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Legal and Constitutional Affairs Legislation Committee
Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014
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Legal and Constitutional Affairs Legislation Committee
Collins, Sen Jacinta
Di Natale, Sen Richard
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Legal and Constitutional Affairs Legislation Committee
(Senate-Friday, 22 August 2014)
Content WindowLegal and Constitutional Affairs Legislation Committee - 22/08/2014 - Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014
COLES, Mr Anthony, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department
CROFTS, Mr Robert, Acting Senior Legal Officer, Criminal Law and Law Enforcement Branch, Attorney-General's Department
KILEY, Mr Andrew, Acting Principal Legal Officer, International Crime Cooperation Division, Attorney-General's Department
QUAEDVLIEG, Mr Roman, Deputy Chief Executive Officer, Border Enforcement, Australian Customs and Border Protection Service
Evidence from Mr Kiley was taken via teleconference—
CHAIR: I welcome representatives from the Attorney-General's Department and from the Customs and Border Protection Service. Thanks very much for joining us today, gentlemen. Customs and Border Protection have put in submission No. 14. I think I vaguely recognise the names and the faces of some of you. I suspect you have all appeared before Senate committees before, so I will not elaborate but you are aware that these are proceedings of the parliament; parliamentary privilege applies. We do not allow questions asking for opinion on matters of policy. Perhaps I should just say: officers are reminded that any claim that it would be contrary to public interest to answer the questions must be—that is not quite right, because there is no minister here. Anyhow, if there are issues that you feel uncomfortable about answering for public interest areas, let us know about it and we can talk about it at the time. Did you want to make an opening statement or would you like to amend the written submission?
Mr Coles : Yes, we have a brief opening statement. The bill contains five key measures, as you know, to improve the operation of Commonwealth criminal law. The first measure introduces a ban on the importation of new psychoactive substances, which henceforth I will refer to as NPS, to strengthen the Commonwealth's ability to rapidly respond to new and emerging illicit drugs. The second measure amends firearms trafficking offences including to introduce new international firearms trafficking offences and mandatory minimum sentences. The third measure streamlines Australia's International Transfer of Prisoners Scheme. The fourth measure clarifies that slavery offences have universal jurisdiction to ensure agencies are able to investigate and prosecute these offences wherever they occur. The fifth measure validates the Australian Federal Police's investigatory powers at certain airports.
Submissions to the committee so far have concentrated mainly on the first two measures—NPS and firearms trafficking offences—so my opening remarks will focus on those aspects of the bill. Beginning with NPS, in recent years Australian border and law enforcement agencies have encountered increasing numbers of new substances that are designed to mimic the effects of illicit drugs but which fall outside of existing controls on those drugs. This is because their chemical structure has been changed deliberately to fall outside regulatory controls that are predominantly based on listing by chemical composition. These substances are known as NPS. Currently, when officers detect these substances at the border, they have to let them through. NPS have been associated with a number of deaths and serious injuries. The speed with which these new substances are created means that manufacturers will always be one step ahead of the government if the current process of listing dangerous substances by chemical structure remains our only means of controlling them.
The measures contained in the bill seek to change this paradigm by introducing a ban on the importation of these substances, which is based on their effect, not on their chemical structure. The ban is precautionary and is intended to halt the growth of the NPS market and reduce the supply of NPS in Australia. If passed, this bill will make it a criminal offence to import these substances into Australia. The bill will also give Customs and the AFP the powers they need to stop and seize these substances and ensure they cannot be put onto the market. Where officers do seize a substance they suspect is psychoactive, it will be up to an importer to show why it should be imported. In recognition of the fact that this measure seeks to address a specific gap in the control of illicit substances, there is a long list of legitimate uses or types of substances that will not be affected by the ban, including foods, medicines and industrial chemicals, even if they may have a psychoactive effect.
