fact is that only a few types of cacti—I think there are three—have enough mescaline in them to actually make it worthwhile to produce mescaline. However, mescaline analogues are present in almost all cactus species in minute traces. So in effect anybody who sold a cactus or swapped a cactus with a friend would fall under this legislation.
The Hon. Marie Ficarra: Swapped a cactus with a friend.
The Hon. AMANDA FAZIO: I hear the disdain coming from the Hon. Marie Ficarra. She obviously has never been to one of the fairs held every year by the Cactus and Succulent Society of New South Wales where you can go and swap plants with other people. The simple fact is that that society would be equated with a cartel of drug dealers because of the stupid way in which this legislation has been drafted. There are a number of other common plants that contain substances that are deemed to be a schedule 1 drug. There is dimethyltryptamine [DMT]. About 10 per cent of all native wattle species contain DMT, including the most common ones like Acacia longifolia—which is used extensively by Government agencies as a highway planting—and Acacia sophorae, which has been planted to help dune rehabilitation on beaches in New South Wales. Banning commercial cultivation of Acacia courtii would complicate its status as an endangered species. Acacia is but one of the species with problems in this regard. DMT is also found in many legume fodder plants and ornamentals. They contain DMT or analogues of DMT. Phalaris grass also contains DMT. It is the main pasture grass grown in drier parts of New South Wales from Albury to the Queensland border and it is rich in DMT. Criminalising supply of this pasture grass would affect most graziers in New South Wales. I notice that nobody in the National Party is interested in this issue; instead they have all thought, "Wow, we can claim in the headlines that we are banning synthetic drugs with this bill."
Ergotamine is another drug that is included. People who get migraines will know that is one of the major ingredients in migraine medication. It is also commonly found in most species of the Convolvulaceae family. That includes the common morning glory vines that grow along railway tracks and riverbanks in New South Wales, which once again makes the Government the main cultivator of this drug. Sweet potatoes contain traces of ergotamine analogues in their leaves. All ornamental species in the family, which include about 20 common commercial plants in New South Wales, would also be captured by this legislation. Harmaline is of concern to the industry because it is found in passionflower tea. Traces of that drug are present in passionfruit vines, including those used for commercial fruit production as well as rare native species.
From my reading of it, no minimum allowable amount of a schedule 1 drug is included in this legislation. There is no way of knowing whether somebody who has in their backyard a passionfruit vine, some acacias and a greenhouse full of cacti will be treated like a drug dealer. If Government members say in this House that of course this bill will not apply to them even though schedule 1 drugs are prohibited that will mean that we are passing a piece of rubbish legislation. This will be a piece of bad and stupid legislation and I would expect the Government Whip, who is well known for opposing unnecessary and stupid legislation, to have a say on this.
As a legislator, this is the type of bill that I find to be just plain stupid. This Government deserves to be condemned if it does not put forward legislation that works and adequately covers all unintended consequences. An assurance from the Government that a minimum amount of schedule 1 drugs by volume in plants will be specified will provide some comfort to the nursery industry and people who grow cacti that they will not be caught by this legislation. Everyone knows that it is illegal to grow mescaline cactus, but this bill would make growing any other variety of cacti equally as bad and illegal. Unless we get an assurance that that is not the case it shows that the Government has rushed this bill.
I know that a government makes a political decision when it decides the approach it will take to deal with synthetic drugs. I have already said that I think the approach this Government has taken is wrong. It will do nothing to make our young people safer. It also will do nothing to ensure that these drugs have a regulated market. As long as all of these drugs are illegal there is no possible way in which we can ensure we remove from the marketplace any substance that we know is making people sick, causing them to overdose or—even worse—killing them. The Government has decided to proceed in this way and, from my perspective, it is a wrong decision. I admit that the community wants something done about synthetic drugs.
If the Government had been a bit more adventurous and responsive to the reality that we cannot stop people from taking illegal drugs it would have taken a different approach and recognised that what it ought to do is provide drug takers with the safest possible environment. The Government is introducing legislation that will potentially criminalise people who simply want to grow plants which up until now have been legal to grow, display and take to plant shows. This legislation will criminalise the Botanic Gardens Trust. Will it have to bulldoze its beautiful cactus garden?
The Hon. Marie Ficarra: Are you crazy or what?
