Controlled Substances (Drug Offence Diversion) Amendment Bill

Extract from Hansard

Legislative Council
14 November 2000

Mike Elliott
Leader Australian Democrats
Member of the Legislative Council

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The Hon. M.J. ELLIOTT: I hope the Attorney-General feels he can answer some questions now, otherwise we will be in the position of receiving answers and wanting to proceed immediately. I had grave concerns about the bill as it was originally structured and I am not confident at this stage that the amendments have really addressed my concerns satisfactorily, and I suppose that is really what I want to explore now. We have not had any real explanation in this place as to what effect the government believes the amendments will have and what their real meaning is. I would invite the Attorney-General, even if he does it briefly now and with more substance later, to explain what he thinks the intended effects are of the amendments that have been placed on file.

When we debated this last time we did not have the Siggins and Miller report before us. I do appreciate the fact that this is one of the rare occasions the government has a report and has made it available, and I thank the Attorney-General for that. I appreciate the fact that I have had a chance to look through it. I must say that I did not find anything within this report which really justified what I perceive as a gutting of the current process. Certainly, it raises questions that need to be addressed, but many of those questions are around things like evaluation. It really makes the point that there has not been an evaluation. In so far as it raises issues of concern, they are matters that do not relate to the DAAP process itself but to issues of available resourcing, health services, and those sorts of things.

I must say that having had a copy of this report I am surprised that the Labor Party has changed its position because, on my reading of the bill, how things will work is unclear. We knew how it worked before: people were referred to DAAP. We now find that clause 4 (new section 36) talks about people being referred to a nominated assessment service, whatever that means. Before it meant DAAP, but now it means a nominated assessment service. That is one of the questions I would ask the Attorney-General to at least cover briefly tonight even if he wishes to come back to it again in more detail later. I really want the picture sketched out as to what the structure will become.

Is DAAP one of the nominated services available and, if so, whether it is or is not, what else is considered to be a possible nominated assessment service? If a person is referred, who will decide which service they are referred to? Is it the police officer? New section 36 provides:

. . . a police officer must offer the person the opportunity of being referred to a nominated assessment service.

However, it does not say who makes the choice of service or indeed when they make the choice. With DAAP essentially you were told: you are being referred to DAAP. I would have to say that I am disappointed that we have not kept DAAP at least as a clear gateway. As a gateway DAAP itself can have a series of panels that can be different in terms of geographical location and in terms of composition so that it can react to ethnicity, aboriginality and so on. Instead, we simply have this vague term `nominated assessment service' without anything being spelt out as to what that means. Before I proceed any further, I ask the Attorney-General to at least sketch out what this nominated assessment service is meant to be, what the gateway is (as to which one they go to), who makes the decision and so on.

The Hon. K.T. GRIFFIN: There are a number of issues there and I shall endeavour to deal with them now. The evaluation of DAAP does not, in my view, deal just with procedure: it deals with some substantive issues that relate to the whole DAAP process. We can debate the merits of the evaluation and perhaps come to different conclusions about it, but my reading of it is that it does raise some important issues of process and substance. But I come back to-

The Hon. K.T. GRIFFIN: Well, there are two reasons for dismantling the process and one is the evaluation where the clear conclusion is that after 15 years or thereabouts the process had become rigid and centralised.

The Hon. M.J. ELLIOTT: The Attorney-General has talked about commonwealth funds. What aspects of the program that we had under DAAP did not fit into what the commonwealth required? What was missing that made our current process unsuitable?

The Hon. K.T. GRIFFIN: I will take the question on notice. My recollection is that it was the inflexibility of the service and its cumbersome nature.

The Hon. M.J. ELLIOTT: Will the Attorney-General tell this committee whether any states had anything like what we had in South Australia in the DAAP process?

The Hon. M.J. ELLIOTT: This is not unimportant. This thing has really grown like Topsy and has gone out of control. We have the Prime Minister announcing he will make money available for drug treatment programs and John Olsen not even knowing what we already have. If you read Siggins and Miller you see that they acknowledge that DAAP had quite a low profile-and quite deliberately so. Anyone who reads it will find that. I suspect that, when John Olsen said, `Yes, we will be in this,' he did not even know what we already had but, having said he would go into it, we are now in this process where we are setting about justifying an announcement that unfortunately was made without recognising what we already had.

I am not saying the DAAP process is perfect but what worries me is that we are altering a process that has worked well. I have raised in this place deficiencies in the DAAP process, long before the announcements were made about the change, but the deficiencies related to two things. They related to the lack of resources for DAAP itself, and if you read Siggins and Miller they will tell you that referrals in the country were taking six months, but they are now down to 10 days. The other deficiency was that the services to which they wanted to refer them were all full. So, there was a waiting list to get into DAAP and a waiting list for them to send you anywhere. That was not really a fault of the process: that was a lack of funding.