In this context, a number of submitters to the inquiry have queried whether the measure will affect the legitimate importation of plants and herbs. We do not think it will. Officers will only exercise their powers where they initially suspect that a substance is an illicit drug but where subsequent testing demonstrates that it is not listed. A person importing a plant or a herb is highly unlikely to be caught up in that process. The measures will complement, not replace, existing criminal laws on illicit drugs. Stopping these substances at the border will also allow law enforcement agencies to identify new and emerging drugs, assess their harms and risks and, if appropriate, move to list them by chemical structure in the Criminal Code and the Poison Standard. Importantly, these substances will not be able to be legally imported for sale and use while this process occurs. This measure and similar bans in New South Wales, Queensland and South Australia form part of an agreed national framework to tackle NPS. The framework, which was recently endorsed by standing councils of both health and law and justice ministers, proposes a range of government actions to reduce the health impacts of NPS, including through legislation, education, health and criminal justice responses.
I will now move briefly to the firearms aspects of the bill. The bill will also amend firearms offences to introduce new offences for trafficking firearm parts and international trafficking of firearms and firearm parts. This implements the government's election commitment set out in its policy to tackle crime. The bill will introduce mandatory minimum sentences of five years imprisonment for offenders charged with these offences under the Criminal Code. The penalty will ensure that high probability offenders receive sentences proportionate to the seriousness of their offending. However, the mandatory minimum will not carry with it a specified nonparole period; nor will it apply to minors. This will supply Courts with the discretion to set custodial periods appropriate to the circumstances of the offender and the offence while also sending a clear signal about the seriousness of the offence.
CHAIR: You would have heard Ms Patten's evidence, I think. Were you here for the evidence of many of the other earlier witnesses?
Mr Coles : No.
CHAIR: First of all on the mandatory issue which you have just raised, the Law Council suggested that what you have just said there about the nonparole period should be in the explanatory memorandum. Perhaps you might like to have a look at the evidence from Mr Odgers, the senior counsel who raised those issues. The Law Council has a long-held view against mandatory sentencing. I think it is not specific to this, although he did raise an actual case where that was an issue. How would you feel if the committee recommended that what you have said there be included in the explanatory memorandum? Or do you want to think about that?
Mr Coles : We are certainly aware of those submissions and that point made in those submissions. Our view is that the law is clear on its face. The content of the explanatory memorandum is clearly a matter for the government. So I do not feel I am in a position to provide a comment on the recommendations of the committee—
CHAIR: I suspect your statement here might almost be akin to a statement in the explanatory memorandum should it come before the courts sometime. I suspect we will probably recommend to the Attorney that he include that in the explanatory memorandum.
Senator JACINTA COLLINS: The Law Council also put to us that we should clarify in this matter what circumstances or cases exist that may lead to support for the mandatory provisions. Is there any case law that suggests that there is evidence that appropriate decisions have not occurred?
CHAIR: I think Mr Odgers was saying that if there is a list of inadequate sentences could you give them to us.
Mr Coles : I will have to take it on notice. Again, I draw the committee's attention to the fact that, quite specifically, this was a measure outlined in the government's policy to tackle crime. It was specifically to impose mandatory minimums for firearms trafficking offences. But, certainly, I can take on notice to get you that information.
CHAIR: We have politicians reflecting public opinion at election time particularly. But if you could take that on notice, that would be good.
Senator JACINTA COLLINS: What are the reasons, for instance, for not complying with the Guide to framing Commonwealth offences, infringement notices and enforcement powers? The mandatory sentencing issue is not consistent with those guidelines, so we would be interested in the rationale for that.
Mr Coles : I can certainly take that on notice.
CHAIR: I think 'election commitments' might be the answer! The other issue that I particularly wanted to raise is: were any of you three gentlemen involved in putting this together?
Mr Coles : Yes.
CHAIR: I want to ask what consultations you had. A couple of pieces of verbal evidence we had from the herb growers, who are the natural herb industry, and in other submissions from that sector suggested—I think I can summarise it—that the blanket ban might have been an unintended consequence and an oversight. I was wondering what consultation you had with people who seem to know what they are talking about, and I might say that does not include me! What sort of consultation was embarked upon on that aspect of it?
Mr Coles : I will make a couple of points. One is the point I made in the opening statement, that what the Commonwealth is doing with this bill is now a part of a consensus approach to this problem which has been agreed by health and law and justice ministers. The underpinnings of that were developed by a cross-jurisdictional group of law and justice and health officials, which is the Intergovernmental Committee on Drugs. That committee oversees the National Drug Strategy. In developing what ended up being the agreed approach to NPS, one of the things that group did last year, I think, was convene a stakeholder forum, which ended up being a day down in Tasmania to talk through the various approaches to this. I do not think that the submitters you are talking about were present at that, but I am not sure, so I would have to take that on notice to confirm it. That is the first avenue. The second avenue—
Senator JACINTA COLLINS: Before you continue, could we have a list of the organisations that did attend that forum?
