Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill
Page: 897
Second Reading
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [2.45 p.m.], on behalf of the Hon. John Della Bosca: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
This bill addresses the cultivation of prohibited plants by hydroponic or other enhanced indoor means and is directed towards organised commercial production using residential premises. In recent years NSW Police have detected a significant increase in the number of hydroponic cannabis operations conducted in domestic dwellings, as well as an increasing tendency for these operations to involve organised crime syndicates. Cannabis plants cultivated by hydroponic and other enhanced indoor means grow much faster than plants grown by traditional outdoor methods, and produce between five and seven times the yield. The current quantity amounts in the Drug Misuse and Trafficking Act at which maximum penalties apply for cannabis cultivation offences are based upon the yield, harvest patterns and profitability of outdoor, or "bush grown" cannabis. They are not an accurate reflection of the commerciality of hydroponic cannabis operations. This bill addresses this inequity.
Schedule 1 amends the Drug Misuse and Trafficking Act 1985. Item [1] inserts into the Act a definition of "cultivation by enhanced indoor means" in relation to a prohibited plant. The two leading methods of enhanced indoor cannabis cultivation—hydroponics and aeroponics—are covered by the definition.
Item [16] inserts a new plant category into schedule 1 of the Act entitled "Cannabis plant cultivated by enhanced indoor means", with the commercial and large commercial quantities being set at levels five times lower than for outdoor cannabis, to reflect the much higher yields produced by this method. This means that existing maximum penalties for cultivation offences involving commercial and large commercial quantities will cut in at these lower levels in respect of cannabis cultivated by enhanced indoor means in order to reflect the commerciality of operations of this size.
The bill makes no change to existing small and indictable cannabis quantities, with current maximum penalties continuing to apply in these cases.
Item [5] creates a new offence targeting the enhanced indoor cultivation of a prohibited plant for a commercial purpose. The offence will be available in cases involving not less than the small quantity and less than the new commercial quantity for enhanced indoor cultivated cannabis (5-49 plants). The new offence recognises that there may be enhanced indoor operations within this range that produce commercial yields for the purpose of sale, but that there may also be home growers who cultivate this number of plants for their own personal use. As a result, the offence will require the prosecution to prove a 'commercial purpose', which will require proof of intention to sell any of the plants or its products, or proof of a belief that another person intends to do so. The new offence will carry the same maximum penalty as a cultivation offence involving a commercial quantity—that is, $385,000 and/or 15 yrs imprisonment.
Item [8] introduces offences into the Act with respect to the enhanced indoor cultivation of prohibited plants in the presence of children. The aggravated offences take the same form as those included in the recent Drug Misuse and Trafficking Amendment Bill 2005, and recognise the inherent risks to children of exposure to the hydroponic process, such as fire, electrocution, extreme heat, dangerous chemicals, insecticides and fumes as well as toxic gases and airborne bacteria. Maximum penalties for the aggravated offences will be 20 per cent higher than for existing offences.
The bill also amends the drug premises provisions of the Drug Misuse and Trafficking Act 1985 and the Law Enforcement (Powers and Responsibilities) Act 2002 to enable police to respond effectively to the clandestine and highly organised criminal activity associated with commercial hydroponic cannabis operations. Item [13] extends the definition of "drug premises" to include "premises used for the unlawful commercial cultivation by enhanced indoor means of any prohibited plant". The current indicia in section 36W of the Drug Misuse and Trafficking Act that assists the court in determining whether a particular premises is in fact a drug premises will also be amended to include items specific to the enhanced indoor cultivation of cannabis and other prohibited plants.
Due to the widespread practice among organisers of hydroponic cannabis operations of stealing electricity from the grid to operate their lights, ventilators and other equipment, the bill also amends the Electricity Supply Act 1995 to increase maximum penalties associated with this practice.
In summary, the measures contained in the bill constitute yet another decisive response by the Government to developments in drug crime as they emerge. The new laws have been designed in a such a way as to specifically target the commercial cultivation of prohibited plants through hydroponic and other enhanced indoor means, and will ensure that maximum penalties for these offences accurately reflect the level of commerciality and criminality involved. They will also provide law enforcement with the necessary armoury to infiltrate the clandestine and highly organised criminal activity associated with operations of this nature, sending a clear message that "out of sight" will not necessarily mean "out of reach" from the law for these criminals.
I commend the bill to the House.