If the commonwealth had made available the $8 million (or whatever was the figure), we could have done something absolutely brilliant with DAAP. I am not saying we would have kept it identical to the way it is. I think there is a need to address issues of having panels that work better in the country and there are issues about having culturally sensitive panels and so on. The help desk was set up six months ago. I know that, even before the legislation emerged in parliament the first time, the government was already recruiting people for it. The decisions and assumptions had already been made about this, so it is all there, waiting to go, and has been for a long time.

So, we are heading down this path without any real justification being put forward as to the real problems. If you want to fix something you have two choices. One is to actually try to fix it and the other is to throw the whole lot away and start again. The government has taken a process that I believe has not been seriously flawed, and is throwing it away and starting again. It was seriously under funded, and that was the only problem, and the commonwealth funds were quite capable of fixing the major deficiencies. I have heard nothing in this place in the second reading stage or in relation to the amendments that have been put before us that has addressed that. We have this superficial amendment that now proposes that DAAPs will continue, but at the end of the day it will be just one of the referral agencies.

I suspect that what will happen is that again the churches will be picking up the pieces, as they do with gambling and everything else. They will put up their hand, as they have tended to do with many of these issues, and say, `We're prepared to do this.' Anyone who goes to the South-East, where I have spoken with Anglican agencies and others there and elsewhere, will find that they are really stretched and cannot cope. I suspect that they will be the agencies and nominated assessment services. Because of their Christian compassion they will put up their hand and say they are prepared to do it, but they will never get the funds to do it. The funds will go into the drug court.

The Hon. M.J. ELLIOTT: The state funds will find their way, not into the assessment end of things, but into the more expensive, non-delivery ends of these services, as they always do. It is incumbent upon the government, and upon the opposition, to insist that it do so, to establish the flaws. Have a look at Siggins and Miller. I do not think it is saying that the process we had was fatally flawed. I am not saying it did not have problems, but it certainly had no fatal flaws. Simply to make it one of the nominated assessment services is a nonsense. That is one of the amendments: we are no longer getting rid of DAAP; it is one of the nominated assessment services.

The Hon. M.J. ELLIOTT: They could be, but all I can say is that it is the government that is doing it here. I have been seriously concerned about the quality of the justification of the change. You do not make radical changes such as this in areas as important as drug treatment without serious justification and thought. I know from talking to professionals in the area whom I know have deep concerns about this current direction.

The Hon. M.J. ELLIOTT: Yes, but, as I said before, the biggest concerns have related largely to sufficient resources for DAAP to do its job.

The Hon. M.J. ELLIOTT: That is one of the questions I asked the Attorney; I think he is coming back with an answer on that. I do not believe that the DAAP process in general was not able to be configured to comply with commonwealth requirements.

The Hon. M.J. ELLIOTT: Will the Attorney-General advise whether or not this report was taken into account when the legislation was drafted? The report raises a lot of issues, whether in relation to DAAP or any other referral agency. For example, it states that the act precludes DAAP from advising police prosecutors and magistrates about the reasons for referring someone back to the police prosecutors for a court hearing. The Chairman supports removing the discretion of the magistrates to refer clients back to DAAP and proposes an amendment to the act so that the reasons for referring a client back to the courts are made known to the court. It seems that whether it is talking about DAAP or any other agency-

The Hon. M.J. ELLIOTT: That is quite early in the report, on the fourth or fifth page. Observations are made in the report that do not go to the heart of whether or not we should have DAAP but talk about how to improve the process. However, it is still relevant whether it is DAAP or another agency. Will the Attorney-General advise whether or not in drafting this act these matters have been taken into consideration? I am sure drafts of the report were available earlier but we received this report only last week. I would like to know whether or not Parliamentary Counsel had access to the report or had instructions on the basis of the report? If not, when the amendments were prepared were they simply responding to issues raised in this place because there are a lot of issues that do not go to the heart of DAAP but go to the efficiency of the DAAP process or any other process that might replace it?

The Hon. K.T. GRIFFIN: From my recollection, the way in which the proposal was developed was from representatives from human services and justice (which included the justice strategy unit in the Attorney-General's Department), the police and my own legal officers. There was a long period of development of the model in conjunction with the Department of the Premier and Cabinet, which had linked into the federal illicit drug strategy.

I understand that the interim evaluation report was taken into consideration but I am not sure as to the weight given to particular aspects. I will undertake to obtain the information and respond when we next deal with the matter in committee.

The Hon. M.J. ELLIOTT: How many in that group had any significant knowledge about the DAAP process? I suspect that those in the Department of the Premier and Cabinet and the Justice Department did not have a close association with this issue because it falls within the community services portfolio. How many people working on this had any real knowledge of what was already in place, not necessarily to defend it but to recognise, as Siggins and Miller has, that there may be issues that need to be addressed and learned from previous experience?