Richard Di Natale (Victoria, Australian Greens) Share this | Hansard source

I begin my statement on the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 by saying that the focus of my comments is on schedule 1—that is, the section of the bill that deals with the importation of psychoactive substances. It is important, I think, firstly to try and find some common ground and to start from that point—particularly at a moment when there is such division in our national parliament. It is important to understand that what we are trying to achieve, I am sure, is to minimise the harms associated with the use of these substances. Like the government, I am very keen to see the harms associated with new, emerging psychoactive substances—as with all illicit substances—reduced. That is the focus of my remarks.

No-one in this place understands this better than I do. During my time as a drug and alcohol clinician, I have seen people who have suffered considerable harms from drugs such as heroin, prescription drugs, cannabis, alcohol and, indeed, a wide variety of substances. So I, like the government, am very keen to see us do everything that we can to minimise the harms associated with these so-called synthetic or psychoactive substances. Where we depart is in our approach to the problem. The psychoactive substances bill is a very poorly thought through response to a very complex issue, and it is an issue that governments over successive parliaments have failed to deal with. We are still grappling with settling on the most appropriate response to minimising the harms associated with substance abuse.

If we are going to respond in a measured and sensible way, firstly we have to have a sense of the scale of the problem. The size of the problem when it comes to these substances—called variously social tonics, synthetic drugs, legal highs and so on—is enormous. There are 230,000 users of synthetic substances in Australia, according to the Australian household drug survey. I will say that again: almost a quarter of a million Australians are currently using these substances. The 12,800 units of social tonics sold in Australia had a sales value of over $692 million, with almost $70 million in GST collected from these substances alone. So it is an enormous problem.

The concern I have got is that the bill does not do anything to address the issue in a systematic, sensible and measured way. It is just another knee-jerk reaction, like reactions before it, that adds to the harms. That is the concern here. Rather than minimising the harms associated with these substances, we run the very real risk of increasing the dangers associated with these substances.

In referring to schedule 1 of the bill, I reiterate that the Greens support the other schedules in this legislation, with the exception of the introduction of mandatory minimum sentencing of five years for the offences listed in schedule 2, which are unrelated to psychoactive substances; otherwise we will not oppose any of the other measures in this bill. Schedule 1 says that for 'new psychoactive substances' there will be a system of restrictions on their importation. So it will introduce an offence into the code for importing a psychoactive substance that does not have a legitimate use, or even a substance that makes a representation that it has those effects. So it does not actually have to have a psychoactive effect; it just has to make a representation that it has a psychoactive effect. In order to implement this, the Australian Federal Police will be given increased powers to search, detain, seize and destroy these substances.

The flaws in the legislation are numerous. The first is that there is no definition of what a psychoactive substance is. There is no definition in law to determine whether a substance is psychoactive and has a psychoactive effect or does not. It makes no reference to specific ingredients in some of these substances, it does not address the question of who is using them or how they are being used and it makes no reference to whether they are of low risk or high risk. It is just a blanket prohibition on the importation of new psychoactive substances.

What is a psychoactive substance? I asked that question during the hearing into this bill, and we did not get an answer, because there is no answer. This is a lay term. There is no definition in medical practice and there is certainly no accurate definition or measurable definition in law. It seems to be that this is a case of: 'We don't know what we're looking for, but we'll know when we find it.' It is a crazy approach to what is a serious issue. The definition used in the bill about what constitutes a psychoactive substance is far too broad, it is all-encompassing, and the problem is it can potentially place innocent people at risk—innocent people who import or possess harmless substances for therapeutic reasons—and they will now face criminal prosecutions.

We heard from ethnobotanists and those people who are trained in the use of plants. They point out some of the flaws in the bill. For example, one plant species from Chinese medicine might be permitted. Another species that is used in Indian medicine or South American medicine, which might have the identical active constituent, would be prohibited because it is not listed on the TGA, unlike a plant species that is used in Chinese medicine, which may be listed through the TGA. So we are going to capture important therapeutic drugs and drugs that people use in traditional medicines.

We also heard evidence about certain teas. For example, there is a special tea that South Americans drink that would be banned under this definition, even though many of these teas are drunk for cultural reasons. They have caffeine, like ordinary tea, which is a psychoactive substance. Caffeine is a drug that produces a therapeutic effect, that in some people produces anxiety, tremors and so on. It is, by definition, a drug that has psychoactive properties, and yet some of these substances that people are bringing in, some of these herbal teas that are drunk in particular cultures, will not be allowed to be imported under this definition. Again, the Attorney-General's Department could not give a clear definition about which products would be captured and which would not, because we have no idea what their definition of 'psychoactive' actually means.

There is no process for determining whether a seized product has a psychoactive effect. How do you measure that? What is the test? There is none. We heard that there was no test, no process, no framework for when the importation of a substance was restricted, that it would be tested to determine whether it had a psychoactive property. Despite asking for that definition, all we got was that, yes, the definition was 'enormously broad' and that they will need to consider whether certain harmless products, like herbs in teas, would be included in the bill. That is all we got from the Attorney-General's Department.

Perhaps more fundamentally, and one of the concerns I have, is that we do know from the long history of illicit drug use that one of the worst ways of addressing a problem like this is to drive it underground, to allow a market to flourish that is completely unregulated and to ignore what we know is the best evidence when responding to the problem. We heard evidence from people who are currently involved in the importation and sale of these illegal synthetic substances that highlighted the size of the market, the dimension of this problem and the importance for them to allow regulation that ensures that low-risk substances, substances that produce little harm, can be used ahead of those substances which produce significant harm, which are currently now available in various fora. At the moment we have no way of distinguishing between the two. We know, for example, that we have new synthetic substances, some of which attempt to produce the effects that cannabis produces. These substances are emerging all the time. We know that they are currently legal, but we have very little information about which of those substances cause harm to people and which do not. And it is partly because previous responses targeted individual substances, which has created an environment where new and potentially more harmful, less tested substances are emerging.