The Hon. DAVID CLARKE [2.46 p.m.]: The Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill is not opposed by the Opposition. Its purpose is to amend the Drug Misuse and Trafficking Act 1985 to make further provision relating to the cultivation of prohibited plants_being cannabis, coca and opium poppy plants_by enhanced indoor means, that is, hydroponics and similar indoor cultivation. The growing trade in illegal drugs is escalating to ever greater proportions. It is a trade that has a devastating effect on those who are addicted to such drugs, especially young people. It is a trade that encourages highly organised criminal elements, who largely operate this illegal industry amassing enormous profits in the process.
It is a trade that encourages, steers, and forces those who are addicted to these illegal drugs into a life of crime in order to obtain the drugs needed to satisfy their addiction. And it is a trade that saddles the community with enormous social and economic costs: the break up of families, the abuse of children, escalating levels of crime, and soaring increases in insurance premiums for those whose properties are invaded and plundered by addicts to pay for their addiction. They are the consequences of the illegal drug trade. In the past the cultivation of illegal drug plants has been based on outdoor or bush-grown cultivation, but there has been a disturbing trend in recent times towards the production of indoor-grown or hydroponically cultivate plants. It is recognised that plants grown indoors_that is, plants grown with the assistance of artificial light and hydroponic systems_grow faster and produce higher yields.
Indoor plants are noted for their higher yield—five to seven times greater than outdoor cultivation—and frequently higher potency. The growing of hydroponically produced drug plants is increasingly popular for other reasons as well. There is a perception that there is a reduced risk of detection and an increased sense of security for the producer. In 2001 the Australian Crime Commission noted in its annual drug report for that year that hydroponic cultivation is the most common method of growing cannabis for the domestic market. South Australian police reported that 90 per cent of cannabis seized in that State during the reporting period was hydroponically grown, and high rates also exist in New South Wales.
Clearly the trade in hydroponically cultivated drug plants or those produced by other enhanced indoor means is a major and growing problem. The Government has introduced this bill to deal with this problem. The bill creates a new offence where a person cultivates by enhanced indoor means, or knowingly takes part in the cultivation of by enhanced indoor means, a number of prohibited plants which is not fewer than five plants and fewer than 50 plants for cannabis plants and 250 plants for other prohibited plants, and cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose.
"Cultivating for a commercial purpose" includes cultivating the plant with the intention of selling it or any of its products or, with the belief that another person intends to sell it or any of its products. Alternative verdict provisions in the bill will enable juries that are not satisfied that a person has committed the offence the person is charged with to convict the person of a lesser offence, if they are satisfied that the lesser offence has been committed.
Penalties relating to the new offence provide, first, a fine of 3,500 penalty units, currently $385,000, or imprisonment for 15 years, or both; or, second, if the court is satisfied that the offence involved not less than the large commercial quantity applicable to the prohibited plant, a fine of 5,000 penalty units, currently $550,000, or imprisonment for 20 years, or both. There will be a 20 per cent increase in the penalty for cultivation where a child—defined as a person under 16 years of age—is present at the cultivation process or exposed to substances being stored for use in that cultivation process.
However, for reasons best known to itself, having provided for an aggravated offence where children are present, the Government provides an escape clause for the criminal cultivators of these prohibited plants if the defendant can establish that the exposure of the child to the prohibited plant cultivation process, or to substances being stored for use in that process, did not endanger the health or safety of the child. Exposing children to the cultivation of such illegal drug plants should always be seen as endangering the health or safety of the child, and this escape clause provided by the Government for these drug cultivators makes a total mockery of this aggravated form of offence.
An extended definition is given for "drug premises". Currently such premises are defined to mean any premises that are used for the unlawful supply or manufacture of prohibited drugs, and prohibited plants do not come within the definition of prohibited drugs. Consequently a new definition of "drug premises" defines such premises as:
Any premises that are used for either or both of:
1. the unlawful supply or manufacture of prohibited drugs;
2. the unlawful commercial cultivation of prohibited plants by enhanced indoor means.
The bill sets out a number of matters that a court may have regard to when determining whether the premises were being used for the unlawful commercial cultivation of prohibited plants by enhanced indoor means. These include evidence of the presence of electric lights of 250 watts or higher, fluorescent lights that combine the red and blue parts of the light spectrum, light units comprising high intensity discharge lamps, ballasts, lamp mounts and reflectors, and evidence of the presence of growing chambers. Other evidence that a court may have regard to includes the presence of literature concerned with hydroponic or other enhanced indoor cultivation methods, the presence of cannabis seeds, cut cannabis leaf or plants, or chemicals or nutrients typically used in enhanced indoor cultivation.