The Hon. AMANDA FAZIO: I am not crazy; this legislation is crazy. Unless the bill provides a minimum amount of schedule 1 drugs per volume by plant, this bill will criminalise gardeners. Members opposite might say it is all right because the bill will not be implemented in that way. What sort of example does it set for the community if the Government says it will put legislation in place that is stupid and unworkable but not implement it? That tells the community that if they do not like a law they do not have to implement it. That is a wrong example to set. We should not proceed to the third reading of this bill until these issues have been properly considered and amendments are put forward by the Government to ensure that these unintended consequences are nullified. As it stands, this bill does not achieve what the Government intends it to. In fact, it will criminalise a bunch of law abiding gardeners in New South Wales. That would be shameful.
The Hon. NIALL BLAIR [5.15 p.m.]: I support the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 and will address some of the issues raised by the Hon. Amanda Fazio. As a horticulturalist who has a glasshouse at his property and as someone who travels down the Hume Highway and sees the acacias in full bloom, I am happy to support this legislation despite what the previous speaker said. I am led to believe that the bill addresses the issue of plant substances about which the Hon. Amanda Fazio spoke. I am sure the Parliamentary Secretary will go into greater detail, but I am led to believe that those plant substances would need to have a significant impact on a person. I imagine that significant amounts would need to be consumed before they had any impact on an individual and I am therefore comfortable with those provisions.
I believe that synthetic drugs are being used in workplaces where they have the potential to cause significant injury. We have found an increase in the use of synthetic drugs in workplaces that have drug testing regimes, particularly in the mining industry. That is because people understand that some synthetic drugs cannot be detected through drug testing procedures. Surely we should be doing whatever we can to eliminate synthetic drugs when we know that some of them can dangerously impact on the behaviour of people in the workplace who may be operating heavy machinery, using other equipment or working in mines. The Labor Party should endorse the Government's attempt to remove the supply of synthetic drugs to our community and particularly to those people who are using psychoactive substances as a substitute for illegal drugs which are capable of being picked up through drug testing in the workplace.
I worked as a workplace safety consultant before I came into this place. Workplace drug testing procedures were often fully endorsed by the unions because they did not want their members to be injured by someone who was under the influence of a drug. The synthetic drug industry has been gaining a hold in areas such as abattoirs, mining and some manufacturing workplaces where drug and alcohol testing procedures have been implemented. That is just one good reason why all members in this Chamber should support our efforts to ensure that our workplaces are as safe as possible and that people do not operate equipment or undertake dangerous activities under the influence of synthetic drugs. Breaking the supply chain and making it harder for people to access these drugs would achieve that result.
We are also trying to protect young people. I acknowledge that the previous speaker said that young people—and people in general—are risk takers. The Government wants to ensure that we make it more difficult for young risk-takers to get their hands on substances that we know can cause detriment.
Dr John Kaye: It has not worked so far.
The Hon. NIALL BLAIR: It does work. We have anecdotal evidence from Father Chris Riley from Youth Off The Streets. He has his farm near where I live in the Southern Highlands. He is saying there is anecdotal evidence not just relating to the use of synthetic drugs but also relating to kids bragging about using synthetic drugs. Surely we cannot question someone like Father Chris Riley, who is working directly with children who are at risk.
Dr John Kaye: But that is not what I said. You are verballing me and you know it. What I said was that it does not work to make them illegal.
The Hon. NIALL BLAIR: Okay. I am addressing the issue of young people at risk using them. If I did misinterpret that, I apologise. But surely when someone like Chris Riley, who is working with children at risk and some of the high risk-takers to whom the member who preceded me in this debate referred, is reporting not only the anecdotal evidence of the use of synthetic drugs but also the bragging about the use and other kids being drawn to synthetic drugs by their peers, that should be another reason for commending the Minister for taking this action. The action taken by the Minister in this area was very pleasing. Once he got that information from the report, he took swift action and we saw one of the biggest exercises undertaken in New South Wales by the Department of Fair Trading. The department not only investigated to find out the source of supply of synthetic drugs but also talked to business owners who potentially could be approached to sell synthetic drugs and provided them with information. It was not a matter of adopting a sledgehammer approach but rather an approach that involved working with business owners to explain why the department was taking this action.
