PUBLIC ORDER AND ANTI-SOCIAL CONDUCT ACT REPEAL BILL 2002 Second Reading Speech

Northern Territory Second Reading Speeches

PUBLIC ORDER AND ANTI-SOCIAL CONDUCT ACT REPEAL BILL 2002

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, I move that the bills be now read a second time.

There are two major parts of the Misuse of Drugs Act to be dealt with by these amendments. The first part is to provide for a drug premises division in the Misuse of Drugs Act, along with necessary consequential amendments to the Residential and Commercial Tenancies Act and to the Liquor Act.

The second part deals with amendments to provide for both technical and substantive improvements to the operation of the Misuse of Drugs Act to facilitate police practices and prosecutions of drug cases in the courts. The purpose of this bill is to implement major parts of the government’s 3-point plan on drugs and drug related crime.

The drug premises division contains new powers designed to protect the community against drug dealers and manufacturers. For this government, the issue is simple. If we as a community want to combat crime, and particularly property crime, we must introduce measures to prevent and deter the manufacture and distribution of dangerous drugs. The link between drug dealers and manufacturers and organised crime is well known. Police intelligence data indicates that some drug premises operators in the Northern Territory supply drugs in exchange for stolen property, forcing those who are addicted to these drugs to steal or deal in stolen property to maintain their habit. The traffic and trade in dangerous drugs also has a significant impact on community health. The 2001 report into Illicit Drug Use in the Northern Territory identified that amphetamine and methamphetamine use is increasing, particularly amongst young people. It has further identified that intravenous use is the most common form of administration. This carries associated risks of harm from infection and the transmission of disease by shared needle contact. Of utmost concern is that those who took part in the study identified that amphetamines were relatively easy to obtain and the number of local suppliers and manufacturers had increased.

This government has always been clear on the link between drugs and crime. While in opposition, my colleagues and I consistently brought information to the House, to the Territory and across Australia to demonstrate that link. While the then Chief Minister and Attorney-General dismissed the problem as miniscule, we listened to what people were saying and brought forward a range of strategies to deliver the outcomes that Territorians want, and that is a safer community.

Dealing with drug premises orders. The bill provides for a new division 1A of the Misuse of Drugs Act, drug premises orders. The drug premises order target a particular type of drug supplier. It targets those suppliers who are able to sustain a drug business network primarily through rented premises. Police advise that dealers in these premises usually operate by having possession of small amounts of prohibited drug at one time so that they can deliberately avoid being caught with a traffickable amount. Consequently it is unlikely that they can be found guilty of an intent to supply these drugs. These dealers set up sales which allow the purchaser and other dealers to attend at the house briefly, purchase the drug and leave. If police attend the premises and charge a person, that person leaves the premises, but the business of dealing is simply taken over by the next person. The premises themselves continue by the strength of their reputation to be the drug premises. The staff of the drug premises simply turn over as they come to the attention of police. Consequently, police have been left with an operational problem concerning proper enforcement on these premises. Advice from police indicates that the same conduct occurs at certain commercial premises where the only significant commerce taking part is drug dealing.

Police also attend, on many occasions, to drug incidentals on licensed premises. The bill recognises that a manager or landlord in these circumstances cannot control the type of clientele who visit the premises, however the bill provides that some disciplinary control can and should be exercised over employees and agents by the management of the licensed premises. The new division targets suppliers, those whose occupational business it is to provide dangerous drugs. It does not target users and persons in simple possession that can be dealt with under the existing laws. The new division does not alter any of the existing powers of the police or the Director of Public Prosecutions to proceed against offenders of any type.

The bill provides that if police reasonably suspect premises are being used for the supply of drugs, police can make an application to the local court to have the premises declared drug premises. The division applies to all types of dangerous drugs. The trend nationally, and in the Territory, is that a range of drugs is available from drug premises, not just cannabis or speed or heroin alone. Drawing on the operational experience of the NT Police, the bill also provides that the quantity of the drug is irrelevant to the proceedings for a drug premises order. It is the activity supply which is targeted. There are two ways in which police may make an application. First, if there are indicators that the premises are drug premises police may rely on these indications to found the basis of an application. Those indicators are listed in section 11(c) and includes such things as whether police have been obstructed in their duties on the premises; whether persons are acting as lookouts around the premises; whether things are found on the premises indicate manufacture, supply or use of a drug; or the presence of documents, cash, persons under the influence of drugs, and the presence of drugs. If these indicators exist in a 12 month or lesser time period, the Police Commissioner may apply to the local court to have the premises declared drug premises.