The courts may also have regard to electricity consumption patterns for such premises in comparison with other similar premises not used in such cultivation. Because of frequent instances of the stealing of electricity for use in the cultivation process, the Electricity Supply Act is amended to increase penalties for stealing electricity where the electricity is stolen for the purpose of cultivation.
Because of its strong and well-documented opposition to illegal drugs, the Opposition will not oppose the bill, but Coalition members are concerned that it has taken the Government such a long time before it decided to act to combat this newer form of drug production—hydroponic cultivation. It is not as if the Government has been taken by surprise on this issue. Warning bells have been ringing for some time now that indoor drug plant cultivation was escalating. As the shadow Attorney General pointed out in the other place, back in October 1999 Assistant Commissioner Clive Small wrote a report warning of escalating gang violence related to the control of the drug trade, especially the hydroponic cultivation of cannabis.
There has been a lot of buck-passing on this issue within Government circles, but the end result has been no action until now. And why suddenly, at this time, do we have this bill, which finally is an acknowledgement by the Government of a problem it had known about for years? Well, it is because there is an election pending—that's why! In its frantic desire to show it is doing something about this issue, the Government has cobbled together this bill. It is certainly a step in the right direction, but it is long overdue. We should have had a bill such as this years ago. Let us hope that it is effective. Let us hope the legislation is not filled with drafting errors brought about by the Government's haste to rush it through—a practice that is becoming far too common with this Government.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.53 p.m.]: Sadly, I do not support the bill. This is, as the Hon. David Clarke pointed out, a ramping up of penalties with one eye on the election. I do not always agree with the Hon. David Clarke; indeed, very often I do not. I do agree that a bill like this comes at a great cost to drug addicts. The cost of drug addiction to addicts is ever-increasing, and gang violence may well come from involvement in drugs. The point, however, is that the addicts suffer because of their addiction, which is a mental and physical problem. The fact that drug use is criminalised is a social construct that successive governments have put upon the use of these drugs.
For a long time now the point has been made by intelligent drug researchers that drugs have two components. The first is their pharmacology—what the drug actually does in the body of a person. Large bodies of research, on rats, guinea pigs and various other species, including humans, have resulted in conclusions about the pharmacology of drugs. The second component is the social context of the drug's use. It might be noted that when the suggestion was made to tax beverages on the basis of their alcohol content, representations were made about varying implications from alcohol in different alcoholic drinks, in that wine tends to be consumed with meals and beer tends to be consumed on the way home. Thus consumption of a certain quantity of alcohol contained in beer might have a more adverse affect on driving than would consumption of the same quantity of alcohol in wine. That is because wine is more often consumed at home and with meals, delaying the absorption of the wine into the bloodstream, reducing the peak alcohol concentration and having less of an effect on driving ability.
The main element of drug use, in its social context, is the decision to criminalise certain types of drugs. I think the only justification for criminalising drugs is that the totality of the harm of the drug to society is reduced. Criminalising some acts and continual ramping up penalties leads to offenders spending more time in gaol. This increases the price of the drug because the substance is illegal and people associated with it want a premium for taking the risk of going to gaol. That means a large number of video recorders have to be stolen and sold, or a large number of houses have to be broken into, to raise money to buy the drug. Thus we spend a lot of money on our gaols and policing, and we worry about gang shootings—all downsides of criminalising drugs. That is in a sense a construct—well intentioned perhaps—to criminalise drug use.
The criminalisation often destroys the addict's life. Someone with a personal problem, or with an experimental nature, starts on the drug, becomes addicted to it and resorts to a life of crime to get money to buy it. The amount of money needed to buy the drug is ramped up in accordance with the illegality of the drug. Users caught stealing to satisfy their habits are taken off to gaol, and their lives are ruined. So what started off as a medical weakness ends up in a life-destroying event.
In the United States of America, following what was called the Noble experiment in the 1930s, it was decided that the criminalisation of alcohol created more problems than allowing alcohol to be sold freely. Years ago some forms of gambling were prohibited. Subsequently it was decided that prohibition provided more opportunity for organised crime than did deregulating gambling. In my view, we went completely stupid on gambling. Not only did we declare gambling legal; we went further and said it was a free-for-all, and permitted advertising of it on television, allowing poker machines to spread throughout the community like confetti.