The Government took this action after reports of the tragic circumstances in which a number of people had a variety of episodes while under the influence of synthetic drugs. The Minister engaged his department to address the supply issues and provide information to business owners that explained why the Government was taking action and what the consequences of breaches would be. The Minister is to be commended for the swift and direct action he and his departmental officers took in response to the situation. I believe that this bill represents a common-sense approach to an industry that has the potential to be well and truly ahead of the law and testing procedures. This legislation will provide the NSW Police with the necessary tools with which to protect our community from a trade that was unknown but is rapidly gaining a foothold in our society. For the reasons I have stated, I certainly commend the bill to the House.
The issue in relation to synthetic drugs in the workplace cannot be underestimated. I am sure that unions, employers and other employees in the workplace will welcome this legislation. I reiterate that I commend the Minister for taking swift action in relation to this issue. The Minister for Health, and Minister for Medical Research and the Minister for Mental Health, and Minister for Healthy Lifestyles have provided information showing a reduction in the number of people presenting to hospital emergency departments suffering certain episodes following their use of synthetic drugs since the application of the temporary ban. With that information and the anecdotal evidence from people such as Father Chris Riley, I believe the Government will be able to make inroads into addressing this problem. I commend the bill and the Minister to the House.
Dr JOHN KAYE [5.23 p.m.]: On behalf of The Greens I join in debate on the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013. At the outset I state that The Greens will energetically oppose this legislation.
The Hon. Marie Ficarra: Oh, really?
Dr JOHN KAYE: It is important to recognise that we all start from exactly the same situation: None of us wants to see another senseless death of someone like Henry Kwan and none of us wants to see New South Wales flooded with dangerous drugs that result in the injury, harm and indeed death of young people. We have to accept that we all start at the same location. I do not doubt that over the next 20 minutes there will be a fair number of interjections based on the allegation that what I have said is not true as it relates to The Greens, but it is true. I say that because I believe that tonight we are making a major mistake in our approach to dealing with synthetic drugs. That mistake is being made by not looking at the alternatives, by adopting a knee-jerk reaction and by trying to achieve the impossible. This legislation is trying to achieve something that simply cannot be done—placing a ban on all synthetic psychoactive drugs. If it were possible to do so, we could have another conversation.
The way this bill prescribes the ban has created loopholes that will shift the arms race between legislation and drug manufacturers—the chemists who in many cases are immoral, dangerous, uncaring and murderous individuals who work for underground illegal drug cartels. We are just shifting the goalposts because they will move to a new location. They will walk through those loopholes and continue to manufacture drugs, and in many senses we will have gone backwards. This legislation could have a perverse outcome. I will explain more of that at a later stage, but before I begin to deal with the bill in detail I will make one observation. There is another way of dealing with the harms done by synthetic psychoactive substances. It is working very well and, as the Hon. Amanda Fazio said, it is happening in New Zealand.
The New Zealand approach, to which I will refer from time to time during my speech, is very straightforward. It is this: If a manufacturer wants to put a synthetic psychoactive substance on the market, the onus of proof that it is low risk rests with the manufacturer. The manufacturer must establish that the substance is low risk. The drugs are put into the marketplace in tightly controlled environments that avoid selling those drugs to young people, avoid those drugs being sold in dosages that are dangerous and avoid drugs being sold to people who would harm themselves with those drugs. In New Zealand, synthetic substances are better regulated than alcohol and tobacco. In New Zealand, which is the originating home of synthetic cannabis and other synthetic drugs, the arms race has come to an end. It is now a matter of regulating and controlling the harms that are done, and reducing those harms.
The New Zealand approach recognises that it is an impossible task to put all synthetic psychoactive substances off the market entirely, and that approach has worked. In New South Wales the approach to date has been to ban a synthetic drug chemical by chemical. Of course that has produced the obvious outcome: When a chemical is banned, the laboratories of the underground illegal cartels will produce another chemical—a new chemical formula—without regard to whether that chemical formula is more or less dangerous. In many cases, the new chemical is more dangerous because the safer chemicals already are on the banned substances list. What we created in New South Wales by banning one substance and then banning another substance was an arms race in which the real victims are our young people and the real damage was inflicted on our young people, who were being exposed to more and more dangerous chemicals.
The approach now proposed to be adopted by enactment of this legislation is one that would have fitted very well in the former Soviet Union: Everything is banned unless it is otherwise allowed. That is an exceptionally dangerous approach to adopt. As soon as we say that everything is banned except for that which is not banned, we then have to ask, "Well, what is not banned?" That can be done in two ways. Obviously, psychoactive substances are part of everyday life. For better or worse, alcohol, chocolate, coffee, Sleepytime herbs and herbs used to enhance concentration are all substances that are very old and that we have evolved as human beings to consume. They are part of our life. Even this bill recognises in proposed section 36ZE that it is a nonsense to try to ban all psychoactive substances.
