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Legal and Constitutional Affairs Legislation Committee - 22/08/2014

WIEDEMANN, Mr Torsten (Bodo), Private capacity

Committee met at 09:16 .

CHAIR ( Senator Ian Macdonald ): I declare open this meeting of the Senate Legal and Constitutional Affairs Legislation Committee inquiring into the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. I welcome Mr Wiedemann. Thank you very much for your submission, which we have identified as submission No. 1, and for coming along today to give evidence. I understand you have come quite a long way to do this, so we very much appreciate that.

These inquiries are proceedings of the federal parliament, so parliamentary privilege does apply. We do not ask witnesses to take an oath, but giving false or misleading information is a contempt of the parliament—not that I am suggesting that you would, but we are required to mention that as a formality. As well as that, if there is any information that you would like to give in camera, it is open to witnesses to—

Mr Wiedemann : [inaudible]

CHAIR: Okay. Well, I will not proceed along that line. These proceedings are being recorded by Hansard, and we will send you a copy of the Hansard transcript for you to check. We ask you first of all if you want to amend or add to the written submission that you have made. If you do, now is the time to mention that. As well or alternatively, we would ask you to make a short opening statement and then the committee will ask you some questions. I might say—speaking for myself, if not for my fellow committee members—that this matter is all a bit new to me, so some of my questions might be a little bit basic, but I hope you will bear with us.

Mr Wiedemann : I specialise in ethnobotany, which is the use of plants by different cultures, and also in pharmacology, which is how substances affect the body. My submission is only about schedule 1 of the proposed bill. My concerns there, as specified in my submission, are mostly about how this legislation overreaches, probably unintentionally, because it covers a lot of herbs, plants and seeds that pose no threat whatsoever. It would not make any sense to restrict those sorts of freedoms if there is no actual benefit to be gained out of that.

My first point in my submission was that the import of seeds for horticultural, agricultural and botanical purposes is unfairly affected. That is because many seeds contain psychoactive substances. They are generally not used or abusable because they are mostly toxic. There are a lot of seeds that are plain toxic, so you would not want to eat them, but they are still psychoactive under the definitions of the bill, which are very broad. That is my third point in the submission: the definition of 'psychoactive' and particularly the definition of 'significant effect' are too vague.

The second point, and it is similar to the first point, is that there are a whole lot of herbs which the public servants who wrote this bill probably assumed would be exempted under the food laws or under the therapeutic goods laws, but they are not. One species from, say, Chinese medicine might be permitted and another species from Indian medicine or from South American medicine which is closely related and has exactly the same constituents would be prohibited because it is not listed on any of the TGA lists or food lists as a permitted item.

The fourth point of my submission was that herbal products are easily controlled by existing legislation. The bill, as far as I understand, is all about the threat of emerging new substances and the speed at which they emerge—in particular, the way these substances can have minor parts of the molecule tweaked to get around the existing legislation. You cannot tweak a plant. A plant is just as it comes.

One of the things I did not elaborate on—and I am not sure whether I can add this to the submission because I only have it in note form here—in the Customs Act, once you group plants and their active ingredients together, there are only 13 groups. For example, Salvia divinorum, which is one of the more recently scheduled plants, contains salvinorin A, which is the active ingredient. When they get scheduled by Customs, they schedule one or the other or both. If you schedule a compound, it often applies to a whole lot of different plants. For example, when they scheduled dimethyltryptamine, it covers any plant that contains dimethyltryptamine. You do not schedule each plant, because they are already prohibited because of what they contain, under the Customs Act.

The Criminal Code Act only has nine. The Customs Act has 13 groups and the Criminal Code Act has nine groups of compounds or plants. Of those in the Customs Act, nine are pre-2000 and only four were scheduled between 2000 and 2014, so there is no way that any of the agencies have indicated anywhere that there is an imminent threat of new plants emerging. I think that four plants in 14 years does not show an incredibly huge threat. They were effectively scheduled. The existing law seems be working for those things. In New South Wales it was recognised that prohibiting herbs and plants would affect too many legitimate uses. In the psychoactive substances legislation in New South Wales, they completely exempted all plants and herbal products. As long as it is plant derived, it is not affected. My suggestion would be to do the same thing for this particular bill: simply exempt all plant products. It would deal with the whole problem of seeds, herbs, herbal extracts—the whole lot.