Mr Coles : Yes, I think we can do that. Secondly, the regulation impact statement process provided people an opportunity to give us their views on the proposal.
CHAIR: You mentioned this was the standing committee on health or whatever, but the evidence we have is that New South Wales introduced legislation—I think they said in October last year—which does exclude plant material. By those involved, that seems to be universally accepted. The comment, as I say, was made on a couple of occasions that those people involved thought that this may have been an unintended consequence. This is why I am interested (a) in what sort of consultation was had (b) how the federal legislation is different to contemporary New South Wales legislation and (c) whether we need to give some more thought to whether it was an unintended consequence insofar as the plant growers are concerned.
Mr Coles : The New South Wales approach underscores my point in that, when they introduced their legislation, I think that reflected an environment that was moving very fast. The Commonwealth government was concerned about it; certainly many state and territory governments were concerned about the issue as well. We worked quite closely with New South Wales on what they were doing and what we were doing. That included a reasonably detailed discussion of exclusions, but, inevitably, different approaches are taken in drafting. As I said, our view remains that it is highly unlikely that importers of plant substances are going to be caught up in the Commonwealth scheme, because, as I think is very clear on the face of the bill and the EM, this is about giving mainly Customs the ability to act in circumstances where they are presented with something that is trying to mimic the effect of an illicit drug. For the most part that is going to be some kind of chemical compound in that kind of form.
CHAIR: I think I can speak for the committee, but we are required to report. Do you know if there is some urgency?
We have got to ask you about the proposed amendment to the crimes amendment legislation, but are you aware of the government's timetable for this particular psychoactive bill? Is it urgent for any reason?
Mr Coles : I think it is urgent because of what it will allow Customs and the Australian Federal Police to do, and that is to act to prevent the import of these substances that may be harmful. I think that is the key imperative.
CHAIR: We have to report by 2 September. You might have to take this on notice to the Attorney-General or the minister for customs, but could we ask you, or relevant people from your department, before 2 September to have a talk to people like Mr Wiedemann and the Happy Herb Company who gave evidence—and there are other submitters—just to see if everyone is on the same page and that there are not in fact, as those people think, unintended consequences, things which you did not really mean to address but which have been addressed. If you could have a look at that by way of a question on notice and get back to us by 27 August. It would be nice, if the arguments made to us are valid—rather than the committee making a recommendation along those lines—if you were to come back to us and say, 'We have had a talk to these people, and they and we now have a common view on X,' whatever X is. Is that asking too much? Perhaps I should only ask if you can refer that to both ministers and see if that is the acceptable approach to take.
Mr Coles : I can certainly do that.
Senator DI NATALE: I accept the point that it might be unlikely, but if I were, perhaps, one of the parties that may be affected unintentionally, I would not get a great sense of comfort knowing that it is unlikely but still possible. So really my question is: is there any reason we cannot do what New South Wales has done and put in an exemption around plants and plant extracts? I do not see why we cannot include that. I do not see how, in any material way, it affects the substance of this bill if we were to proceed down this path.
Mr Coles : I think we understand what the committee is putting to us. Within reason, lots of things are possible in legislation, but as I said, I think I would like to take it on notice and consider it.
Senator DI NATALE: And not just the consultation but the substance of whether some wording to the effect of what New South Wales has done to specifically exclude plants and plant extracts.
CHAIR: It would be interesting to know what the New South Wales representative on the standing committee said about Commonwealth legislation, which is different to their own, recently introduced legislation.
Mr Coles : In the ministerial forum or at the working level?
CHAIR: Well, both, I guess.
Mr Coles : Certainly, in the workings at the officials-level forums that I attended, there was some discussion about the individual approaches being taken within each jurisdiction. I cannot recall a detailed discussion about different approaches to exclusions, but that is not to say that that did not occur.