If one follows the approach to this bill, one then says, "Okay, we have to have a list of what is not banned. We can do that in two ways—by category or by substance." One can produce a long list of things that are not banned. If one does that one will then stymie innovation in the food industry. Members will recall that the Food Act 2003 specifically encourages innovation in the food industry. Contrary to that, the approach that this bill takes is to create exemptions under proposed section 36ZE, "substances to which this part does not apply". That takes out things that are under schedule 1 of the Drug Misuse and Trafficking Act for which the bill would create double penalties—poisons and so on and equivalent precursors. Proposed section 36ZE (1) (e) then says, "exempted from this section will be a food within the meaning of the Food Act 2003". If one goes to section 5 of the Food Act 2003 one sees, "meaning of food". What is a food under the Food Act? Under section 5 (1) (a) it is:
Any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared).
So provided it is prepared for human consumption under the Food Act 2003 it is a food. Therefore, all I need to do if I want to use the exemption which knocks out the substance from the offence of supplying or manufacturing a psychoactive substance under proposed section 36ZF, is to declare it to be a food. One cannot do it for a substance which is smoked because that is not covered under the Food Act, but provided that it is consumable—a liquid or a solid that can be drunk or chewed or swallowed—
The Hon. Dr Peter Phelps: Or a cookie.
Dr JOHN KAYE: Or a cookie. Even if one puts it into chewing gum it becomes a food. Once it is a food it is exempt from the penalty under proposed section 36ZF. All we have done by way of that exemption is to shift the game to anything that can be said to be a food. No doubt the Government will say, "What about proposed section 36ZE (2) which says, "A reference to a substance in subsection (1)"—that is the list of categories that are exempt—"does not include any substance that contains or has added to it any psychoactive substance that is not specified in subsection (1)". That is a highly circuitous piece of drafting. The problem with it is that once a psychoactive substance can be classified as a food it is a psychoactive substance that is not specified in subsection (1) and therefore is not captured. So all one needs to do is to say that a substance is a food and thus it is mentioned in subsection (1). Once it is mentioned in subsection (1) as a food it is not captured by subsection (2) and is exempted.
I congratulate the brains behind this bill because the Government has simply banned anything smokeable or injectable. That is possibly a good thing from the point of view of lung and vascular health. The Government has created a loophole for the people who manufacture synthetic drugs. Anything that can be smoked will now be remanufactured as an edible material and, therefore, as a food. Well done; the Government has demonstrated the way in which the impossibility theorem applies to these kinds of bans. If those opposite are doubtful about the applicability of the impossibility theorem to this situation they and the people behind the drafting of this bill should have a look at the history of the Soviet Union. It says that when one states that everything is banned, except for that which is not banned, one must then create exemptions for sensible things and then one is back to where one started—categorising. In this situation, when one categorises, inevitably it fails because one creates loopholes that inevitably will create opportunities for drug manufacturers to walk straight through.
The Hon. Matthew Mason-Cox: Have you just disowned your ideology?
Dr JOHN KAYE: I take exception to that appalling and grubby comment. In this case, having created a loophole, those opposite have created a massive open highway that can be driven through. No doubt we will see an amendment to the proposed legislation to fix this up. In doing so we will probably end up banning coffee, chocolate, Sleepytime tea or chamomile tea, or some other foods.
The Hon. Dr Peter Phelps: Hear, hear! Ban chamomile tea.
Dr JOHN KAYE: That is the one thing on which I agree with the Government Whip—I hate chamomile tea. The harsh reality is that this proposed legislation will not have the effect it is supposed to have. It is a dismal failure, specifically because it is impossible to do what it is trying to do. Even supposing that it does work what will that achieve? Let us suppose that we can ban these substances. If we impose a ban on these substances manufacturers will go further underground than they already are and we will have no hope of regulating them and no hope of protecting young people such as Henry Kwan from these dangerous synthetic drugs. The Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 gives up on the opportunity to regulate dangerous drugs, drag manufacturers out from under the shadows of illegality, put them in a place where we can regulate them and stop them from producing dangerous substances. The bill turns its back on that opportunity because of ideology and the fear of certain elements in the media who want the instant gratification that banning provides.