CHAIR: Thank you very much. I might ask a couple of questions to clarify a couple of things in my mind and then pass to my colleagues. Then we can come back if time allows. When you talk about plants and that it cannot be anything else, what about genetic modification?

Mr Wiedemann : It would still be the parent species. So even if you were to genetically modify one plant, it would still be the parent species. If the plant is producing an illegal substance, if you schedule that substance any plant that contains that substance will be illegal. So it does not matter whether you insert a gene from one plant into another it would still be illegal because of that substance having been scheduled.

I will just mention that there is no record of any psychoactive plants being genetically modified up to this point.

CHAIR: Could it be done?

Mr Wiedemann : Yes, but why? There would just be no point.

CHAIR: It would be done, perhaps, to import them and get under the current radar.

Mr Wiedemann : There would be great costs. There is already biosecurity legislation that covers genetically engineered material. So there is already existing legislation for that. Again, most of the time when a plant such as coca is a great threat—with the perceived threat of cocaine, coca leaf and the various other alkaloids that are in coca leaf—they just schedule cocaine and ecgonine, which are the two alkaloids in coca leaf, and that covers all coca products.

So even if you were to insert a gene from the coca plant into a tomato plant it would still be illegal.

CHAIR: You said that you had some notes there. Are they understandable to us?

Mr Wiedemann : Yes.

CHAIR: Perhaps you could table them as an addition to your submission.

Mr Wiedemann : It is an addition to part 4 of my submission.

CHAIR: Just before I hand over to my colleagues, what is your qualification or background? Is there a group of you? Is there an association or federation?

Mr Wiedemann : There is an association; it is quite a small association. But it mostly just an internet thing. There are forums and Facebook groups that appreciate ethnobotany, which is just the use of plants from different countries.

CHAIR: Are you a qualified botanist or are you just self taught?

Mr Wiedemann : I am not. I am self taught. But 15 years does add up to something.

CHAIR: But you are in contact with others in the same field as you.

Mr Wiedemann : Yes.

CHAIR: Is it a commercial business for you or—

Mr Wiedemann : I do have a herb business and we sell a lot of ethnic herbs, but it is all health related stuff. Again, the issue is that I am allowed to import one species from China but I am not allowed to import a related species from India, even though it is the same thing.

CHAIR: Thank you for the background. I was not asking it for the purpose of asking it but simply for this reason. Do you know if the government or the public service approached you or anyone like you to talk about these things? It seems to me to be a fairly specific and—

Mr Wiedemann : I have been an activist in that field for many years, so I keep abreast of legislation.

CHAIR: Has anyone asked you? Are you aware of the government asking—

Mr Wiedemann : No. I just made my submission and then I was approached to appear.

CHAIR: We are a committee of the parliament; we are not the government.

Mr Wiedemann : Right.

CHAIR: There is a distinction. We have asked you to appear. I am just wondering whether you or anyone like you was consulted by the government in what seems to me to be a highly technical area.

Mr Wiedemann : Absolutely not.

CHAIR: On your Facebook page or your other contacts you do not know any anybody who has been—

Mr Wiedemann : No. I know most of the people who work in this field and I am not aware of any of them having been approached.

CHAIR: Senator Di Natale is a doctor and has some idea of what you are talking about.

