Tanczos Nandor: Misuse of Drugs Amendment Bill (No 3) — In Committee Third Reading 
Tanczos Nandor: Misuse of Drugs Amendment Bill (No 3) — In Committee Third Reading 
[Volume:626;Page:21490] 
NANDOR TANCZOS (Green) 
: 
 I am quite pleased to take part in this debate. I was going to confine my comments strictly to Part 1 but I feel the need to rebut some of the comments made by previous speakers so I apologise if I stray a little from Part 1. The first thing I want to address is the comment made by Mr Williamson who talked about the provision of the affirmative resolution procedure for classifying drugs under the new schedule. I think the member misunderstands the process. He seems to think that it is a simple Order in Council that will be done by ministerial whim. It is the same mistake that Judy Turner made which led to her particularly distasteful amendment previously. 
The fact is that this is not a simple amendment by way of ministerial whim. It is actually an affirmative resolution procedure. It is a new procedure—maybe the member is unaware of it—and it requires a parliamentary process. It requires the matter to go to the select committee for 28 days and for it to be debated and voted on in this House. I accept that there are problems. I think there should be a requirement to consult the public because there is no requirement at the moment for either the Expert Advisory Committee on Drugs or the select committee to consult the public. The other thing that I think is a problem with the process is that there is no ability for either the select committee or the House to amend the notice of motion. I think that that is a serious problem and I think it is something that the Standing Orders need to address. If a matter comes before the House the majority of members may agree in general with the proposal but think it is not quite right and think a particular drug should be classified as a B2 instead of a B1 or as a D2 instead of a D1 if we get to those kinds of schedules. But the House has no ability to make those kinds of changes and I think that is something that needs to be addressed. 
I would like to address the amendment put forward by Judy Turner. I thought it was quite extraordinary that she got up in the Chamber told us she went through the Health Committee’s process on the bill which was pretty long—we went through the bill in a great deal of detail—and then told us she did not understand the amendment the committee has recommended. She seemed to think it was the opposite of what it was. That is not the kind of admission I would make to the Committee if I had made such a mistake but that is up to the member—she can tell us those things if she likes. And of course it is not the first time that Judy Turner has not understood the way the legislation works but that is fine. 
Judy Turner expressed concern about the use of the affirmative resolution procedure to amend the presumption of supply levels. I was actually the member who raised that issue in the committee. The Regulations Review Committee was quite clear on the matter. It stated that the affirmative resolution procedure should not be used to amend the presumption of supply unless it is in association with the classification of a drug. It stated the procedure should be restricted to those circumstances only. I was the one who reminded the committee that we should listen to that advice. The committee in the end made the decision to put in a provision that allowed the presumption of supply to be amended by affirmative resolution apart from classification in one circumstance: where the amendment was to put the presumption of supply level up. The reason is that officials told us we had a serious situation whereby the presumption of supply level was set too low. People were being convicted on supply charges when actually the drug was just for personal use. That is significant because if the drug is a class A drug the maximum penalty for supply is life imprisonment. It is a very serious thing; the maximum penalty is life imprisonment. The officials said that they needed the ability if there is clear evidence that the supply level is set too low to amend it pretty quickly and that is what the committee agreed to do. 
People say that the supply level is not a problem because if a drug is not for supply that can be proved in court. One of the difficulties with a presumption of supply is that there is a reverse onus. It is a basic undermining of the fundamental principles of justice—of being deemed to be innocent until proven to be guilty—because if a person has a certain amount of a controlled drug and it is over the presumption of supply level then that person has to prove it was for personal use. The prosecution has to provide no evidence to back up the idea that the drug is for supply except simply to state the amount. The defendant has to prove it is for personal use and I just do not understand how he or she does that. How does a person go to a court and prove that the drug he or she has is for personal use? That seems to me to be a very difficult thing to prove. I think that one of the fundamental issues with regard to the Misuse of Drugs Act as a whole is that reverse-onus issue. 
The committee received some advice about the presumption of supply issue. At first it was advised that the presumption of supply was to an evidential level of proof not a legal one which was satisfactory but the correction to that advice was that it was actually to a legal level. The difference is that an evidential burden of proof means that the assumption is that the drug is for supply but if a person can show evidence that it is not then the prosecution has to prove it is.