The bill will not defeat the dangerous drug barons but will only drive them underground. We will never get rid of them. There will always be illegal drugs, many of which will be dangerous drugs. It would be better to clip the wings of the drug barons. By rejecting the proposed legislation this Parliament could do that by forcing the Government to come back with legislation that mimics the New Zealand legislation. It will turn the war on drugs from being a failure to providing a way in which we can take away some of the market from dangerous drug barons. We could enter into a partnership with New Zealand and cooperate, using its testing and its regulation and enhancing it in New South Wales. Under the proposed legislation that which is illegal will not be tested and that which is legal will not be tested. This gives up on the chance to make our young people safer, in return for a quick hit to please the media.
I listened carefully to the Hon. Niall Blair and to his concerns about drug testing in the workplace and I share them. I think it is a major concern. But I ask the Hon. Niall Blair and every person who will be voting on this bill: How will making those drugs illegal make them any easier to test? One might argue that making them illegal makes them harder to get. I say: Go out and try to buy some cannabis or some ecstasy or any other drug. This State is awash with illegal drugs. Members should not kid themselves that making something illegal will get rid of it. It only criminalises the end users and creates a massive, lucrative market for illegal drug barons. That is what this proposed legislation will do, if it has any effect at all. It will not create an opportunity to control synthetic drugs or to make workplaces safer.
How does driving these drugs underground make the problem any better? If we are to deal with the problem of synthetic drugs in the workplace we should have a suite of legal synthetic drugs for which we could develop tests and then we can test in the workplace against those legal synthetic drugs. I suspect, in the end, that the only solution to workplace safety with respect to drugs will be to develop behavioural tests. Chemical tests will always create another race to make the drug less detectable or undetectable. Surely the answer is to move towards a behaviour-based test. There are other unintended consequences of this legislation, particularly the rather bizarre proposed section 36ZG which says:
A person is guilty of an offence if the person publishes or displays in any manner, way or medium or form any advertisement which ... promotes, directly or indirectly, the consumption, supply or sale of a substance for its psychoactive effects.
It is not clear whether proposed section 36ZG is covered by the exempted products in proposed section 36ZE. I suspect it is not and, if so, according to proposed section 36ZG, if someone sells coffee as a wake-up beverage—"Come and have my coffee, it's a wake-up"—they commit an offence and could be sent to jail for two years. If someone sells Sleepytime herbal tea, which aids someone in getting to sleep and is probably exempted from the provisions under proposed section 36ZE, or someone sells a ginger tea, which is good for higher consciousness, or any substance with such effects, even though the substance is legal an offence will be committed for which the penalty is imprisonment for two years. This legislation is so poorly drafted that it is not clear.
As I stated at the outset, the problem is that this legislation is trying to do the impossible. It says, "We're going to get rid of all synthetic drugs" when that is just not possible to do. The only solution to the tragedy of Henry Kwan and other young people at risk of being harmed, or who have been harmed by synthetic drugs, is to drag the drug barons out from behind the barrier of illegality into the legal domain and force them, as happens in New Zealand, to produce low-risk substances to satisfy as much of the market as possible. The harsh reality is that high-risk substances will always be available. If we can divert some young people away from those high-risk substances, we have done something positive. Even if we could ban all synthetic substances it will only feed an underground market. Sensible solutions are available. I wonder whether this Government has the courage to take on those solutions. I suspect it will continue with a knee-jerk reaction, involving patch after patch on this piece of legislation to close loopholes. Each time a loophole is closed, the synthetic drug market is driven further underground.
The Minister's staff might feel happy that they are doing something and a good headline might come out of it, but if they had a skerrick of morality and concern they would advise the Minister that this bill is a failure. They would tell the Minister that this is the wrong direction to take, provide information about New Zealand's model and have this Government take the courageous approach and show real leadership on synthetic drugs. Instead, today we will pass a piece of legislation with massive unintended consequences that does not even fulfil its own brief. No doubt the loophole I have identified eventually will be closed. I wonder whether the Government will even take this bill through to the third reading and face the possible court challenges that this loophole creates. Perhaps it will; I look forward to the court challenges. Then we will have more legislation and we will patch that up, followed by more legislation as we create more harm. This evening we could have gone down the New Zealand path and said, "Let us bring this to an end." Let us once and for all put the kids at the forefront, not those few journalists stirring this up or those few who think there is an instant fix to an impossible problem. Instead, we should address this problem honestly and openly and work out ways to minimise the harm from these drugs and make sure solutions are available at least for some people. The Greens will oppose this legislation.