The other way the premises may be declared drug premises is if police reasonably suspect that the supply of drugs is taking place from, or at the premises, and the police find dangerous drugs on the premises on three separate occasions within a 12-month period. In these circumstances, police may also make the application. There is some modification for commercial or licensed premises in the sense that the three seizures must relate to employees or agents of the management, or the landlord or owner themselves. In relation to this second type of application, police must make a record of each seizure and give each affected person a warning that, after three seizures, an application may be made for a drug premises declaration. This is one of the safeguards built into the act. Individuals are on notice, and managers may take action in relation to their agents or employees, before any further adverse action is taken.

The application made to the local court is made ex parte and on an affidavit evidence. Before the court can make an order, the court must be satisfied, on the balance of probabilities, that the premises has been used for the supply of drugs. If the court makes the declaration under section 11(m), police must make all reasonable attempts to ensure that a copy of the order is served on the owner, landlord or tenant within seven days. A drug premises order has no effect until it has been served on all affected persons, and police have affixed a notice to an entrance door advising persons about to enter, that the premises are a declared drug premises.

It is the view of the police that a number of drug houses will cease operation once steps towards the making of an order are made. It is certainly our intention that, in addition to the serious criminal consequences that flow for drug dealers and manufacturers, the operation of this legislation will have the effect of making the business of drug supply extremely unprofitable and uncomfortable for these people. It would take a truly resilient drug dealer to continue business once drug premises orders are made but, if they are resilient enough to have had an order made against the premises, a number of adverse consequences flow. First is the notice itself. Second, police may utilise all their search and seizure powers under the Police Administration Act without the need for a warrant.

A series of new offences apply to attempts by persons to interfere with police executing their duties under this path. The bill will, by clause 11(s), also provide police with the power to obtain a restraining order against a person who has committed a breach of the peace on a declared drug premises. This has been included to deal with problems identified by police, namely, that the fights and noise associated with drug premises can be difficult to deal with by those whose properties neighbor drug premises. Further, if police do find drugs in a common area of a declared drug house, the existence of the drug premises order is something the court can take into account in determining whether the person was themselves exercising control over the drug. That is, it provides an ease of proof mechanism. Anyone convicted of possession of a drug in a declared drug premises will face an aggravated penalty under the Misuse of Drugs Act.

Under consequential amendments to the Liquor Act, police may apply to the NT Licensing Commission in relation to licensed premises declared to be drug premises, to suspend the liquor license for a period of up to 14 days. Further, eviction may be made easier under consequential amendments to the Residential Tenancy Act and the Commercial Tenancies Act.

The bill does provide for persons affected by the order, such as the owner, landlord, licensee or tenant of the premises to apply to the court for the order to be revoked. The court may take into account the fact that the landlord has evicted or served a notice to quit on the tenants in deciding whether to revoke the declaration. The court is empowered to revoke the order if it is satisfied that the premises are no longer being used as drug premises.

To implement our law enforcement strategy we must be prepared to resource and provide the necessary tools to those in the front line - the police and our court system. The laws must allow the police to act with confidence to do the job the community requires of them and to result in successful prosecutions.

This bill contains further amendments to the Misuse of Drugs Act to streamline police operational responsibilities and provide the tools police require to carry out their duties. It operates by:

· inserting a new definition of ‘analyst’ to allow interstate analysts’ certificates to be tendered in the Northern Territory proceedings;

· broadening the definition of a dangerous drug to include admixtures, which are admixtures which contain legal and illegal substances together, but further expanding the definition from admixtures to a preparation or mixture of that dangerous drug which may include a substance that is not a dangerous drug and that contains any proportion of that dangerous drug;

· dealing appropriately with a preparation or mixture of substances which are of trafficable or commercial quantity;

· creating new offences relating to the possession of precursors which are used in the manufacture or production of dangerous drugs;

· creating a new offence relating to the possession of documents containing instructions for the manufacture or production of a dangerous drug, or precursor along with equipment, implements or an article used or about to be used for manufacture or production of dangerous drug or precursor;

· creating a new offence that provides an offence to possess equipment, implement or an article which has been or may be used in the production of a dangerous drug or precursor;

· providing a pre-trail destruction of dangerous drugs, precursors and dangerous substances and equipment; and

· providing for new police powers relating to detention of individuals suspected of concealing drugs on or in their body for the purpose of medical examination.

I now turn to explain each of these amendments.

Dealing with the amendment of definition of analyst. The first amendment is of a minor change to the definition of analyst. This change allows for the tendering of analysts’ certificates from interstate in Territory proceedings. In recent years there has been a increase in the number of cases where drugs have been seized in one jurisdiction and the prosecution takes place in another. Recognising the certificates supplied by the qualified analysts from any other Australian jurisdiction reduces costs by eliminating the need for re-analysis in this jurisdiction for the purposes of prosecution. It also saves significant costs in relation to airfares, accommodation expenses and appearance fees of interstate analysts having to come to the Northern Territory to give evidence.