Senator DI NATALE: It might be worth taking a step back and providing a bit of context, because it is a very technical area. The bill, as it stands, is basically designed to capture drugs, compounds or chemicals that are imported that are produced synthetically that have a psychoactive effect—what is sometimes colloquially referred to as a 'legal high'—or compounds that are represented as an alternative to an illicit drug. That is effectively a summary of the bill. We want to stop the synthetic drugs coming in according to the way the bill is written. The way we are going to do it is by creating a definition that says anything with a psychoactive effect or anything that pretends to be an illegal drug will be captured by that definition. Am I right in saying that your concern is that the definition of 'psychoactive effect' is so broad that it could capture a whole lot of health related compounds, and potentially stop those compounds from being imported, and therefore being sold to people who may be provided with some health benefit?

Mr Wiedemann : Yes, absolutely. The people who wrote the bill obviously relied on the fact that the TGA would have captured all possible health compounds, or health herbs, and, by the list that the TGA produce, they would be exempt from the legislation. The problem is that is not the case. The TGA have no interest in permitting new herbs. They are very recalcitrant in actually allowing new herbs, or alternatives to existing herbs, to be added to therapeutic products. Anybody wanting to import those sorts of products will already fall foul of the new bill.

Senator DI NATALE: So anything that is not captured by the TGA—for most herbs if someone puts an application in to the TGA, the TGA says yes you can import it, you can sell it—

Mr Wiedemann : There is actually already a list—both the schedules from the TGA and what is called the 'listable ingredients list'.

Senator DI NATALE: Yes.

Mr Wiedemann : Those two lists by the TGA are basically the exemptions that fall under this.

Senator DI NATALE: So anything not captured by the TGA process is basically subject to being captured by these definitions?

Mr Wiedemann : Yes.

Senator DI NATALE: Give me an example of some of the things that might be captured?

Mr Wiedemann : I actually gave some examples in the submission in section 2, for example, under 'wormwoods'. We use wormwood in European medicine. There are Chinese wormwoods which are used for antimalarial compounds. There are about four or five different ones listed on the TGA list, but there are a couple of hundred species around the world, all with different flavours and slightly different effects. All the rest of them would be illegal, so any culture that uses a different type of wormwood now will not have access to that species.

Senator DI NATALE: Because it potentially has a psychoactive effect, even though it is not used for that purpose?

Mr Wiedemann : Yes. Exactly.

Senator DI NATALE: It is used for another purpose—you are describing it as an antimalarial. They will not have access because it is not listed on the TGA list?

Mr Wiedemann : Yes, that is right. Part of the problem is that the bar for psychoactive effect has been set so low by the memorandum to the bill.

Senator DI NATALE: Yes.

Mr Wiedemann : They give one example—I think it is the 'Rebecca' example—where she is importing an energy drink. It actually says this drink would be illegal if it were not for the fact that it is already listed under the food legislation. It basically says anything that is caffeinated would be illegal—

Senator DI NATALE: So there is a specific exemption for caffeine in the bill is there not?

Mr Wiedemann : Yes. That is right.

Senator DI NATALE: But it would otherwise be captured—

Mr Wiedemann : But that would only be for the pure caffeine, so this would be called 'caffeinated products'. One of my other examples—

Senator DI NATALE: Just to stop you there, why is caffeine captured under the 'psychoactive' definition?

Mr Wiedemann : Because it has an effect on the central nervous system. It has a stimulating effect on the central nervous system, which is part of the very broad definition. Anything that has a sedative or stimulative effect on the central nervous system is captured by the 'psychoactive' definition.

Senator DI NATALE: You have just reiterated my point. It is such a broad definition when something like caffeine is captured. The only reason it is exempt is because we make a specific exemption for caffeine. There will be many other drugs that have a psychoactive effect. They are not used for that purpose and yet they will be banned under this definition.

Mr Wiedemann : Yes. For example, there is a South American tea that all South Americans drink. It is the 'national tea' in five or six different South American countries. It is called Yerba Mate. This is on the TGA lists, or possibly in the food list. In Ecuador they use a related species which has exactly the same ingredients, but it would actually be illegal because it contains caffeine and other alkaloids related to caffeine. It has exactly the same effect and exactly the same benefits, but it would be illegal. If you are an Ecuadorian who wants to keep drinking their 'national tea', you will be breaking the law in the future if this goes through.