CHAIR: As I say, the suggestion is that it was unintended and that it was one of those things that happened.
Senator JACINTA COLLINS: Mr Coles, just while we are on this point, in your opening statement you made—I cannot recall the precise words—a comment to the effect of how an officer would treat plants. Can I ask you on notice to provide us with references, either in the bill itself or the explanatory memorandum, that provide guidance for why that is so.
Mr Coles : Did you mean operational arrangements, Senator?
Senator JACINTA COLLINS: Yes. I mean your comment in your opening statement that, yes, these concerns have been raised, but an officer would be very unlikely to treat plants in that fashion. I am paraphrasing your words, but you have got them in front of you.
Mr Coles : Sure, we can certainly take that on notice.
Senator JACINTA COLLINS: We were also talking earlier about the RIS. Could we have the list of organisations that responded to the consultation in that RIS?
Mr Coles : I think we can provide that now. I can read them out to you, if that would be helpful?
Senator JACINTA COLLINS: How many are there?
Mr Coles : Six.
Mr Coles : The Plastics and Chemicals Industries Association, PaCIA; the Pharmacy Guild of Australia; the Australian Drug Law Reform Foundation, and that was Dr Alex Wodak; the Eros Association; the Happy Herb Company; and there was one from a private citizen and I have no further details on that.
Senator JACINTA COLLINS: And is it standard for A-Gs to conduct their own RISs?
Mr Coles : Yes.
Senator JACINTA COLLINS: That is all relating to this matter, thank you.
Senator DI NATALE: I have a couple more. I want to go to is the issue of psychoactive effect, and I note the submission from the Tasmanian Director of Public Prosecutions and the NT Police Force raising concerns about the difficulties around proving psychoactive effect. We heard earlier from the Eros Association that, given the paucity of data and research, it can be very difficult to prove that. Having worked in general practice, I can tell you that people will be prescribed a medicine that might be a sugar tablet and they can have hallucinations on it because of the placebo element of that particular therapy. How do you prove it? I cannot see how you can get firm legal proof or proof that would stand up in a court of law that something has a psychoactive effect—particularly for a substance with very little research.
Mr Coles : I would like to go back a step in answering that. Part of this is saying that the definition is drafted the way it is drafted because this measure quite deliberately, as I said in my opening statement, seeks to change the paradigm here. So you are asking the question not what is it, but what does it do. That is in response to all of those reasons I mapped out in terms of that losing battle in relation to the approach of chemical composition. In broad strokes in relation to psychoactivity, there are probably two things: (1) the chemical composition of what it is that you are analysing, the substance of concern and (2) existing evidence based on what effect those substances will have if ingested and just the physiological effect of those substances when they are ingested.
Senator DI NATALE: But how do you demonstrate that when you do not have an evidence base? As I said, there is a placebo element to everything and if you get given something and you are told it is going to have an effect, one-third of the community will have what they report as a psychoactive effect even though the drug does nothing. How do you prove it without the evidence base?
Mr Coles : I do not think it is a case that there is no evidence base at all, I think there is—
Senator DI NATALE: For some of these drugs there is very little.
Mr Coles : I think the response to that is that—as those exclusions that are mapped in the offences show, Australia has quite a sophisticated network of regulation for a range of substances from foods to chemicals to therapeutic goods.
Senator DI NATALE: But these are completely separate from that process.
Mr Coles : That is right. Frankly, that is exactly the kind of thing we are concerned about. If someone is importing a substance, there is a very good chance that the end use will be purchase and consumption and there is no evidence at all about the physical effects of that substance then that is something that government is concerned about.
Senator DI NATALE: But it is one thing to have a concern; it is another thing to develop an instrument that is in no way enforceable. You have basically just proved my point. You are saying there is no evidence or research it is going to be used and you are going to have to prove it has a psychoactive effect to make it illegal, but you are saying you cannot do it because there is no evidence.
Mr Coles : I do not think I said that, Senator. I think I said it is not the case that there is no evidence.
Senator DI NATALE: But for many of these substances there is no evidence.
Mr Coles : This is an emerging area—
Senator DI NATALE: A new thing comes on the market. It is imported. There is no evidence to suggest it has any particular effect. In order to ban the drug you have to prove that it has a psychoactive effect. How do you do it? Are you going to set up a separate department, have laboratories to have it tested, run the clinical trials and spend potentially hundreds of thousands of dollars to do that? What is the mechanism for doing it?
