Drug Supply Prohibition Order Pilot Scheme Bill 2020
18th November 2020
Mr GREG PIPER (Lake Macquarie) (22:26:15): While I note that the scheme in the Drug Supply Prohibition Order Pilot Scheme Bill 2020 is a pilot, which I am more inclined to support, I also note that the bill contains a number of elements of significant concern. Most importantly, I have great concerns about the bill as it relates to juveniles or offences committed as a juvenile, the length of time given to an order and the somewhat limited scope given to magistrates when considering an application for a drug supply prohibition order [DSPO]. Proposed section 5 of the bill provides that such an order can be made against any person over the age of 18 who has been convicted of a serious drug offence at any time in the previous 10 years. I have concerns about the 10?year time frame and will return to that matter later, but I am strongly of the belief that juveniles should be excluded from the scheme, or crimes committed by someone as a juvenile should be excluded from the scheme.
I share the concerns held by others, including the Law Society of New South Wales, that this provision appears to be a significant overreach, particularly as it relates to the definition of a trafficable quantity of drugs. I note that this definition has been the subject of some debate for many years. For example, six MDMA pills might generally contain 1.25 grams of MDMA or five grams of amphetamine, which is considered a trafficable quantity. Yet in the vast majority of cases in which someone is convicted of possessing that amount of illegal drug they had it for personal use. It is my understanding that in most cases there was little or no evidence that the drug was being distributed or sold to others. That said, if we have a situation where a 17-year-old is caught at a music festival with 1.25 grams of MDMA, and that person is rightly charged and convicted, that conviction as a juvenile can be used as the sole justification for a police raid on the person's house eight, nine or 10 years later on the suspicion that they may be supplying drugs. To my mind, that is a considerable overreach.
Surely there are other mechanisms already available to police. If a 25-year-old is believed to be supplying and distributing drugs, and police have reasonable evidence of that happening, surely they do not need a court?issued DSPO based on a crime that person committed as a juvenile to search that person, raid their home or search their car. In considering an application for a DSPO in such a case a magistrate would not be required to consider that the earlier crime was committed as a juvenile. A magistrate would be allowed some discretion, but this legislation is open to unintended consequences, which I am very uncomfortable with. We have specific protections around juveniles for a reason and I believe this is an unwarranted erosion of those protections. I do understand the Government's intentions, and I am supportive of our police and the role they play in the fight against illegal drugs and their supply, but I am unconvinced that this bill provides a tool that does not already exist. There are alternative means of obtaining and/or collecting evidence.
If the threshold applied in this bill is simply that the police believe a person is likely to engage in the supply or manufacture of a prohibited drug then there are alternate ways and means of dealing with that—they do not need to rely on a previous charge, especially as a juvenile. I note that proposed section 10 (2) requires police or another applicant to advise a magistrate of alternative means or justifications for the drug supply prohibition order, but that provision specifically states that it is not an essential consideration for the magistrate. I place on record my concern that the 10-year threshold appears to be an extraordinary amount of time for a convicted person to be subject to the powers of a drug supply prohibition order. I would submit that five years might be more appropriate. We need to get the balance right between strict prohibition enforcement and the longer term and desired need for rehabilitation, particularly for someone who was a minor at the time of the offence relied upon to justify a drug supply prohibition order.
As I acknowledged earlier, while I have specific concerns with this bill which I hope the Minister will take on board, I note that it will be trialled for a period of two years with a report back to Parliament and a sunset clause after three years. I am satisfied that there is no malice intended with this bill, but there may be unintended consequences. I do believe, however, that there are enough checks and balances at this point for it to be supported as a trial. For that reason, I give it my cautious support.
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