Senator DI NATALE: Is it a definitional problem, do you think, in the way we define a psychoactive substance?

Mr Wiedemann : Yes. Part of the problem is that it says, in the definitions of psychoactive, that it has to be 'of substantial effect'. Usually 'substantial effect' you would put somewhere above caffeine. It would have to be considerably stronger than caffeine to get close to having the effects of ecstasy or speed or those sorts of things. But because they gave that Rebecca example in the memorandum, that brings the bar so much lower and so we do not know how far below caffeine it is.

Senator DI NATALE: But isn't psychoactive a very—there are people who would drink two or three cups of coffee and get very, very anxious—incredibly anxious—

Mr Wiedemann : Yes, absolutely.

Senator DI NATALE: and so isn't using a definition like 'psychoactive' very subjective?

Mr Wiedemann : Absolutely, and it is also the amount or dosage. Some people will drink one cup of tea and feel virtually nothing, other people will drink five coffees in an hour and tweak. It is definitely a big difference in dosage and effect.

Senator DI NATALE: And you are suggesting that one way, which does not deal with this definitional problem of psychoactive, is to have a blanket exemption for plants?

Mr Wiedemann : Yes, and all plant products. As I said, there is no threat there. It does not make any sense to regulate something or restrict something if there is no actual threat. Four species in 14 years does not constitute an imminent—

CHAIR: Why do you think the government has done this?

Mr Wiedemann : As I said right from the start, I think it is an oversight. I really think the public servants did not think of the overreach there. They thought, by giving the exemption for anything that the TGA has approved and anything that is approved under the food act, that there would not be any overreach in those areas. As you said before, it is a specialised subject.

Senator DI NATALE: Can you foresee any areas other than the ones you have described—what other products might be captured?

Mr Wiedemann : There are the health products, but one of the big concerns that I personally have is for plants and seeds. There are a lot of plants and a lot of seeds that are psychoactive and they have not caused any problems up to this point and they are freely available within Australia, but you will not be able to import them.

Senator DI NATALE: So why are they being imported at the moment?

Mr Wiedemann : Varieties, for example you have a submission from Dr Alistair Hay about Brugmansias, I believe. He is a Brugmansiaspecialist—

CHAIR: He is a what?

Mr Wiedemann : A Brugmansiaspecialist. It is just one particular genus of plant.

Senator DI NATALE: What is it?

Mr Wiedemann : Angel's trumpet it is called and it is just a beautiful flower. It is grown all over Australia; it is legal everywhere. It is strongly psychoactive and the seeds are also psychoactive. There are about 1,000 collectors who regularly import seeds just to get new colours, new strains because it is being bred by fanatical—

CHAIR: But if I were the mafia and I heard your evidence today, would I say, 'I'd better go and start growing some of this stuff and get the seeds'—

Mr Wiedemann : No, because 'psychoactive' does not necessarily mean 'pleasant'. The psychoactive trip from Brugmansias is a tropane trip. It is incredibly scary and very, very unpleasant.

Senator DI NATALE: It is an atropine-based substance?

Mr Wiedemann : Yes.

Senator DI NATALE: Which, to clarify, is lethal if used in the wrong concentrations.

Mr Wiedemann : Absolutely, yes.

Senator DI NATALE: So while it produces a psychoactive effect, it also produces extreme toxicity and can kill you.

Mr Wiedemann : Yes.

CHAIR: But that happens with lots of things that you can try.

Mr Wiedemann : Yes, that is the whole point.

CHAIR: Mushrooms are—but I suspect perhaps what the government is trying to do is prevent someone doing an experiment and killing themselves.

Mr Wiedemann : No, there are Brugmansias growing all over Melbourne as ornamentals and in gardens. There is no—there is a threat, but it is everywhere. The thing is that even if you were to stop all of the Brugmansias, there are so many other species of plants, including a lot of natives, that contain exactly the same alkaloids.

CHAIR: But this particular plant you are talking about is not a native.