Mr Coles : You only get to that point if you are importing something that does not fall under an existing scheme.
Senator DI NATALE: But that is what this is all about. That is what the whole thing is about.
Mr Coles : That is right, but if you get to the point of having the discussion about what it is and what does it do, part of that discussion is: does it fall within one of the existing schemes?
Senator DI NATALE: I am not with you here. The whole reason we are have got a new, separate piece of legislation is because it does not fall within those schemes, so that is dealt with. That is why we are prosecuting the case, because it does not fall within existing schemes—the TGA, the Food Act et cetera. It is up to you guys to go into a court of law and prove it has a psychoactive effect. How do you do it?
Mr Coles : Clearly, we have not done it yet. We will not have an opportunity to do it until the bill is introduced.
Senator DI NATALE: Surely you must have thought about it.
Mr Coles : I do not think that is the case. I think the difficulty we have is the proposition that there is no evidence at all for these substances, and that is not—
Senator DI NATALE: We heard earlier that what happens is a laboratory in China messes around with a few molecules, someone orders it off the internet, you find some of this stuff coming in through customs and you say, 'Okay, we think it might have a psychoactive effect.' It is the first time this stuff is out there in the marketplace. What do you do? How do you prove it is a psychoactive drug?
Mr Coles : Are we talking about the offences of import or are we talking about the other aspect of the measure, which is an importer establishing the issue of psychoactivity?
Senator DI NATALE: You make a determination that this is a psychoactive drug, and you have defined 'psychoactive'. At some point someone has got to demonstrate that in fact it does have a psychoactive property. How do you do that?
CHAIR: Do you call a chemist? Do you call a psychiatrist?
Senator DI NATALE: What do you do?
Mr Coles : I think you would do all of those things. As we have said, this is about responding to new and emerging drugs. That is very clearly a challenge and we do not resile from that. But whichever model you adopt, whether you adopt the model that is being proposed here or a model similar to the model that New Zealand has implemented, at some point you have to get down to the question: what does the substance do; what effect does it have? I am not suggesting it is not difficult. I am just saying—
Senator DI NATALE: The New Zealand model has got a very clear mechanism for doing that. That is the whole point of the New Zealand model. They set up an independent group, the manufacturer of the product has to demonstrate through clinical trials or at least provide some very hard data about the effect and safety of a drug and there is a process for doing that. This proposal is content free—there is no mechanism through which to determine the psychoactive of the drug. So your contrast is a good one: the New Zealand approach has got a very clear way of dealing with it; this does not.
Mr Quaedvlieg : I would like to offer a few comments. There should be a differentiation between an importer trying to prove to Customs and Border Protection whether the substance is an NPS, and someone who has been charged with an offence in a court of law. So, whichever burden of proof you place on that, if it is in a judicial process—in a court of law—we all know that is normally to the standard of 'beyond a reasonable doubt'. I would have an expectation that there would be a large body of scientific, medical and clinical evidence provided within the judicial proceedings to deal with that particular offence.
Senator DI NATALE: That is the point: there is no evidence.
Mr Quaedvlieg : I am coming back to that.
Senator DI NATALE: I am not trying to be difficult. This is the whole problem we are trying to deal with. This stuff is new and there is no evidence base.
Mr Quaedvlieg : I understand where you are coming from. I think there is an agreement I had with you. Let's look at the issue at the operational level. If Customs and Border Protection finds a good that has come across the border and seizes it, in some cases there is going to be a very clear indication to us that that particular substance is a new psychoactive drug because it is marketed that way—it is commercially available as 'kronic' or whatever the product may be. There will be some subnarrative under the title saying, 'This will give you a legal high,' or those sorts of things. That is a fairly good indicator to us in Customs that it is potentially a new psychoactive substance and that we ought to put the onus back on the importer to demonstrate to us whether there is a risk to health or whatever that might be.