Of course, this enabled governments to profit. Even worse, it was decided to let the media barons have a stake in gambling. The end product was a huge problem. Rather than trying to minimise harm, we chose a road that changed drug use from illegal, to tolerated, to legal, and eventually to legal and advertised, making gambling intrinsic to the value of hotels and real estate—indeed, vital to the State's revenues in that the State receives about 11 per cent from the profits of this activity. That indicates the huge spectrum of attitudes we may take.
We are still at the keep-it-criminal level with drugs. However it is obvious, and it is time that the Parliament realised, that this approach is not working very well. We have decriminalised alcohol, although there are some minor restrictions on sale that are insufficient. We have decriminalised gambling, on which there is no restriction on sale and marketing. But we continue to increase and ramp up penalties on highly criminalised drugs based on the public perception that such action will reduce their use and lessen their harm—a defence that is not defensible in any rational analysis. I am bothered by the fact that the legislation is not based on any rational analysis. The Minister never says, "I am ramping up this penalty because I know that if the penalties go up, fewer people will use it, fewer people will go to gaol, and fewer people will become addicted. I have quantified this in this piece of social research." That is not likely.
We have no evidence-based legislation in this State, which is pretty poor. It is difficult enough to have evidence-based medicine, which is still being attempted and is being grafted over the concept of traditional treatments. But at least in medicine there is respect for the idea that one ought to base what one does on evidence. That does not exist in this Parliament. We continue to respond to shock jocks and anecdotes rather than social research. I know that I harp on about this, but it is extremely important that social research quantify the harm that drugs do and justify the legislation. However, the legislation does not come within a bull's roar of that definition. I quote from the Australian Drug Law Reform Foundation 10-point plan to lessen the harm of drugs, which was drawn up in 1998.
Reverend the Hon. Dr Gordon Moyes: How many times has this been in Hansard?
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Not quite as often as the legislation ramping up penalties, because I have missed a few. I am sorry about that, but I am happy to duplicate it, if it will help. The first point in the 10-point plan is to treat drug use as a health and social issue, not as a law enforcement problem; the second, to maintain penalties for unauthorised large-scale cultivation, production, transport, sale and possession of all drugs; the third, to fund equally law enforcement, education and treatment; the fourth, to provide well-funded, research-based, effective drug education for the community and schools to be developed by education and health professionals; the fifth, to remove criminal sanctions for the personal use of illicit drugs; the sixth, to regulate and tax commercial production and sale of cannabis; the seventh, to expand drug treatment and needle exchange programs to meet demand, and establish safe injecting facilities; the eighth, to adopt non-custodial sentencing options, such as drug treatment, counselling or community service orders, for those apprehended for minor drug-related offences; the ninth, to trial and rigorously evaluate a wide range of treatment options, including the medical prescription of heroin; and the tenth, to expand Australia's successful harm-reduction approach to drugs for the benefit and wellbeing of all members of the community. That is what we should do about drugs. We should not pass this type of legislation, which has absolutely no research basis to it.
Reverend the Hon. Dr GORDON MOYES [3.03 p.m.]: On the behalf of the Christian Democratic Party I speak to the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill. The object of the bill is to amend the Drug Misuse and Trafficking Act 1985 and other legislation to more appropriately prosecute the production of cannabis by hydroponic or other enhanced indoor means. The measures are aimed at organised commercial production that takes place within residences. Recently I read that the financial size of the illicit cannabis industry is as big as our nation's total gold industry, twice the size of our nation's wine industry, and three-quarters the size of our nation's beer industry. This is an astonishing fact given that we are comparing legal with illegal industries.
Clearly, law enforcement authorities have their hands full endeavouring to eliminate this illicit practice from our communities. Every now and then we hear calls from various groups that claim that because the commercial cannabis industry has become so widespread, this is sufficient reason to legalise the use of and trading in cannabis. However, I firmly believe that these calls constitute one of the great policy paradoxes of modern times, because for those who desire to have cannabis legalised, and thus, take a more relaxed and liberal attitude towards so-called "soft drugs" such as marijuana, it sits uncomfortably with their resistance towards the big-business legalised drugs of tobacco and alcohol.
