Madam Speaker, I move that the bill be now be read a second time.
In early 2013, the Department of the Attorney-General, together with the Northern Territory Police, the Director of Public Prosecutions and the Department of Health, raised four issues relating to the operation of the Misuse of Drugs Act. These matters were the subject of comment and rulings in both the Court of Summary Jurisdiction and the Supreme Court of the Northern Territory, and were also highlighted by law enforcement officers, legal practitioners, and other professionals who work under this legislation. The issues related to:
1. the wording of the offence of supplying a Schedule 2 dangerous drug to a person in an Indigenous community, at section 5(2)(a(iv) of the Misuse of Drugs Act
2. The need for supplying a dangerous drug in an Indigenous community to be specified as an aggravated circumstance in the penalty guidelines in section 37(1) of the Misuse of Drugs Act.
3. inconsistency and duplication in Schedule 2 of the Misuse of Drugs Act, including reference to positional forms of drugs, reference to hallucinogenic properties of drugs and duplicated references, and
4. a deficiency in the wording and operation of the regulation making power under the act.
Madam Speaker, section 5(2)(a)(iv) was inserted by the Misuse of Drugs Amendment Act 2008. This act amended the supply of a Schedule 2 dangerous drug offence to include an additional circumstance, namely supply of a Schedule 2 dangerous drug to a person in an Indigenous community. The amendment prescribed a maximum of nine years imprisonment where this additional circumstance was proven. In cases where the additional circumstance is not proven, a maximum penalty of five years imprisonment applies.
The former Attorney-General, Dr Chris Burns, in this second reading speech to introduce the Misuse of Drugs Amendment Act 2008 stated that the purpose of the amendment was to:
Increase the maximum penalty for supplying Schedule 2 dangerous drugs in Indigenous communities.
He went on to further state:
On 10 March 2008, the Chief Minister announced that the government would be increasing the penalty for supplying drugs in all Indigenous communities. This bill represents a commitment that government is serious about tackling the devastating impact that alcohol and dangerous drugs are having on families in Indigenous communities.
However, the wording inserted by the Amendment Act does not achieve the aims or purposes stated in the second reading speech.
In Nunggarrgalu v Millar, an unreported decision of the Northern Territory Supreme Court on 11 January 2013, the court ruled that the wording of the provision
… to supply a person in an Indigenous community …
requires actual supply to a person to be proven.
The court agreed with the observations of her Honour, Justice Blokland, in Williams v Balchin [2012] NTSC 15 at 10 that:
Although the definition of ‘supply’ in the Misuse of Drugs Act NT includes all acts preparatory to actual supply, such as here where the drugs were transported or otherwise prepared with the purpose of supply, the circumstance of aggravation is not expressed to be generally ‘in an Indigenous community’ but rather ‘to a person in an Indigenous community’.
In practical terms, the rulings mean the third limb of the definition of supply in section 3 of the act, namely ‘act or acts done in preparation to supply’ does not apply to the additional circumstances inserted by the Amendment Act. This is despite the full definition applying to every other supply offence in the Misuse of Drugs Act.
Currently, investigators must allow a dangerous drug to be supplied ‘to a person in an Indigenous community’ before they can arrest an offender and charge him or her on the basis the additional circumstance, and hence the higher maximum penalty, is applicable. This is the case even where an offender is arrested at an airport or in a bus outside an Indigenous community and there is clear evidence of an intention to supply in the Indigenous community. This fact is clearly at odds with the intention of the Amendment Act as outlined in the second reading speech in 2008, and unduly restricts the definition of supply as it applies to this offence.
Clause 4 of the bill amends section 5(2)(a)(iv) by omitting the words ‘to a person’. This means the nine-year imprisonment maximum penalty will be applicable where offenders are apprehended outside an Indigenous community but evidence proves beyond reasonable doubt they were preparing to supply the drug in the Indigenous community. Clause 4 also amends section 5(3) of the Misuse of Drugs Act to allow a statement to be used as evidence of fact that the offence occurred in, or was to occur, in an Indigenous community. Currently, the section only allows for the statement to be used when the supply is alleged to have actually occurred in an Indigenous community.