Here is where we get to the point of agreement. The capability to determine that risk is immature. We can only make those judgements, at this point in time, on the labelling of those substances. If a delegate within Customs has to make a decision on whether an importer ought to have those goods released to him or her I would, at this point in time, set a high threshold for my officers. I would require scientific, clinical evidence. Otherwise, the risk transfers to the Customs and Border Protection officer making that decision to release a substance into the community which potentially has a risk which is unknown. So your comment is right: it is an immature capability in terms of that determination.
Senator DI NATALE: There are a couple of points. You say you are going to set a high threshold and previously you have said that you think it is unlikely that other things are going to get caught up in it. If you are setting the threshold at that point there is a good chance you will capture a whole lot of stuff that is not intended to be caught. So I have serious concerns about that.
Mr Quaedvlieg : I will come to that point, but go on.
Senator DI NATALE: Ultimately, it is going to be decided in the courts.
Mr Quaedvlieg : No, because there is a provisional step. There are the criminal offences—
Senator DI NATALE: Yes.
Mr Quaedvlieg : that need to be evidenced and then contested in a court of law.
Senator DI NATALE: Yes.
Mr Quaedvlieg : That is not the Customs and Border Protection space. We are simply at a point, in the practical step, of seizing a good that comes across the border that we have a suspicion is an NPS. We will start a process which is a notification to the importer saying, 'We believe this is an NPS. The onus is now upon you to provide to us evidence that this is not psychoactive or harmful to the community.' And that is a different burden of proof.
Senator DI NATALE: How does someone prove to you that something is not psychoactive if there is no evidence?
Mr Quaedvlieg : This is where I think we agree. That is a very difficult thing to prove, because the capability for us to make that determination is quite immature. As I said, if it is clearly labelled, 'This is a psychoactive substance and it will give you a legal high that mimics ecstasy, cocaine, LSD,' then I am not going to let my officers let that into the community.
Senator DI NATALE: Sure.
Mr Quaedvlieg : But if it is unlabelled, or it is concealed, that is a very difficult thing to do . We would then have to go through a process of seeking guidance and advice from the Commonwealth Medical Officer, health officials, the TGA and various clinical evidence and we would have to determine all that.
Senator DI NATALE: It just raises alarm bells for me that we are going down a path and we have no way of resolving the answer as to whether something is psychoactive or not, and that is the substance of the legislation.
Mr Quaedvlieg : I understand your concern. I think I should refer you back to the Attorney-General's Department for that particularly component. I was giving you a practical perspective.
Mr Coles : I will come back to the substance of your concern. In terms of the offences, in a sense they will be used when appropriate. But they are really secondary to the main aim of the bill, which is to enable Customs to act in response to a substance of concern that does not fall within one of the listed elicit drugs. Then that triggers a process where, as Mr Quaedvlieg has said, in the proceedings that follow, the onus would be on the importer to establish that the goods are not a psychoactive substance. I think this is where your concern rests. What we are saying is: we accept that this is an emerging area. We do not resile from the fact that there will be challenges here. But equally concerning is: if an importer is bring something into the country and there is no apparent legitimate use for it—which there is not, because it does not fall within one of the established schemes for food or medicines or chemicals—and it is not an illicit drug, and the importer has no idea, really, what it does or the effect it will have, and there is no apparent legitimate end use, then that is a concerning situation: that those substances could be introduced into the community and no-one really understands the effect they are going to have.
Senator DI NATALE: But it might be marketed as an immune booster. It is not captured by the TGA. It might be an immune booster—there are a number of substances. Someone has to prove at some point that it is psychoactive. I just do not think there is a test here that allows for that to happen. So my point is: I agree with you on the concern around the problem. We want to ensure that people are not exposed to potentially dangerous substances. You are not getting an argument from me. So I do not think there is much point debating that specific issue. It is just about the response. What is the most appropriate response to do that? You have mentioned the New Zealand model. That is very rigorous, because it does allow for that to be tested. Under this proposed legislation, there is no test to be able to determine whether a substance falls under that definition or not.
Mr Coles : I do not want to go down into the weeds of hypotheticals, but—
Senator DI NATALE: It is a new bit of legislation. That is the whole point of doing this.
Mr Coles : This is specifically in response to the immune booster example you raised. If it is making a therapeutic claim, the reach of the Therapeutic Goods Act is pretty broad, and it may well fall within that. What we are saying—
Senator DI NATALE: There are a lot of diet pills that say they are going to make you skinny that the TGA lets through, I have to tell you! But anyway, that is another point, sorry; that is a sidetrack.