This is most ironic. In my opinion, all these drugs are extremely dangerous substances and the Government must take strong and decisive measures to protect the community from them wherever possible. Just because cannabis is seen by some as a little Rastafarian and tobacco is a little multinational does not justify taking an inconsistent approach. We should place the physical and mental health of our communities at the forefront. For example, the New South Wales Health Centre for Drug and Alcohol produced a report this year entitled "Cannabis and Associated Physical and Mental Health Risks: A Survey of Research Evidence". Unlike the previous speaker who gave us some good ideas, but not much evidence, this is based upon a survey of research evidence, and found that cannabis has a detrimental effect on the cardiovascular system; when smoked, cannabis harms the respiratory and immune systems; reproductive organs can be harmed through frequent use; foetal development can be impaired; cannabis warps perception, reactions are slowed, motor skills are impaired and concentration is more difficult; and premature ageing in the area of the brain responsible for short-term memory—hippocampus—can be caused by habitual use.
Cannabis has also been linked to slowed brain development and brain damage through frequent use, particularly if consumed at a young age. Chronic use of cannabis is linked to high rates of depression, anxiety and lack of motivation in long-term users. For the past five years I have been responsible for the purchase and building of a number of mental hospitals. Until just recently I was responsible for 72 psychiatrists on my staff. In the 1980s I began to notice the strong increase in the number of young adults with schizophrenia, and I asked our psychiatrists to take note of any link between cannabis use and psychosis, particularly schizophrenia. Today, of course, this is acknowledged. These serious findings should be strongly noted. According to the Australian Crime Commission, in its illicit Australian Drug Data Report 2004-2005, the most common method of cannabis cultivation is by using hydroponics, and the majority of cannabis consumed in Australia is domestically produced. The commission makes the following point:
The cannabis market is not as sophisticated as other illicit drug markets due to the relative ease of production and potential high profits. The majority of cannabis consumed in Australia is domestically produced, with outdoor and hydroponic cultivation prolific in all states and territories. While large outdoor bush plots ranging in size from one to tens of thousands of plants remain common, the most commonly detected method of cultivating cannabis is through the use of hydroponics (or other enhanced indoor cultivation methods), usually detected within residential premises.
In 2004-05 cannabis remained widely available throughout Australia. A survey of injecting drug users in Australia described the availability of cannabis as stable, and considered cannabis as very easy or easy to obtain in all jurisdictions, with hydroponic cannabis dominating the market. Clearly, a bill that tightens the prosecution of hydroponically grown cannabis is important, and is simply not a cosmetic change in legislation. Rather, the legislation is aimed at the very heart of cannabis production, which takes place on a domestic level. I commend the Government for its initiative in refining the legislation. To make the biggest dint in cannabis production we must focus our efforts on dealing with cottage industry cannabis growers as much as we focus on breaking the back of larger and more sophisticated cartels that may operate out of large-scale venues.
It is of interest to note that cannabis drug production through hydroponics and trade is perhaps qualitatively different from other illicit drugs. Compared with naturally grown cannabis, hydroponic cultivation increases yields, shortens the time taken to produce mature plants, and allows for full year-round production. The rise of hydroponic and other enhanced indoor cultivated cannabis has revealed a problem with assessing the scale of cannabis cultivation for prosecution purposes simply by the number of plants. Currently the prosecution of cannabis production, under the current Drug Misuse and Trafficking Act, is based on whether the total number of plants that are found in a drug dealer's possession falls below thresholds of 5, 50, 250 and 1,000 plants.
But what is not considered is the number of flowering tops or bracts, called heads, in every plant, which is a good indication of the overall productivity of a crop. Hydroponic cannabis is selectively bred to contain more heads and less leaf than does naturally occurring cannabis. Given that hydroponic cultivated cannabis also grows faster in optimal conditions, the yields over time can be five to seven times that of the traditional outdoor growth. One should also note that different crops are capable of producing huge variations in the levels of the active chemical tetrahydrocannabinol [THC]. According to the National Drug and Alcohol Research Centre, the levels of THC can vary in potency from 1 per cent potency up to 20 per cent. Hydroponic methods aim to create the most productive and potent cannabis plants that are found at the top end of this scale. It is clear that 20 plants grown naturally are not equivalent to 20 plants grown hydroponically. The popularity of hydroponic cannabis among drug users due to its perceived potency has meant that the trade has become increasingly lucrative, with street values that can reach double that of naturally grown alternatives.