Dealing with admixtures. The bill amends the act to provide a more realistic and effective approach to the prosecution of drug dealers. The act currently provides for prosecutions to occur based on the quantity of pure, prohibited substance in a person’s possession. It is a well known fact people who deal commercially in drugs cut the pure drug with other substances. This increases the profit from a minimal amount of the drug many times. We have brought some reality into the situation by recognising that a dealer does not sell pure drugs for profit, and a buyer does not expect to receive pure drugs in a deal. This bill amends the act to provide that a reference to a dangerous drug includes a preparation or mixture of that dangerous drug, which may include a substance which is not a dangerous drug, but contains any proportion of that dangerous drug.

Initially the definition was based on the admixture definition Section 4 of the New South Wales Drug Misuse and Trafficking Act 1985 which provided:

a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.

However, after further examination it was decided that the current definition gave a far broader definition than that of the admixture definition in the New South Wales legislation. The result of this amendment is that it is not necessary that a prosecution prove the actual amount of the particular prohibited drug contained in any substance which is the subject of the charge. Where there are two or more prohibited drugs in any substance, the charge is laid upon the more serious drug. The bill provides a stronger approach to prosecutions for possession of or dealing in quantities of prohibited substances and is consistent with my government’s strong stance against illicit drug dealing.

On the matter of precursors, documents and the equipment of manufacture, this amendment captures a person who has in their possession precursors commonly used in the manufacture or production of a dangerous drug. A precursor is a substance that is specified in the regulations. It will be an offence for a person to have in their possession documents which contain instructions on the preparation or manufacture of a precursor or a dangerous drug when these documents are found in combination with other equipment used or about to be used in the manufacture or production of a precursor or a dangerous drug.

There is also on a separate offence created for a person to possess equipment, an implement or an article which may be used or has been used in the production or manufacture of a dangerous drug or precursor. These provisions have been drafted to allow a court to use the proven fact of possession of a precursor, document or equipment as evidence indicative of an intention to use the precursor, document or equipment in the manufacture or production of a dangerous drug or precursor.

It is also important to note that the quantity of drugs involved in the manufacture process is irrelevant. The whole point of this amendment is to target all levels of manufacture, whether it involves a small amount or a very large quantity of a prohibited drug and the act of manufacturing or preparing to manufacture which attracts the penalty.

Dealing with pretrial destruction of dangerous drugs and precursors: the main aim of the pretrial destruction amendment is to act as a safety measure. There is concern that the requirement for police to hold large quantities of dangerous and decomposing drugs constitutes a danger to security and health. The amendments are also regarded as an effective anti-corruption prevention measure.

Currently part 2A of the Misuse of Drugs Act provides for pretrial destruction of exhibits that are dangerous drugs in three ways. First, police can make an application to a magistrate for an order to destroy the drug. Secondly, a police officer of the rank of commander or above can order the destruction if he or she is satisfied that there is no lawful owner and no one is to be charged in relation to the offence. Third, an officer of or above the rank of commander may order the destruction if he or she is of the opinion that a dangerous drug could not reasonably be securely retained pending a magistrate’s order.

Police have estimated that applications for pretrial destruction of drugs cost $10 000 per year. The power of police officers to order destruction is generally only used in relation to the destruction of cannabis plantations. In the case of other drugs, police are required to secure the whole quantity of the drug prior to the application to court for destruction.

Northern Territory police have at times held up to 1100 drug exhibits at one time. Some exhibits of drugs have been held for more than five years. The storage of decomposing cannabis and other drugs is a considerable health risk and requires extensive storage space. The amendments provide that the Commissioner of Police can order the destruction of a dangerous drug or precursor providing that steps are taken to ensure that the defendant is afforded natural justice.

First, a minimum of three samples are taken of the property seized. The samples must provide a true representation of the nature of the property taken. Secondly, a person who has been charged or will be charged with an offence has been notified of his or her right to have the sample independently analysed. Further, there are the normal chain of evidence requirements in place to ensure that evidence is properly documented by the police.

Section 29 of the Misuse of Drugs Act already provides that the production of an analyst’s certificate is prima facie evidence of the results of the analysis and the identity and the quantity of the drug. Therefore, if there is any dispute regarding these matters, the analyst’s certificate can be conclusive evidence, especially if no evidence is offered to the contrary. Ultimately, it will be for the court to decide whether the analyst certificate is conclusive evidence of the facts alleged.