My objections to the bill are that it does not seek to understand what these new substances are and the level of associated risk—they are either high-risk or low-risk substances—and that, if they are high-risk substances, the Australian community is alerted to them. Most people who use these substances do not want to hurt themselves; they do it for all sorts of other reasons, and we should be ensuring that we create a framework where people get information that alerts them to the fact that particular high-risk substances are on the market and that they are to be avoided. This is where I think the New Zealand model is very instructive. If we were to move to the New Zealand approach we would be saying that a level of regulation is necessary here. It is regulation that says, 'Let us determine, through an appropriate body, what substances are low risk so that those people who will continue to use these substances no matter what legislation we put in place'—remember, a quarter of a million Australians are currently using them—'are using them safely, and that dangerous substances are not available on the market.'

In New Zealand they have a pre-market assessment scheme. It puts the onus on the importer, saying that if you have a synthetic psychoactive substance—a 'social tonic', as the industry likes to call them—which you believe should be available for sale here, then you have to prove that it is of low risk; that consumers will not be harmed by that substance. Until you can prove that, then they will not allow the sale of that substance through any regulated framework. It is a model that Australia should follow—a pre-market assessment scheme that better recognises the challenges posed by importing the range of substances that are currently imported, some of which are low risk and some of which are high risk.

We do know that there are serious harms for those high-risk substances—there were two men who tragically died in circumstances linked to some of these substances earlier this year—but we also heard the response from Dr David Caldicott, who is an emergency medicine doctor here in the ACT and who has also published widely on the harms associated with licit and illicit drug use. He is an expert in the field. He said very clearly that some of these synthetic cannabinoids have the potential to be significantly more dangerous than the natural cannabis plant that they are supposed to mimic. Because we do not have any standards or regulation or quality control, what you end up with is a variety of substances, some of which are of high toxicity. In that respect, he is saying that there is a relationship with the illicit drug market here, and, through our response to illicit drugs, we have created a whole new market for these synthetic legal substances that as yet are available without risk of prosecution.

It is impossible to have this debate without having a broader debate about how best to minimise the risks associated with currently illicit drugs. Dr Caldicott says we need 'wiser responses to the problem of harm from drugs if these deaths are not to become a more frequent occurrence'—nothing about cracking down on importation of all drugs. He, like many others, recognises the scale of the problem, the impossibility of restricting the importation of these substances and, worse still, the unintended consequence of driving the production of a market here in Australia. What this risks doing—one of the great unintended consequences of this bill—is that, where there is currently no market for the production of these substances here in Australia, we are going to create one. We are going to create the production of some of these substances in backyard labs right around the country because we are restricting importation from overseas.

Again, that leads to uncontrolled availability of substances of unknown toxicity—a great risk. I do not want to be standing up here in the months to come, when young people are dying because they are taking what are now illegal synthetic substances that have been made here in Australia—substances of unknown toxicity—and saying: 'We knew this would happen. We knew the consequences of a piece of legislation like this—that it would lead to the consumption of more untested products, some of which will be of extremely high toxicity.' My great concern is that, in trying to solve one issue, we are going to create another issue which is much more harmful than the original problem we are trying to address.

I have to say that in the bill we are debating today schedule 1 has been amended following the Legal and Constitutional Affairs Legislation Committee majority report on this bill, and I acknowledge the work of Senator Macdonald, who was chair of that inquiry. This bill recognises that the original legislation was even more deeply flawed than the current one; that it would capture a range of plants and fungi and their extracts, all of which potentially could have a psychoactive effect. To their credit, the government did change the bill so that a person who might import a plant, like an ornamental cactus that contains a substance that might have a psychoactive effect when consumed, would no longer be committing an offence. But we need go to much more broadly. There was overwhelming evidence that plants, fungi and their extracts would have been captured by this legislation. That is why this is such a bad piece of law.

While the government has listened and did respond to some of this expert evidence, unfortunately it remains blinkered about some of the other expert evidence. I would have liked us to look more deeply at the approach taken by our colleagues in New Zealand, who have decided to take this problem head on—to recognise that the market is so huge, that people will continue to take these substances and that if they are going to do it, then they must consume substances that are of low risk.

I do understand that governments want to prevent people from being harmed by dangerous substances. It is what we want, it is what the Greens want, I am sure it is what the Labor Party wants and I am sure it is what the coalition wants. We want to reduce the harms associated with the consumption of these substances. On that we can all agree.

I do not come at this issue from some libertarian perspective like some of my colleagues in this chamber do, who suggest that people should be allowed to use these substances, that the state has no role and that we should not interfere. I think the role of the state is to minimise the harms associated with their use. This is where we disagree with the government's approach. We do not believe that the government—or the opposition, it must be said—has taken the time to examine the implications of this bill or the evidence and the lessons learned from overseas.

In opposing this bill, I say that we need a new approach. Let us look to New Zealand. Let us look at what is working over there. We have a model in place for how to better minimise the harms associated with the use of some of these substances. Let us recognise that everything we have done in this space so far around the use of psychoactive substances has been a failure, that we are no closer to the objective of reducing the harms associated with illicit drugs than we were decades ago and that we risk repeating the same problems with the use of these new so-called legal synthetic drugs or social tonics. It is indeed time for a new approach, and we look forward to the government reconsidering their position on this legislation.