The production of hydroponic cannabis can be quite intensive and usually requires high supplies of electricity to maintain powerful heat-producing lights. The annual report into illicit drugs produced by the Australian Bureau of Criminal Intelligence in 2000-01 highlighted the increased problem of electricity theft by growers who steal electricity from nearby sources with specialised equipment to avoid detection by law enforcement authorities. I am pleased that the Government has acknowledged this problem of drug producers using devious methods to avoid detection by increasing the significant penalties under the Electricity Supply Act 1995. The bill amends this Act to increase maximum penalties associated with electricity use for the hydroponic cultivation of drugs. I will not exhaustively detail the exact nature of all the amendments made by the bill to the Drug Misuse and Trafficking Act.
However, it suffices to say that the amendments made by the bill include the insertion of a definition of cultivation by enhanced indoor means—the two leading methods of enhanced indoor cannabis cultivation, hydroponics and aeroponics, are covered by the definition—replacing the definition of prohibited plant to include cannabis plant cultivated by enhanced indoor means; replacing the definition of drug premises and creating new offences of cultivating prohibited plants by enhanced indoor means in quantities greater than small quantities but less than commercial quantities; and cultivating prohibited plants by enhanced indoor means in the presence of children. Maximum penalties for these new offences will be 20 per cent higher than for existing offences. Speakers in this debate who make the point that this bill is simply another way of the Government collecting revenue by increased penalties should re-examine the bill. A 20 per cent increase in penalties is not very significant over a period of years.
There are specific risks to children who are exposed to the hydroponic process, such as fire, electrocution, extreme heat, dangerous chemicals, insecticides and fumes, as well as toxic gases and airborne bacteria. However, I must draw attention to the comments made by the Legislation Review Committee in relation to the onus of proof provided in proposed section 23A. This is a matter the Government should examine closely. Proposed section 23A places the onus of proof regarding whether a child was endangered, which is the essence of the offence, on the defendant. The committee has stated:
13. The Committee notes that reversing the onus of proof is inconsistent with the presumption of innocence, which is a fundamental human right.
14. The Committee notes that while reversing the onus of proof may be appropriate in certain circumstances, proposed s 23A appears to fall outside the Commonwealth guidelines for such provisions …
16. The Committee refers to Parliament the question whether proposed section 23A trespasses unduly on the right to the presumption of innocence by reversing the onus of proof.
I await the Minister's reply to hear what the Government says in response to those comments. Lastly I make the point that South Australia, Western Australia and the Australian Capital Territory already have legislation that distinguishes between cannabis that is grown hydroponically and conventional methods. This legislation will join the host of other State legislation dealing with the issue. The Christian Democratic Party commends the bill to the House.
Ms LEE RHIANNON [3.14 p.m.]: This bill is further proof of the failings of prohibition when it comes to cannabis. The current prohibition approach can never succeed, and serves only to enrich organised crime and create criminals where none might otherwise exist. We in the Greens are fully aware of the potential health problems arising from smoking cannabis. While there is some medical disagreement about the specifics, there is no doubt that high-level use of cannabis, cannabis abuse, can create health problems. This is particularly the case when it comes to hydroponically grown cannabis. One hears differing opinions about whether hydroponic cannabis has worse health impacts than regular cannabis has, but certainly many experts are convinced that it does. This could be because of all the chemicals used—it is almost the opposite of an organic cultivation process. I certainly do not encourage cannabis use. Views on drug use are varied. Irrespective of what any of us think, cannabis use is widespread and will continue to be so.
The challenge for this Parliament should be to ensure that any harm arising to cannabis users is minimised and that health information is made fully available so individuals can make informed choices about whether to use cannabis. In that context I am pleased that this bill sets at five plants the small category definition for hydroponic plants, which is the same as for regular cannabis plants. Those who grow cannabis for personal use, whether indoors or outdoors, ought not to be treated like criminals. Many people in New South Wales grow cannabis for medical purposes, such as for relief from chronic pain and illness. For example, many cancer patients find cannabis invaluable for controlling pain. Many of those people may not have a suitable outdoors area and have no choice but to grow their plants indoors. It would be a tremendous injustice if those people were treated like criminals.