On the matter or pretrial destruction of dangerous substances and equipment, these amendments are aimed primarily at decreasing the risk to police of exposure to dangerous chemicals used in the manufacture of drugs. Although these substances are not generally drugs or illegal substances in themselves, they may still pose a risk to safety when stored or handled. The provisions have also been extended to cover equipment contaminated with such substances. Similar safeguards have been put in place to ensure a defendant is afforded procedural fairness. A sample of the dangerous substance, if practicable, is taken to enable the defendant to independently analyse the sample. All reasonable steps are taken to notify the defendant of this right.

Madam Speaker, the amendments contained in this bill assist in controlling the health and security risks associated with the storage of large quantities of perishable and dangerous goods, while ensuring that defendants are provided with procedural fairness. They will result in more efficient court procedures for drug offences, and provide for uniformity of legislation with regard to prosecutions for commercial dealing in illicit drugs.

Regarding the medical examination of detainees. The Northern Territory police already have extensive powers of examination and search under section 145 of the Police Administration Act. This existing power allows a member of the police force to arrange a medical examination on a person in custody on a charge if the member believes that, on reasonable grounds, the procedure may provide evidence relating to an offence. This amendment will provide police with the power to detain a suspect if they reasonably suspect that the person may be concealing a suspicious substance on or in their body. The detention is to enable police to arrange for a medical and dental examination of the person within a reasonable time by an appropriately qualified medical practitioner. The amendment allows use of the most modern technology available, providing that the examination may be carried out as unobtrusively as possible, by x-rays, magnetic resonance imaging, ultrasound or scan.

Moving now to the Public Order and Anti-Social Conduct Act Repeal Bill 2002. The purpose of this bill is to repeal the Public Order and Anti-Social Conduct Act 2001. Members will recall the debate which occurred in this House on 4 July 2001. On that date, the standing orders were suspended. During the debate, a number of my colleagues, then members of the opposition, expressed concern about the legislation. We were concerned that it was vague, and we were concerned that it duplicated, as a purely political exercise, powers that already existed within the Summary Offences Act. We were concerned that it would not address the underlying problems leading to antisocial conduct, and that Territorians were not generally agreed that this was the right thing to do. My former colleagues, the member for Barkly and the member for Arafura, both identified the fact that rather than deal with the symptoms, we should deal with the underlying social problems. The member for Nhulunbuy, the then shadow Attorney-General, spoke extensively on the flaws in this piece of legislation. I think it is worthwhile quoting from his reply. And he said:

… it is well known in this community that there are places located throughout the Territory and particularly in the suburbs of Darwin where the distribution of hard and dangerous drugs is a common occurrence. Hard drugs lead to crime. Hard drug habits lead to addicts committing crimes to feed their habit. Drug houses are magnets for illegal behaviour. Labor wants new measures to assist police to deal with drug houses. Labor believes a court should be able to declare a place known for drug distribution. Once a residence has been declared through a court process, police would have widened powers to act, particularly in relation to searching the premises. We need action on drug houses and we want and expect our police to have powers to meet this challenge.

Under the existing words in this government bill, drug houses are not included because they may often conduct their business peacefully and without commotion and will not necessarily come under notice under the provisions of this bill as it stands. Now, both the Chief Minister and the Deputy Chief Minister say that we do not have a drug problem in the Territory but the facts speak for themselves. There is a problem and it is a problem which leads to many other problems.

It’s all very well for a bill or an act to contain strong powers, but they do not mean anything without the will and resources to enforce those powers. It was the hallmark of the CLP to repeatedly introduce legislation to increase penalties and powers but, despite all their rhetoric, nothing changed. They did not have the will, they did not allocate the resources, they did nothing to address the problems, and nothing at all to address the underlying causes of these problems.
The first step in the process of dealing with these problems is by repeal of this legislation. It serves no useful purpose. This government has acted quickly to bring forward legislation to tackle the most serious problem. The Misuse of Drugs Amendment Bill fulfils this governments commitment to introduce legislation to reduce and eliminate the ability of dealers to do business through residential, commercial or liquor premises. It fulfils this government’s commitment to crack down on drug houses and those centres of supply which we know exist in our towns and neighbourhoods.

This government is committed to a law enforcement strategy of zero tolerance when it comes to drug manufacturers and suppliers. This bill creates new offences, gives the police new powers, and gives more options to courts to stop the traffic and trade in drugs, which is so harmful to our community. The amendments to the Misuse of Drugs Act to incorporate the new division of drug premises, and the associated reforms, will address these problems. Increased resourcing to the Northern Territory Police and the doubling of the Drug Squad will address these problems. The law enforcement strategy of zero tolerance on drug production and distribution will address these problems. This government is serious about serious measures to combat drug abuse and drug-related crime. Our words are backed up by the action we have taken today. I commend the bills to honourable members.

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