Mr Coles : Yes. So what we are saying is: the effect of this actually focuses on, in our view, quite a narrow category of product. So, for the most part—
Senator DI NATALE: 'Psychoactive' is enormously broad.
Mr Coles : It is enormously broad, but those exclusions are also very broad. For the most part, psychoactive products are going to be captured by one of those exclusions, in which case this scheme does not apply.
Senator DI NATALE: We heard about a South American tea that is consumed by a large number of people that is not captured by the exemption.
Mr Coles : And, as I have said, we will take that on notice and consider that question.
Senator DI NATALE: We have probably exhausted that. I am not sure we would get much further on that point. I just have a couple more issues. The converse, of course, is: something that purports to be—I think I used an example before—let us say, a 'natural ecstasy', but actually is just vitamin C. Under this definition, because it purports to be an illicit drug or to have the same properties as an illicit drug, that is going to be captured as well. So what is the point of doing that?
Mr Coles : I think the point of doing that is: part of the problem that these substances pose is the way that they are marketed, as legal highs. The issue here stems from the confusion amongst consumers that those kinds of misrepresentations make. For example, if you look at the New South Wales model, I think I am right in saying that that takes a very similar approach. It is something that is purporting to have a psychoactive effect. So, that aspect of the legislation is really saying that certainly the content of the substance and the effect it has is a concern, but so is just the act of purporting that something has a psychoactive effect, because that is going to cause consumers to act in a certain way that may in certain circumstances be damaging to their health.
Senator DI NATALE: But it might not be.
Mr Coles : Not in relation to the vitamin C, but—
Senator DI NATALE: There are lots of claims made, not necessarily things that I would endorse—in fact, most of the time I think people are wasting their money. But something will be sold as a natural cannabis product and it may in fact have a few herbs and spices. It is probably as good as taking a vitamin C tablet. There is nothing in there that has any psychoactive property, but people might think, 'I'm having some trouble sleeping; I'll buy that particular product, because it's making that claim and it's natural and it doesn't have those particular properties of cannabis.' But under this it would be captured, because it makes a claim to mimic the effect of an illicit drug.
CHAIR: And be caught under the consumer affairs legislation, if it is making claims that are not accurate.
Senator DI NATALE: Yes. As I said, I think there are a lot of things that need to be caught up in that.
Mr Coles : So you are right, Senator; your analysis is right. The issue there is that the government's view is that it is not appropriate for people to be importing goods to purport to mimic the effect of an illicit drug. And, as I said, the legislation takes its own approach.
Senator DI NATALE: I think that is probably a more minor concern I have. In the regulation impact statement you expressed that there were various models. Did you explore a pre-market assessment scheme the same as the model New Zealand is used?
Mr Coles : Yes, we did, as part of that. For example, different models were discussed in that stakeholder meeting I spoke about earlier. We also had discussions with colleagues in New Zealand who were familiar with their own scheme, clearly. So, we certainly did have a look at it, yes.
Senator DI NATALE: And why wasn't it adopted?
Mr Coles : Mainly because the view was that it is not appropriate to have a scheme of approved or legal substances, however you want to frame it, that mimic the effect of illicit drugs. And the other point I would make is that to implement a scheme like that is logistically difficult, costly and time consuming, and in the meantime you would have the gap that we have now, where these substances cannot be prevented from being imported, which is clearly a concern. The final point to make there is that, based on the information we have on the New Zealand scheme—and I think you referred to this earlier—as a matter of practice no substances have actually been approved under that scheme.
Senator DI NATALE: Yes, they have only just established.
Mr Coles : Further to that, though, my understanding is that there was a range of interim permits issued by the New Zealand government under the scheme that were subsequently revoked based on concerns around the health effects of the substances that those interim permits covered. I would have to caution you against taking that as set in stone. We would have to go back and check that, but that is my understanding.
Senator DI NATALE: You also say in your submission that there is a lack of data and that you think NPS use is currently and will remain an underground activity undertaken by a small minority of Australians. We heard evidence from one of the previous witnesses about a quarter of a million people having had a legal high in the preceding 12 months. Is that a small minority of Australians? I would have thought that was a pretty significant number.