One of the numerous disappointments of the Carr-Iemma administration has been the way in which medical cannabis has dropped off the agenda. At times both the former Premier, Mr Carr, and Minister Della Bosca have spoken in support of the concept and have promised action, but that was all for nothing. It would be a compassionate step that I am sure could win public support, if explained clearly. I definitely believe that the leaders of this State have a responsibility to do that. They need the political will and courage to explain to people the benefits of the medical use of cannabis in recognition of its ability to provide relief from pain. The very fact that legislation like this bill is so frequently needed simply underscores the futility of the prohibition approach. Those who cultivate and sell commercial quantities of cannabis will always find new ways to do so because there is so much money in it.
Prohibition serves to enrich organised crime. The police and the Government can only try to keep up with new laws and new tactics, but despite short-term wins the war will always be lost. That has been obvious for many decades in Australia and North America. It is tragic that this trend continues to dominate decision makers in this State and throughout Australia. Along the way a lot of undeserving people are made into criminals. I am not talking about the Mr Bigs of organised crime—I have no sympathy for the Mr Bigs—but, rather, the individual users or minor players who get caught up in commercial cannabis operations. Often an entire suburban house that is effectively turned into a giant hydroponic factory might have had the change imposed by duress. It seems likely that because someone got into debt to maybe a loan shark, or fell behind in payment to their own drug dealer, the only way they can make good is by turning their house over for the production of hydroponic cannabis. Under this bill those people will go to gaol for a long time—yet more victims of the prohibition approach, which does not make our communities safer, save lives or provide information that would enable people to understand the real impact of drugs.
I also have to question the sense in the provisions relating to children. The bill introduces aggravated offences for cultivating hydroponic cannabis in the presence of children. Obviously I understand the health risks posed for children. Any parent who exposes his or her children to these dangers is irresponsible. But, in practice, what difference will the bill make? How many people involved in cannabis houses will actually be aware of the new aggravated offence? I suggest almost none. It seems to me that the more likely outcome will just be longer sentences for small-time operators who, by the very nature of the crime dealt with by this legislation, would be people who have children and who have been forced into cultivation under duress. The people contemplated by this legislation are much more likely to have children around than are the big-time commercial operators. What will happen to children whose parents are found guilty of the crimes referred to in the legislation?
It is time for a serious rethink of how we deal with cannabis. The prohibition status quo is enriching organised crime, wasting public money, and creating criminals whereas they might not otherwise exist. That is the plain fact of the scenario that is being played out in the drug industry under the present laws in this State, and that is what should be addressed. Making criminals richer is not the desired outcome of this legislation. No matter how much we all wish people would not abuse cannabis, we know that some will and that supply will always be abundant. Let us start minimising the harm the drugs industry is doing to our society and to too many individuals.
Reverend the Hon. FRED NILE [3.20 p.m.]: I am pleased to support the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill, which increases penalties for the cultivation of prohibited plants by hydroponic or other enhanced indoor means. The Hon. Dr Arthur Chesterfield-Evans quoted the Drug Reform Group. I asked him whether there had been any evidence to support their proposals, and he conceded that there was none. He was critical of the bill, but he admitted that there is no evidence to support the views he put forward. Obviously the Christian Democratic Party completely opposes the views presented by the Greens. I congratulate the Government on introducing this long overdue bill. There has been evidence of the use of hydroponic cultivation in the production of marijuana in this State and other States.
In South Australia hydroponic cultivation has become a major industry, as evidenced by the number of hydroponic shops that sell appropriate equipment in that State. Shops that sell equipment for hydroponic cultivation of marijuana are rapidly opening in Sydney, in some suburbs and in some country centres. The number of shops is an indication of the growth in that trade, and offers the police an opportunity of assessing this concerning development. It has been known for some years that outdoor, or bush-grown, cannabis has a THC [tetrahydrocannabinol] component of only 1 per cent. Carefully cultivated hydroponic cannabis, on the other hand, has a THC component of 20 per cent; some literature suggests that the level is more like 30 per cent. We all know that addicts use heroin to get a hit. Well, if hydroponic marijuana has a THC component of up to 30 per cent, it will certainly give a strong hit. Just like nicotine in tobacco, THC has an impact on the person consuming it.
The Hon. Christine Robertson: I have not tried that drug, Fred, have you?
Reverend the Hon. FRED NILE: I have never tried any drugs, including legal drugs. I neither drink nor smoke. I am trying to be consistent in my opposition to legal and illegal drugs. People who grow hydroponic marijuana call their product "skunk"; that is the term they use when discussing its sale. It is very expensive because of the time it takes to grow and because of its impact on the user. I am disappointed that the bill allows a minimum of five plants. People who grow marijuana hydroponically do not grow it for personal use. A genuine marijuana user grows his plants in a pot plant on the back verandah. People who set up a hydroponic system—virtually an indoor laboratory with lighting, irrigation and so on—are into the business of selling to others. Even five plants would enable a grower to sell the drug to other users. I urge the Government to review that situation and amend the provision by deleting "five" and inserting instead "one or more".