Mr SCOT MacDONALD [5.43 p.m.]: I support the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013. I am not sure what the previous speaker had been imbibing, but he got a few facts wrong, beginning with the name of the family who lost their son in June last year—Kwan.
Dr John Kaye: That's what I said.
Mr SCOT MacDONALD: It is unfortunate also to point across the gallery at ministerial staff—that is a new approach. I know I have been here only 2½ years, but that is an unfortunate approach to take. Staff are not elected and do not create policy; they give effect to government policy. The genesis of this bill was in the Legislative Assembly Legal Affairs Committee, chaired by Dominic Perrottet, who was ahead of the curve. In February 2012 his committee commenced an inquiry into issues concerning synthetic drugs. On 30 May this year, following extensive consultation, the committee tabled its report entitled, "Law reform issues regarding synthetic drugs." Mr Perrottet came to Armidale and, amongst other things, made inquiries around that city on how these substances were distributed and sold, and the issues they created. He took his own initiative and even after the report was tabled still inquired about matters. The report made 13 recommendations to the New South Wales Government.
The recommendations highlighted the need to reform the law to more effectively prohibit these new psychoactive substances. On 9 June this year, in response to the report, the Minister for Fair Trading, Anthony Roberts, imposed an interim 60-day product safety ban on synthetic drugs under Australian consumer law. Unfortunately, that month Henry Kwan who, we believe, ingested a synthetic LSD drug, died from the effects of that drug when he thought he could fly off a balcony. I do not think the previous speaker was being trite but, certainly, he sailed close to mark when stating that driving these drugs underground would not improve things and that nobody wants this bill. The Kwan family want action, as they were quoted after the tragic death of their son. They are entitled to a response from the Government even thought it might not be perfect. Any prohibited substance always generates those issues, whether it is alcohol or drugs. Walking away from the problem is not a solution.
The previous speaker alluded a few times to New Zealand, but its model is only two months old. The previous speaker might need to do a little research. I am advised that this reform is based on the Irish model, which provides a total ban on synthetic substances with exemptions. Ireland has reported being highly successful in closing down retail outlets selling synthetic psychoactive substances. As in Ireland and New Zealand, food will be exempt in Australia. A few other speakers from the other side provided some imaginative dialogue about chamomile tea, cactus by-products and a few similar things. Certainly, that is not the intent or the practice of this legislation. In June the New South Wales Liberal-Nationals Government pressured the Federal Government of the day, the Labor Government, which had to be dragged kicking and screaming to impose a permanent national ban on these damaging drugs.
The Hon. Amanda Fazio: Rubbish! That is absolute garbage.
Mr SCOT MacDONALD: The Federal Labor Government took its time responding. Our very proactive Minister Anthony Roberts—Robbo the Good—was progressing and driving this issue. It took a bit of media pressure for which the Minister should not apologise. As I said, kicking and screaming, the Federal Government, which probably had other things on its mind in June, finally came to the party. On 18 June the Federal Government announced a national interim product safety ban for 60 days and stated publicly that the ban should be extended for up to 120 days. The Federal ban applied to the same 19 named products and their equivalents as identified in New South Wales, as well as a list of prohibited substances in schedule 9 to the Commonwealth Poisons Standard for the uniform scheduling of medicines and poisons. On 11 June in support of the New South Wales interim ban, NSW Fair Trading commenced its largest ever compliance program visiting over 1,000 retailers to inform them of the ban and their responsibilities. As the Hon. Niall Blair mentioned, they were quite active in places in the north of the State, including at Armidale and Tamworth. It will be remembered that the Minister for Fair Trading—good Robbo—was everywhere. He was on television and on radio, and he was quoted in the print media. Other Fair Trading commissioners and their staff were also out in the community. This issue was responded to by all forms of media and unless someone was living under a rock he or she would not have missed the Government's intention.
Since the commencement of the ban the retail sale of synthetic drugs has ceased. Newcastle police have reported that between January and June this year, an average of 26 incidents each month involving severe behavioural disturbances were attributed to synthetic drugs. I remember reading about the presentations at John Hunter Hospital. Following the interim ban this figure dropped to an average of two incidents per month. I do not know what more evidence Dr John Kaye needs. He said that this bill would drive trade underground; that people would still overdose and abuse it. The evidence is in the data. During the first six months of this year 26 incidents were reported by Newcastle police and now just two incidents have occurred. This policy is based on data and evidence.