Mr Coles : I guess it depends on your perspective, Senator.
Senator DI NATALE: Technically, you are right. I suppose it is a minority.
Mr Coles : Yes. I think there is a range of reliable figures in this space. I think they are probably difficult to come by. But part of what this bill is seeking to address is an acceptance that this is a growing problem. There are significant numbers of people out there who are taking these products, and that is one of the key reasons why the bill is an important measure.
Senator DI NATALE: Have you done any work to look at how it will interact with the existing illicit drug market? I think there were some reports this morning around changes to oxycodone, which is a prescription opiate, and the shift to heroin because it is in a preparation that is much more difficult for people to use illegally. What is this going to do to the cannabis market in Australia? Have you done any work on that? If people are buying this because it is sold within a legal framework, do you expect cannabis consumption to increase? Have you done any modelling or work to look at what will happen?
Mr Coles : Those kinds of issues were considered by the intergovernmental committee on drugs, which is the group I referred to earlier. It ultimately informed, as I said, what was a consensus approach on this issue. If you read the national strategy document, that regulation is only one part of the response to this. For example, education is clearly another really critical element in responding to this problem and helping people to understand the kinds of risks that they take when they take the substance. So I think there is an acceptance that there is cause and effect. But, as I said, to the extent that at the heart of this is seeking to control substances that mimic the effect of illicit drugs, the same kinds of arguments really apply here as apply to illicit drugs.
CHAIR: You heard the evidence from the Eros Association about a call to regulate these substances and have a government authority determine what is safe and what is not safe, and also I might add some interest to properly tax it, as with alcohol. The evidence suggested that these submissions have been made by the association to state and federal governments in the past and have not been acted upon. I wonder if on notice you might be able to get a comment on why it is thought that that proposal is not a good one.
Mr Coles : I certainly can, but I suspect the answer we give will be in line with what I have already said which is that at a high level the premise of this bill is that it is not appropriate to allow the importation of substances that seek to mimic the effect of illicit drugs. If I understand you correctly, what you have just put to me would be something similar to the New Zealand scheme.
CHAIR: I am not as familiar as my colleague with the New Zealand scheme and I have not followed it that closely. As I understood it, it would be another TGA sort of thing which says we will not approve this particular commodity if it has 2X of this ingredient. But if it has 1X in it our best advice is that that will not hurt anyone, but it might give you a bit of a kick or whatever you are seeking to get. Therefore, we will approve the substance with 1X but not with 2X, which then meets a clear demand. Attractively to me, it might help with the revenue. It would be similar to the TGA in its operation, I assume, but focused on this.
Mr Coles : I can certainly take it on notice but, as I said, I suspect we will largely be restating what I have already said here today. I think what you are putting to me is some kind of scheme similar to the New Zealand scheme where there is an assessment auspiced by some kind of government body, perhaps with the costs borne by the importer, with a judgement at the end of the process about the harm or otherwise of the substance of concern. We are certainly aware of that model and, as I said, we took it into account.
CHAIR: It raises the issue, which I do not necessarily agree with, of the alcohol prohibition years in America. Again there is debate, and I do not necessarily have the same view as the Eros Foundation on this, but it does raise the issue that providing something that is legally regulated and allegedly not really harmful is better than driving it all underground, without any regulation, where you could have very, very dangerous substances or backyard operators throwing in anything.
Senator DI NATALE: What side of politics is Senator Macdonald on?
CHAIR: I am making a point without necessarily agreeing with it. I will not speak for the committee, but from my point of view I think everyone is very keen on the general thrust of what is being proposed here. Certainly I am, because part of it was in my party's election manifesto. We want to work with the department to get the right result, making sure that we do not throw the baby out with the bathwater, so to speak. Perhaps that is not the right analogy. Anyhow, it would be interesting to do that. I am particularly interested in the plant prohibition thing that you spoke about.
Thanks very much for coming along and thanks for your time. I appreciate your time is valuable and we very much appreciate your evidence. If you could get us those answers we seek as soon as possible, that would be great. Thank you to Hansard and my colleagues.
Committee adjourned at 12 : 38