As has been said in previous debates regarding drugs, if children are present when drugs are grown hydroponically, those growing the drug should be automatically guilty of a criminal offence. There should be no defence in such circumstances. In one reported case in the inner-western suburb of Ashfield, the South East Asian Crime Squad, which specialises in investigating the hydroponic cultivation of marijuana, discovered that a husband and wife were cultivating 819 plants in four rented homes across metropolitan Sydney, in Liverpool, Fairfield, Bexley and Green Valley. Such activity is a huge problem, and I am pleased we have this important bill to deal with it.
The Christian Democratic Party supports harm prevention, not harm minimisation or harm reduction. Harm minimisation helps young people to use drugs safely, and that is going in the wrong direction completely. For the benefit of young people we must help them to get off drugs, not take the slow, soft approach of harm minimisation. In this State there has been a massive increase in mental health cases, particularly in young people, many of which are related directly to marijuana use, particularly hydroponic marijuana, which has a 30 per cent THC component. To reduce the number of people with mental health problems, we must have a major crackdown on marijuana use. We must introduce appropriate legislation and enforce it vigorously across the State. The Christian Democratic Party is pleased that the Government has introduced the bill.
The Hon. HENRY TSANG (Parliamentary Secretary) [3.57 p.m.], in reply: I thank honourable members for their contributions to the debate. I reiterate the earlier sentiments that the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill is yet another decisive response by the Government to developments in drug crime as they emerge. The Government remains vigilant in ensuring that when it acts to protect the community from the drug trade its efforts are not subverted by those who attempt to adapt their activities to fly under the radar of law enforcement. The bill specifically targets commercial operations in order to address the recent upsurge in organised crime syndicates taking advantage of the greater profit potential offered by hydroponic operations in light of the current quantity thresholds in the Act, which, as I have mentioned, are based upon outdoor-grown cannabis. The reforms will send a strong deterrent message to those criminals by ensuring that maximum penalties are an accurate reflection of the level of organised criminal activity involved in operations of this nature.
The Hon. David Clarke made a number of comments about defence being an escape clause. Why have a defence? The provision of a defence means a reversal of the onus of proof in relation to the risk of harm. Usually the prosecution has to prove every element of the offence beyond reasonable doubt. However, if a child is exposed to the cultivation process or to substances stored for that purpose, the risk of harm is assumed and the burden then shifts to a defendant to try to prove that the health and safety of the child was not endangered. The defendant must prove that on the balance of probabilities.
In most cases this will be a difficult burden to discharge. However, exposure to substances stored for use in the cultivation process may include benign substances such as water, or growing media used to support plants in place of soil, as well as fertilisers that are commonly stored and used around homes in the community without harm or danger to children. This offence is about harm to health and safety. It is deliberately broad, to make sure no-one is missed. However, because of the sweeping ambit of the offence and the seriousness of the aggravated penalties, if there is any issue at all about harm that should be resolved, it should be addressed by reversing the onus of proof and be the responsibility of the defendant. It has to be remembered that the defence relates only to the new aggravated offences, and if made out the offender still faces a 15-year or 20-year maximum penalty for cultivation where commercial or large commercial quantities are involved.
The Hon. David Clarke said earlier that the Government had taken no action until now, but that is not true. Police operations have been very successful. In 2002 the South East Asian Crime Squad alone seized 353 plants being cultivated through enhanced indoor means with a street value of $688,000. In 2003 this had increased to 2,221 plants. In 2004 a total of 11,743 plants and 71 kilograms of cut cannabis with a street value of $34 million were seized. For the period 1 January to 1 September 2005, 29,019 plants had been seized along with 209 kilograms of cut cannabis. The total street value of these seizures was $40 million. These results are impressive, but even more so when we consider the clandestine nature of hydroponic operations and the level of police intelligence required to infiltrate them. It is also significant due to the far greater yields produced by this form of cannabis. The reforms in the present bill will enable NSW Police to build upon these efforts considerably, and will ensure that the criminals behind these operations face appropriate punishment. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.