Mr Wiedemann : No, it is not a native, but you get exactly the same alkaloids in a native Datura, which grows everywhere as a weed.

Senator DI NATALE: And it is not used for that purpose because people know if they take it they will die.

Mr Wiedemann : Sometimes people do use it, but it has been recognised previously that there is just no way of controlling it and that it is not a huge threat. It is usually kids doing it because it is free, because it is available, and they do it once. A lot of them end up in hospital and they never do it again. It has been around for a long time.

CHAIR: Perhaps we should not have had this inquiry.

Senator DI NATALE: People might learn a few things.

CHAIR: We might promote a whole new group of users.

Mr Wiedemann : There is no group of users for Brugmansia.

CHAIR: There might be after this hearing.

Mr Wiedemann : No, it is such a horrible experience that nobody does it twice.

Senator DI NATALE: Obviously your concern is around capturing a whole range of substances that I suspect are not the intent of the bill. This may be outside your area of expertise, so I am quite happy for you to move on, but do you have a view about the definition of 'psychoactive' being so broad? In fact I think when the Attorney-General's Department looked at this issue it recognised that this might be one of the problems associated with it and it talked about exploring a premarket assessment. In other words, rather than trying to capture everything at the start, almost reversing the onus of proof and having someone prove that something is safe—

Mr Wiedemann : That is exactly what it is doing: reversing the onus of proof.

Senator DI NATALE: Correct. In fact it is suggested as part of the regulation impact statement that another option may be to have a premarket assessment—in other words, to have psychoactive substances assessed before they are allowed to be imported. If they are determined to be low risk then they are allowed to be imported. I think that is what is going on in New Zealand.

Mr Wiedemann : That is exactly right.

Senator DI NATALE: That is the approach.

Mr Wiedemann : That is the model that they are trying to establish in New Zealand. The problem is that they are slow in implementing the approval phase, so there is actually no mechanism at the moment to get a psychoactive substance approved.

Senator DI NATALE: In New Zealand?

Mr Wiedemann : In New Zealand, yes. The first thing that happened was that one of the first seizures at customs was actually herbs—very mild sedating herbs, similar to chamomile or lemon balm.

Senator DI NATALE: I was going to ask about that. Things like chamomile will be captured by this if they are not on the TGA list?

Mr Wiedemann : If they are not on the TGA list.

Senator DI NATALE: A chamomile like substance that someone might put in their tea to help them relax and sleep is safe but is not included on the TGA list, so it would be captured.

Mr Wiedemann : Yes, exactly. There is a herb called Mexican dream herb which is about the same potency as chamomile, and that was one of the first things that was seized by New Zealand customs under the new legislation. That is why where you set the bar is really important.

Senator DI NATALE: That was in New Zealand. Are you saying that no substances have been approved under the New Zealand model as low risk at this stage?

Mr Wiedemann : That is right, yes. They have no mechanism for it yet. They thought they were going to have the mechanism established within a year of approving the legislation, but it has been over a year and they still do not have the mechanism.

Senator DI NATALE: So they are not doing it through their equivalent of the TGA?

Mr Wiedemann : No. It was supposed to be an independent body that is beholden to neither the health industry nor the government.

Senator DI NATALE: So basically instead of saying, 'We're going to stop all psychoactive substances,' their approach is: 'We'll set up a body. If you want to import a psychoactive substance, it has to be reviewed by this scientific body. It has to be proven to be of low risk and then we'll allow it.'

Mr Wiedemann : Yes, and the importer has to prove that it is of low risk. As the importer, you would have to have certain animal testing done. There are disputes about how far that is going to go. But at the moment they just do not have a mechanism for that.

Senator DI NATALE: In your view, would that be preferable to the approach that the government has suggested, given that it was one of the options that the government itself explored?

Mr Wiedemann : Absolutely. The science about prohibition is pretty clear that it is a failure. The only argument for prohibition up to now is—

Senator DI NATALE: Prohibition of these psychoactive substances?