The second issue addressed in the bill relates to an ambiguity in the penalty guidelines of the act as they apply to section 5(2)(a)(iv) offence. ‘The supply of a dangerous drug in Indigenous community’ is not prescribed as a circumstance of aggravation in section 37(1), and this fact draws into question whether the mandatory imprisonment provisions of the Misuse of Drugs Act apply when sentencing for this offence is finalised in a court of summary jurisdiction.
By way of explanation, section 22 of the Misuse of Drugs Act states that when a person is charged with an offence under section 5 and is liable to being found guilty to a maximum penalty of 14 years or less the matter may be heard summarily. If the matter is heard summarily the applicable maximum penalty available to the court of summary jurisdiction is two years’ imprisonment.
Section 37(2) states that when sentencing a person for an offence under the Misuse of Drugs Act the court must impose a sentence requiring the offender to serve actual imprisonment unless, having regard to the offender’s particular circumstances or the circumstances of the offence, actual imprisonment should not be imposed. This section applies to an offence that has a maximum penalty of seven years or more pursuant to section 37(2)(a) or where the maximum penalty is less than seven years but the offence is accompanied by an aggravating circumstance prescribed in section 37(1), section 37(2)(b) refers.
As the Misuse of Drugs Act does not prescribe ‘a supply of a dangerous drug in an Indigenous community’ as a circumstance of aggravation for the purposes of sentencing in section 37(1), the Court of Summary Jurisdiction is not required to impose actual imprisonment for the offence of supplying a dangerous drug in an Indigenous community as the maximum penalty applicable for the offence in that court after a finding of guilt is two years’ imprisonment. The issue was litigated in the Court of Summary Jurisdiction on 8 June 2012 and the oversight was highlighted by the sitting magistrate.
Drug suppliers and manufacturers are targeting Indigenous communities due to the increased profits that can be made from supplying drugs in these communities. It is essential that sentencing guidelines for this offence are clear, unambiguous, and consistently applied by all courts in the Northern Territory.
Clause 5 of this bill amends section 37(1) of the act by inserting the wording ‘an offence against section 5 that was committed in an Indigenous community’. This means the mandatory actual imprisonment provisions of section 32(2) will apply when the additional circumstance is proven.
The third matter relates to inconsistencies and duplication in the drug compounds prescribed in Schedule 2. These matters were identified during the investigation and prosecution of drug matters that have been highlighted by the Northern Territory Police, Director of Public Prosecutions, the judiciary, and legal practitioners. Given the number of amendments required, clause 9 omits the current Schedule 2 and replaces it with an updated clear and consistent Schedule 2. It is important to note that no current dangerous drugs have been legalised as a result of these amendments and, in all cases where a positional form of a compound has been removed, the base compound, if it is not already specified, has been included in the schedule.
The amendments fall into three areas; namely,
1. to remove the unnecessary duplication of dangerous drug references in Schedule 2. There are numerous examples where the same dangerous drugs have different names attributed to them in Schedule 2. This duplication has resulted in uncertainty and lack of clarity. For example, dexamphetamine and leveramphetamine and amphetamine …
Madam SPEAKER: Minister can I just ask you to pause so I can welcome …
Mr ELFERINK: I was just getting into this.
Madam SPEAKER: I know, but before the lunch break. I know you like the amphetamine, amphetamines … ____________________________
Visitors
Madam SPEAKER: Honourable members, I advise of the presence in the gallery of Year 7 from Taminmin College accompanied by Vicki Kane, Tracey Wing and Kara Kelly. On behalf of honourable members, welcome, Taminmin, and I hope you enjoy your visit to Parliament House.
Members: Hear, hear! ____________________________
Mr ELFERINK: Welcome to Parliament House. I wish I could make this more exciting for you guys. However, where was I? Here we are.
