16 March 2016

2nd Reading Speech

The Hon. ADAM SEARLE (Leader of the Opposition) [5.25 p.m.]: I lead for the Opposition in debate on the Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016. The Opposition does not oppose the bill. The bill has two objects. The first is:

… to amend the Drug Misuse and Trafficking Act 1985 … and the Drug Misuse and Trafficking Regulation 2011 to update and streamline the system for the retention, analysis and destruction of prohibited plants, prohibited drugs, Schedule 9 substances … and psychoactive substances … and suspected relevant substances, that are seized or otherwise come into possession of the NSW Police Force.

The second object is to make consequential and transitional amendments and provisions. The New South Wales Bar Association has advised the Opposition that it has no issue with the legislation. A significant portion of the bill finds its ancestry in a performance audit by the New South Wales Auditor-General entitled “Managing drug exhibits and other high profile goods”, dated 28 February 2013. There was also some commentary by the Public Accounts Committee in its report No. 17/55, dated August 2014. The Auditor-General found that police managed drug exhibits well, including the recording, storage and tracking of drug exhibits. The Auditor-General dealt with other high-profile goods as well, but that is not relevant to this debate or to this bill. The Auditor-General did say that there could, nonetheless, be beneficial changes. He said:

However, there is room for improvement, mainly in regard to the effective disposal of drug exhibits and other goods, and improving efficiency by reducing the need to transport drug exhibits for testing.

Nearly 7,000, or around a third, of the drug exhibits recorded in NSW Police’s electronic tracking system EFIMS have been on hand for more than a year, and some for over five years.

The Auditor-General also said:

Some drug exhibits could pose a significant risk to the health and safety of officers, and this risk may increase over time. Police in other jurisdictions reduce the risk by documenting, analysing and destroying drug exhibits as soon as possible, with only a sample of the drug exhibit retained for court proceedings. However, in New South Wales, unlike most other jurisdictions, Police must hold onto some drug exhibits until a court order is obtained for their destruction.

The Auditor-General noted the development of legislative changes. He pointed to the tying up of police resources through the transporting of drugs by police. He said:

Some NSW Police practices are also not as efficient or cost effective as they could be. Drug exhibits, as well as the samples taken from the exhibits for analysis, are currently moved around the State, tying up NSW Police resources.

The Auditor-General pointed out that in 2011-12 more than 15,000 of the nearly 40,000 drug exhibits collected in the State were from areas that would require overnight stops in Sydney. The residual drug exhibit samples not used up in the analysis process need to be collected by officers and returned to police storage. An alternative would be for exhibits to be weighed and samples taken locally in the regions, with samples taken to Sydney only by courier and being destroyed during testing. This seems to follow the procedure in other jurisdictions. The driver behind these changes is of course not justice but costs. There is nothing wrong with reducing the costs of the legal system if that is capable of being done without reducing the quality of justice.

The response of the Commissioner of Police to the Auditor-General’s recommendation, dated February 2013, noted the proposals for legislative change made by police. Some of those proposals seem at last to have found their way into this bill. The Auditor-General estimated the cost of transporting drug exhibits at $1.2 million. That is equivalent, he said, to 1,000 police being away from front-line duties two days per annum. However, he conceded that if a trip had to be made from a regional area to Sydney then officers, as a matter of practicality, would link the trip with other tasks. The system of the destruction of drugs is complex. In some circumstances the police can destroy them; in other cases it needs a court order. It is, however, a very complex regime, which is a point that was made graphically in appendix No. 2 of the Auditor-General’s report.

Many of the considerations have found their way into this bill, including the issue of how long police retain evidence and the complex issue of how much to destroy. It is not the case that police are unable to destroy drugs without a court order. In some instances that is correct, but it is not correct in all cases. Holding onto exhibits imposes a cost by way of secure storage. Deterioration of the substance can cause health dangers, although the Auditor-General asserted that the police can destroy drugs if they are dangerous. That certainly emerges from appendix No. 2 of his report.

The bill replaces part 3A of the Drug Misuse and Trafficking Act 1985 and part 3 of the Drug Misuse and Trafficking Regulation 2011. Division 3 of the new part 3A deals with destruction of substances. New section 39G provides that a qualified police officer may order the destruction of a substance where there is no likelihood of prosecution, although it must be recorded by a means such as photographing. New section 39H provides for the destruction of prohibited plants by a qualified officer’s order, providing it has been recorded and a certificate issued identifying the plant.

Under section 39I, a qualified officer of the rank of superintendent or above may order the destruction of a non-plant substance where the exhibit is not less than the trafficable quantity. This applies to the bulk of the exhibit after a sample has been taken. The regulations provide for the taking and analysis of the sample and the destruction of the remaining amount. Transport will be by courier. There will be two samples, A and B samples. Notice of the proposed destruction of the bulk exhibit must be served on the defendant. The defendant can apply for a mass review application under new section 39M.

There are also provisions allowing the defendant or accused to request that the B sample be sent to an authorised independent analyst. New section 39J provides an authorised officer with the power to order destruction of a prohibited drug if it is less than the trafficable quantity, after the end of proceedings. New section 39K allows for destruction by police if an analyst certifies that it should be done in the interests of health and safety, after appropriate recording has occurred. Notice must be served on the defendant or accused, although this can be overridden in the interests of health and safety.

New section 39L allows immediate destruction if it cannot reasonably be kept secure. New section 39N provides a presumption on appeal relating to a substance. I note the Attorney General’s assurance that the presumption is rebuttable. The regulations in division 5 create rebuttable presumptions concerning the chain of custody of a drug exhibit. There are provisions also that effectively codify the existing trial of presumptive testing of exhibits of less than trafficable quantities. Presumptive certificates can be disputed as well. The proposals in this bill will allow substances to be destroyed, in some cases earlier than they presently are. They will relieve the need for some transportation of exhibits and replace some of the transport by police with transport by couriers. This legislation has taken three years to reach the Parliament, which I guess is pretty standard for this Government—

Mr David Shoebridge: Unless it is taking away rights.

The Hon. ADAM SEARLE: I acknowledge that interjection. Nevertheless, the Opposition supports this bill.