Mr Wiedemann : Of any psychoactive substance. The only argument for it has always been that, if you were to remove prohibition, you would suddenly end up with higher consumption. We have two countries that have done exactly that—removing prohibition—and neither of those two countries have had higher consumption rates. In fact, the consumption rates dropped.

Senator DI NATALE: Are you talking about psychoactive or illicit substances?

Mr Wiedemann : Psychoactive and illicit substances.

Senator DI NATALE: I suppose I meant what I think are described as NPSs—new psychoactive substances. You are talking about the whole lot?

Senator DI NATALE: The whole lot. What countries are you talking about?

Mr Wiedemann : Holland and Portugal. Portugal decriminalised about 10 years ago. Their consumption of recreational drugs has gone up slightly, but their consumption of hard drugs has dropped dramatically because they have diverted a lot of the funding into treating addiction rather than criminalising people.

Senator DI NATALE: So you are suggesting that, rather than putting criminal penalties on the use of these drugs or the importation of these drugs, the other approach is to focus on the treatment of users. You are saying it does not have a significant impact on consumption.

Mr Wiedemann : That is what the statistics from those two countries say.

CHAIR: That is not the basis of your submission.

Mr Wiedemann : No. This is just a comment to you. I do also work in drug law reform and harm minimisation. That is another topic. That was not my research. The way New Zealand is dealing with the new psychoactive substances under the new approach is very interesting. Senator Di Natale mentioned that.

Senator DI NATALE: So there are a couple of options. You would suggest two changes. One is perhaps a minor change to this power that creates an exemption for all plant and plant related products.

Mr Wiedemann : Yes.

Senator DI NATALE: The second and perhaps more significant suggestion would be to recommend against the bill and to recommend a model similar to the New Zealand model which says, 'We are not going to ban the importation; we are just going to make you prove that this is a low risk.'

Mr Wiedemann : That would be my personal view, but that is not part of my submission. My submission is really only about exempting plants and herbs from the bill, which is the same as the New South Wales model. They have just exempted all plants and herbs.

CHAIR: This is a personal question again. Are you heading straight back to northern New South Wales now?

Mr Wiedemann : No. I am staying a day-and-a-half in Melbourne to do a bit of shopping.

CHAIR: I just wonder whether the drafters of this bill would not benefit from having a chat to you. But it is not for me to make those sorts of arrangements. I might just suggest that to the department when they come to see what they say.

Mr Wiedemann : I am always available by email.

CHAIR: They may well have spoken to some other experts, but you have clearly raised some issues. If you do not mind, we will pass your contact details on to the department. They may want to speak to you.

Mr Wiedemann : That is fine.

CHAIR: Thanks very much. The bottom line issue is you think we should just remove all plants and herbs.

Mr Wiedemann : Yes—the same as the New South Wales model. They have recognised the problem with having plants included.

CHAIR: What is the status of the New South Wales one? When was that last amended?

Mr Wiedemann : October.

CHAIR: October of last year?

Mr Wiedemann : Yes.

CHAIR: Within your circle of contacts, do you have any idea why the Commonwealth has overridden the New South Wales legislation?

Mr Wiedemann : I do not know. New South Wales is the only state that exempted plants and herbs. Queensland did not, for example. I believe Western Australia is drafting their legislation now, and there does not seem to be any indication that they will be exempting plants and herbs. But, again, that could just be an oversight. Queensland basically copied a United Nations document and the schedule in that, including all the errors. So I do not think they put a lot of thought into how they drafted the legislation.

CHAIR: Do you have the feeling that the New South Wales legislation had a bit more thought put into it?

Mr Wiedemann : Absolutely. How they went about it is a very new approach. The way it was written initially was very confusing. It took me almost a week to grasp it. But it was actually well written in—

CHAIR: Do you know the extent of New South Wales's consultation?

Mr Wiedemann : No, I do not.

CHAIR: They did not speak to you?

Mr Wiedemann : No.

CHAIR: Thank you very much for that. That has been very helpful.