Picture: Atlas House

I do not rise to my feet with any illusions in proposing a change to the Misuse of Drugs Act. I know that certain members — I can almost name them ahead of time — will accuse me of being soft on crime, which I am not. They will claim that I am attempting to dismantle a system that is working. They are wrong there as well; it is not working.

Video: Parliament of Western Australia

Although I would love to take a ballpein hammer to it, I am really only proposing a small amendment that would help ensure that the law does what it was originally intended to do, and does not continue to have unintended and detrimental consequences, as is currently the case.

Members will be aware that I have taken an interest in confiscation law since taking office. They might also have read about some of the clear injustices being inflicted on innocent parties in Western Australia as a result of them. To be entirely honest, I would have liked to have been in a position to present a suite of changes today, aimed at ensuring that those innocents could no longer be targeted with impunity, amendments that would have ensured that no more little old ladies were being thrown out of their homes and onto the street by the Director of Public Prosecutions with the tacit backing of the government.

Unfortunately, the mess that is confiscation law is taking longer to untangle than I would have hoped, and so wholesale changes to the Criminal Property Confiscation Act 2000 will have to wait for another day. I would rather get them right than rush them into the chamber, but rest assured that if the government will not act, I will certainly bring forward proposals of my own. In the meantime, I want to do what I can to make the system more equitable and transparent. A person should have to actually be a drug trafficker to attract a drug trafficker declaration and the confiscations that flow from that status. Members may be surprised to hear that is not necessarily the case. I certainly was, and the Misuse of Drugs Amendment Bill 2018 is intended to correct that anomaly.

As the law currently stands, all a person needs do to be declared a “drug trafficker” is to have in their possession more than an arbitrary quantity of a given drug specified by regulation. Here in Western Australia, that is currently three kilograms of cannabis, for example, or in excess of 20 plants. I can see members doing the maths in their own heads, concluding that either of those numbers is a serious quantity of drugs. However, we need to be clear that when we are discussing a weight of cannabis, under schedule 7 of the act, we are not talking about usable cannabis; rather, we are talking about the whole plant, pulled from the ground — roots, stalk, wet soil and all.

I know of one case in which a man who had grown five plants in his back garden for personal use had those plants seized and weighed, only to find himself charged with having nine kilograms, three times the permissible limit, in his possession. That number was eventually whittled down to 2.9 kilograms of useable cannabis, but it was the headline figure that was presented in court. Alternatively, when counting the number of plants under schedule 8, it is not uncommon for even the smallest of seedlings to be counted. If it has sprouted by a matter of millimetres, it will be held against a person.

Let me come back to the case of the gentleman with the five plants, though, because it is a very informative one. If members want to inform themselves further, it was Patten & Anor v the state of Western Australia, in 2013. The defence argued, and, indeed, the DPP freely conceded, that there was no commerciality involved and only the barest minimum of supply. The accused was a fly in, fly out worker who had trouble sleeping when he was home from the mines, so he turned to cannabis as a means of self-medication. Rather than buy his drugs from a street-corner thug, he decided to grow enough for his own use. Was he in breach of the law? Yes. Was he a drug trafficker? Not under any definition I, or the majority of Western Australians would recognise.

The worst the prosecution could accuse him of was occasionally having a friend around who would bring his own cannabis, drop it into a communal pot on the table and the pair would then share it together. Again, illegal, but surely it is a stretch to call it trafficking? Unfortunately, that is just what the DPP chose to do. It asked the judge to declare the man to be a drug trafficker, and the judge, whose hands were tied by the legislation as it currently stands, had no choice but to comply. The transcript from that sentencing hearing makes for disturbing reading. I seek leave to table a copy of the relevant portion of it.

Members can inform themselves more broadly as to His Honour’s concerns. In essence though, he said, and I quote —

The legislation requires me to make an … unjust order.

There is no justice …

… I have no discretion and this is not a judicial decision.

That is a pretty damning statement from a District Court Judge. He goes on —

… I’m being asked to … make orders which bear no relationship to the offending.

I quote once more from the sentencing transcript —

… the order for him to be declared a drug trafficker was legal but unjust …

His Honour did, of course, have discretion when it came to a just and proportionate sentence. He gave the man a 12 month suspended sentence, noting once again as he did that there had been no commerciality involved. No prison time was served, because the judge did what society expected of him: he weighed the evidence and came to a nuanced, and just conclusion.

The DPP was not done, though. It might not have been successful in arguing for a prison sentence, but it now had the one piece of paper it needed — the drug trafficker declaration — to allow it to go after the man and everything he currently owned or had ever owned prior to his conviction. The DPP went after his house, his car and his savings. Nothing he or his partner owned was safe.

I do not claim to speak on behalf of other members when it comes to what is considered right and proper. I have my own standards; other members will have theirs. I am one with the sentencing judge on this, though: here we had a clear injustice; a punishment that did not fit the crime and a punishment that would almost certainly not have been inflicted upon a defendant had the court been given any degree of leeway when it came to the granting of the declaration.

This was not an isolated case. Just hours earlier, the sentencing judge referred to another case with the same unjust and disproportionate outcome, and I am aware of many others in recent months. The advice I have received is that the DPP does in fact have discretion whether it applies for a declaration in an individual case. I have forwarded that advice to the Attorney General for his consideration. It is my hope that he will share it with the DPP and encourage her to consider the circumstances of each individual case before proceeding to lodge a request.

I am enough of a realist to acknowledge that that may not happen, however. The same people who will doubtless rush to call me soft on crime will, I am sure, make similar, baseless accusations towards anyone who tries to untangle the mess that previous governments have left to us. Therefore, I introduce this simple amendment, which would allow our judges the discretion to say no. The bill does so by the simple insertion of a new section that states —

… the court is not required to declare the person to be a drug trafficker if the court is satisfied that it would be clearly unjust to do so, —

That is the making of the declaration —

having regard to the circumstances of the commission of the offence and any other matter the court considers relevant.

A further section requires that the judge provide his or her reasons for declining the application.

We trust our judiciary to see justice done on a daily basis. Blind justice is all well and good, but shackled justice is no justice at all. Let us return the discretion to those experts we appoint on the basis of their learning and ability and let us ensure that there are no further unintended consequences as a result of a badly worded and ill thought out law.

Pursuant to standing order 126(1), I advise that this bill is not a uniform legislation bill. It does not ratify or give effect to an intergovernmental or multilateral agreement to which the government of the state is a party; nor does this bill, by reason of its subject matter, introduce a uniform scheme or uniform laws throughout the commonwealth.

I commend the bill to the house and I table the explanatory memorandum.


Aaron Stonehouse MLC

Aaron Stonehouse MLC

Written by

Leader of Liberal Democrats WA


Aaron Stonehouse MLC

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