For example, dexamphetamine, leveramphetamine and amphetamine are all listed in Schedule 2. They are the same drug compound. This base compound amphetamine has remained in Schedule 2 and the two duplicate references have been removed.
2. To remove unnecessary references to positional forms of drugs in Schedule 2, positional references to drugs are used to identify chemical variations of certain base drug compounds. It is unnecessary for the positional forms of the drugs to be listed in schedules due to the operation of the analogue provisions of the Misuse of Drugs Act.
Analogue drugs are substances that are structural modifications of chemical derivatives of, or substances with a substantially similar chemical structure to, other substances prescribed in the schedule. The act is clear on the point that a reference to a dangerous drug includes reference to any analogues of it, therefore, reference to positional forms is superfluous and, potentially, creates confusion over the identification of substances.
In all cases where a positional form has been removed, the base compound, if not already listed, has been listed. In cases where the positional form has been removed and the base compound included, the quantities prescribed for the positional form have been prescribed for the base compound. For example, the references to the positional forms 3-Methylfentanyl and a-Methylfentanyl have been replaced with Methylfentanyl, the base compound for both entries. The positional form quantities have been prescribed for the new entry.
3. to remove the unnecessary reference to ‘hallucinogenic’ properties or effects of substances. A number of references to dangerous drugs in Schedule 2 are qualified by having an ‘hallucinogenic’ element, which requires the prosecution to prove that the drug has hallucinogenic effects or properties. Two issues have arisen. First, a number of references in Schedule 2 have a drug compound listed, then a secondary reference where ‘hallucinogenic properties or effects’ need to be proven. This second reference is superfluous and the bill omits them.
Second, expert witnesses cannot give thorough and definitive evidence about hallucinogenic effects, as this type of evidence is subjective, as certain drugs affect people in different ways. A number of drug advisory committees have recommended that the ‘hallucinogenic properties or effect’ references in state and territory drugs legislation be removed.
This bill omits these references, for example, the reference to:
N,N-Dimethyltryptamine and its derivatives having hallucinogenic properties
has been removed as N,N-Dimethyltryptamine is already listed in the schedule.
Clause 6 of the bill amends the regulation making power in section 43 of the act by inserting a new subsection which allows for regulations to be made to move a dangerous drug reference, and an applicable trafficable and commercial quantities, from Schedule 2 to Schedule 1 by regulation. This will have the effect of enabling the maximum penalties for offences involving prescribed dangerous drugs increased by regulation.
Currently, the regulation making power only allows drug references to be added to schedules by regulation and does not allow a reference to be omitted from Schedule 2 to enable it to be proscribed in Schedule 1.
This bill does not allow dangerous drugs to be omitted entirely from the schedules by regulations, as omissions of drugs have had the effect of decriminalising their use, supply or manufacture and this would be scrutinised by parliament. This bill does not allow for dangerous drugs to be moved from Schedule 1 to Schedule 2 by regulation as such an amendment would substantially lower the maximum penalties available and this should also be scrutinised by parliament.
Finally, clause 7 of the bill inserts a specific transitional provision for this bill. This transitional provision is identical to the transitional provision contained in the Misuse of Drugs Amendment (Methamphetamine) Bill 2013, and is necessary to preserve the current provisions of the act for all offences committed prior to the commencement of this bill.
The transitional provision also clarifies that:
… committed after commencement …
means all conduct constituting the offence must occur after the commencement. The clarification is necessary as a criminal charge may allege a course of conduct that occurred both before and after commencement of this bill.
Drug suppliers are targeting Indigenous communities due to the profits that can be made and it is imperative these offenders face the full force of the law when they are found guilty, by any court, of such offending.
Furthermore, this government is committed to ensuring the aims and purposes of the Misuse of Drugs Act are fully realised and that legislation is clear and workable for law enforcement, practitioners and the judiciary.
Madam Speaker, I commend the bill to honourable members, and I table a copy of the explanatory statement.
Debate adjourned. |
Northern Territory Second Reading Speeches