Preliminary Ministry of Health data shows that emergency presentations linked to synthetic drugs have dropped with an average of 75 presentations per month between March and June 2013 compared to only 39 in July this year. It is clear that the product safety bans have worked. In the absence of a permanent national product safety ban, the New South Wales Government has decided to act with the most wide-ranging and comprehensive synthetic drug laws in Australia. The NSW Police Force and the New South Wales Ministry of Health will launch a campaign to inform the New South Wales community about the new laws and the dangers associated with these dangerous substances. The manufacture, supply and advertising of psychoactive substances, also known as synthetic drugs, are outlawed. Manufacturers and sellers of the substances will face up to two years in jail or a fine of $2,200, or both.
The supply, manufacture and possession of all schedule 9 prohibited substances on the Commonwealth Poisons Standard list are prohibited. Anyone found in possession of a schedule 9 prohibited substance which includes all synthetic cannabis products, will face up to 12 months in jail, a fine of $2,200, or both. The new laws will outlaw all psychoactive substances, even those yet to be developed, which means that none should fall through the net—a challenge with which the chair of the committee tried to come to grips. He met that challenge by prescribing drugs that are yet to be developed. I am happy to support this legislation which had its genesis in the Legislative Assembly Legal Affairs Committee. Congratulations go to its chair, Dominic Perrottet, the Minister and his staff. I commend the bill to the House.
The Hon. MATTHEW MASON-COX (Parliamentary Secretary) [5.53 p.m.], in reply: I thank all members for their contributions to debate on the Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013. A wide range of views have been expressed tonight. The Government respects the passion behind those views and the manner in which they have been communicated. The bill will prohibit the supply, manufacture and advertising of synthetic drugs and psychoactive substances in New South Wales, for which the Government makes no apology. Synthetic drugs are a scourge on our community and this bill will, once and for all, stop the marketing of these products known as legal highs.
In February 2012 the New South Wales Legal Affairs Committee commenced an inquiry into issues concerning synthetic drugs. On 30 May 2013, following extensive consultation, the committee tabled its report entitled "Law Reform Issues Regarding Synthetic Drugs." The report made 13 important recommendations to the New South Wales Government, which highlighted the need for a reformed law to more effectively prohibit the new psychoactive substances. I thank the members of that committee, including the member for Campbelltown, the member for Myall Lakes, the member for Cessnock, and the member for Wallsend, whose work on the issue helped to develop the bill that the Liberal-Nationals Government brought before this House. I draw attention to the leadership provided by the member for Castle Hill, who played an essential role in ensuring that this issue was comprehensively addressed by the Government. It is a bipartisan approach that, sadly, is opposed by The Greens.
Notwithstanding the position of The Greens, New South Wales will now move to a multilayered response to psychoactive substances and none should fall through the net. Some of the issues raised by members, in particular The Greens, related to more common substances such as coffee or other food items. The comparisons drawn in that regard were highly misleading. The new laws ban any psychoactive substance that is listed in schedule 1 or schedule 9, but also any psychoactive substance that is yet to be developed. This means that someone cannot develop a psychoactive substance and pass it off as a food—as Dr John Kaye suggested—without it being captured by the new laws. If someone developed a psychoactive substance and tried to sell it as a food, it would be in breach of the legislation, just as if he or she tried to sell heroin or cocaine in a food product. If a new food product was found to contain a previously unknown psychoactive substance, it could be listed in schedule 1 of the Drugs Misuse and Trafficking Act as a prohibited drug when it is identified.
There are exemptions to some products such as alcohol, tobacco and caffeine. An expert committee with representatives from NSW Health, the NSW Police Force and the Attorney General's department will make representations to the Attorney General on any new psychoactive substances that should be added to schedule 1, thus addressing the concerns of Dr John Kaye and those raised by the Hon. Amanda Fazio regarding cacti and other succulents. In response to those concerns I make the following points. First, this bill can only prohibit substances that are for human consumption—nurseries do not sell cacti for human consumption. Secondly, the exemptions need to be considered under this bill. Schedule 1 substances are exempt. The existing provisions of the Drugs Misuse and Trafficking Act will continue to apply and remain unchanged. In addition, the plants that do not have a schedule 1 substance in them are also exempt unless a psychoactive substance is added. In addition, a regulation-making power has been included in the bill so that if necessary and appropriate plants or other substances of concern can be specifically exempted. This exhaustive approach provides a flexibility to correct any unintended consequences should they arise. Members can take great comfort in that fact.
I note that Dr John Kaye asked why New South Wales did not adopt the New Zealand approach to synthetic drugs. If products are found to be safe why not permit their manufacture and sale? Australia and New South Wales have a scheme regulating drugs that have a therapeutic use. These drugs are stringently tested and are heavily regulated. The detail of their manufacture and ingredients are known, strict labelling requirements apply, and their use is strictly monitored. The bill will criminalise the manufacture, possession, supply and advertising of all other psychoactive drugs that have not been regulated. These drugs have not been tested, their composition is unknown and their labelling is not subject to any control. They represent a menace to our community. These drugs cannot be described as safe because their effects are unknown and the consequences of their use can be tragic. Currently, all psychoactive substances are banned in New Zealand and will remain banned until they are proven to be safe. The reality is that we are in a similar position to New Zealand in respect of prohibiting psychoactive materials. That is exactly the way in which we should proceed in this matter.
These groundbreaking new laws will ban all psychoactive substances as well as those yet to be developed, subject to appropriate exemptions. A number of members have called that a welcome introduction.
I note that the supply, manufacture and possession of all schedule 9 prohibited substances on the Commonwealth Poisons Standard list are also prohibited. Finally, retaining the existing laws that already prohibit specific drugs based on their chemical compound allows the Government response to emerging drugs to be escalated once the specific psychoactive substances are identified and their associated harms are assessed criminally. These identified and assessed substances can then be added to schedule 1 of the Drug Misuse and Trafficking Act 1985 as a prohibited drug, with significantly higher penalties attached to them based on the quantity of the drug involved. I note the maximum penalties for a schedule 1 drug can be as high as life imprisonment. This emphasises how seriously the Government takes these dangerous drugs.
I also note the numerous reports that have flooded in from police, doctors, paramedics and community workers around New South Wales stating how significantly incidents of crime and health problems have declined in the short time since the Government took action in June this year. In particular Father Chris Riley, the founder of Youth Off the Streets and someone that all members would respect for his selfless work, argues this most clearly. He said that the Government's action and approach has "proved to be effective with synthetic drug availability and use in huge decline. Father Chris Riley also said:
The ban placed on the sale of Synthetic Drugs has had great results, we've notice a dramatic decrease in the use of synthetic drugs, and, not only that, the amount of talking and bragging about the use of them has also decreased.
That is very welcome. The bill outlaws synthetic drugs in this State, even those drugs not yet developed. The new law will be the most wide-reaching and comprehensive prohibition on psychoactive substances in this country. It is, in the words of the Hon. David Clarke, pioneering legislation that the Government hopes will be the new national benchmark in this crucial area of law enforcement. It will remove the scourge of these highly dangerous substances from retail shelves and help to ensure a safer community for all residents in New South Wales. In closing, I pay special tribute to the Hon. Anthony Roberts, Minister for Fair Trading, for his tireless efforts in developing these breakthrough laws—
The Hon. Marie Ficarra: Robbo the good.
The Hon. MATTHEW MASON-COX: Robbo the good has been quick to act. We applaud his strong response to an insidious cottage industry that threatens the safety of all of our community. Accordingly, I strongly commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Ayes, 31
Mr Blair
Mr Borsak
Mr Brown
Mr Clarke
Mr Colless
Ms Cotsis
Ms Cusack
Mr Donnelly
Ms Ficarra
Mr Gallacher
Miss Gardiner Mr Gay
Mr Green
Mr Khan
Mr Lynn
Mr MacDonald
Mrs Maclaren-Jones
Mr Mason-Cox
Mr Moselmane
Reverend Nile
Mrs Pavey
Mr Pearce Mr Primrose
Mr Searle
Mr Secord
Ms Sharpe
Mr Veitch
Ms Westwood
Mr Whan
Tellers,
Dr Phelps
Ms Voltz
Noes, 5
Mr Buckingham
Dr Faruqi
Dr Kaye
Mr Shoebridge
Tellers,
Ms Barham
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Leave granted to proceed to the third reading of the bill forthwith.
Third Reading
Motion by Hon. Mathew Mason-Cox agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly without amendment.
