Wednesday, 7 February 2024

Bills

Drugs, Poisons and Controlled Substances Amendment (Pill Testing Pilot for Drug Harm Reduction) Bill 2023

Statement of compatibility

Aiv PUGLIELLI (North-Eastern Metropolitan) (09:59): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this statement of compatibility with respect to the Drugs, Poisons and Controlled Substances Amendment (Pill Testing Pilot for Drug Harm Reduction) Bill 2023.

In my opinion, the Drugs, Poisons and Controlled Substances Amendment (Pill Testing Pilot for Drug Harm Reduction) Bill 2023, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview

The Drugs, Poisons and Controlled Substances Amendment (Pill Testing Pilot for Drug Harm Reduction) Bill 2023 (the Bill) establishes a new legislative scheme to allow for the licensing and operation of one mobile drug-checking service, and the licence and operation of one fixed premises drug-checking service as a pilot.

The key elements of the scheme are:

• the mobile facility will be permitted to provide services at music festivals and events where there is a likelihood of drug use with the purpose of reducing the harm of that use through testing the composition of substances, the provision of information about those substances, advice about the harms and risks of drugs, health advice, referrals to support services and safe disposal of substances, to potential users;

• the fixed premises facility will be established at a location deemed appropriate through the licencing process that enables the service to meet its objectives of reducing the harm caused of drug use, also through testing the composition of substances, the provision of information about those substances, advice about the harms and risks of drugs, health advice, referrals to support services and safe disposal of substances to potential users;

• the Secretary to the Department of Health may grant a single licence to operate a mobile drug-checking service, and a single licence to operate a fixed-site drug-checking service if they are satisfied that the necessary preconditions have been met, including the establishment of internal management protocols for the services;

• the initial period of the pilot is two years with the ability to extend the trial period for a further four years. The minister is to arrange for a review to be conducted of the operation of the service, which will be relevant to any decision on whether an extension to the trial period is appropriate;

• there will be strong oversight of the services;

• during the trial period, some limited protections against liability will be provided to service users in respect of the supply and possession of a small prescribed quantity of a prescribed drug of dependence while the service user is at the drug-checking service; and

• the staff of the drug-checking services and licensee will also be granted protection against criminal liability arising from the operation of the services and, in some limited circumstances, so will the owner and occupier of the sites and the staff operating at the licensed premises sites.

Human rights issues

Right to life (section 9)

Section 9 of the charter provides that every person has the right to life and has the right not to be arbitrarily deprived of life.

The right to life is the most fundamental of all human rights. It is concerned with both the protection and preservation of life. Under international human rights law, the right in section 9 of the charter includes an obligation on the state to refrain from conduct that results in the arbitrary deprivation of life, as well as a positive duty to introduce appropriate safeguards to minimise the risk of loss of life.

The Bill establishes a service for people who intend to use drugs and others to attend in order to have a substance chemically tested for certain prohibited drugs or substances and information about the contents of the substance, including amount, purity or concentration of its components being provided to that person. Given that clients of the service may go on to use or consume the drugs or substances that they have had tested, the scheme has the capacity to engage the right to life. However, the object of the service established under the bill is not to encourage or condone the use of prohibited substances but rather it is one of harm minimisation. The state’s obligation to respect a person’s right to life includes a positive duty to properly and openly investigate health risks as a result of drug use in order to take positive steps to protect the lives of those affected and minimise harm caused by drug use.

The Bill’s establishment of a drug checking service promotes and protects the right to life in a number of respects.

Firstly, the Bill takes positive steps to reduce the number of deaths related to drug use. The evidence of trials in Canberra and around the world through over 20 years of operation of such services has shown that drug checking services are successful in educating clients about the risks of drug taking, and in reducing drug taking and drug-related deaths. The Bill provides a robust framework to ensure clients get access to quality compositional testing of substances and timely information about those substances, including potentially unexpected and/or highly lethal substances or purity levels contained within, and easy access to drug disposal services. The service will also provide evidence based information about the likely effects of consuming the drug, including potentially fatal risks, and information about associated drug related harms such as dehydration, heatstroke and the potential additional risks associated with combining the substance with alcohol, other illicit drugs, and/or prescribed medications.

Secondly, the Bill promotes the right to life by improving access to drug and alcohol treatment, mental health and health education services. The Bill provides for internal management protocols that require the facilities to facilitate access or referral to appropriate health and support services (see proposed s 55ZC 3B). These services include drug and alcohol services, drug and alcohol detoxification and rehabilitation services, medical services, mental health services, and health education services. This aspect of the Bill recognises that drug use is, first and foremost, a health issue that requires a package of tailored interventions based on harm reduction principles. By requiring pathways for referrals, the Bill ensures that people intending to use drugs are provided with the opportunity to engage with the relevant support services to address the choices and behaviours that pose a risk to their life.

Thirdly, the Bill promotes the right to life to the wider community by notifying the Chief Health Officer, the Chief Commissioner of Police and the Secretary when lethal substances are detected or a substance in amount, purity or concentration that poses a notably lethal risk. This enables the Chief Health Officer to issue public health warnings of a high risk and potentially lethal substance and other departments to circulate that information and implement any relevant protocols, which could also be life-saving.

Protection of families and children (section 17)

Section 17 of the charter provides that families are the fundamental group unit of society and are entitled to be protected by society and the state; and every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

The Bill includes provisions that prevent children or youth from admission to any part of the services that is used for the purpose of testing of substances (see proposed s 55ZH (2)(a) and the procedures required under s 55ZC(3)(d)), unless otherwise prescribed by the Governor in Council via regulations. This condition engages the right of a child to such protection as is in his or her best interests and is needed by him or her by reason of being a child. It does not, however, limit this right. It is expected that the mobile drug checking service will be located at ‘over age’ festivals that exclude people aged under 18, thus the mobile service will not be accessible to children. In relation to the fixed premises drug checking service, it is feasible that someone aged under 18 would want to use the service. However, a child’s parents, school, and the range of online resources from health and youth services are more likely to be the first point of contact with relevant information and advice on relevant drugs than a pill testing service. Children are also unlikely to access a service that will likely be located remotely from their daily routine of school and home life. For children or youth in need of targeted drug treatment there are already youth targeted treatment options, which meet the needs of young persons with drug issues.

While the Bill establishes an age restriction, the restriction can be changed by the Governor in Council (s 55ZY(1)(i)). This provision recognises the evidence indicating that often people take illicit drugs prior to the age of 18 and the harm-reduction benefits of a pill testing service may be applicable to this group. Therefore, the Bill recognises that there may be strong evidence to support lowering the age restriction as the trial unfolds, while initially excluding people aged under 18. We believe this approach is appropriate given the particular vulnerabilities of children.

Equality before the law (s 8)

Section 8 of the charter provides that every person is equal before the law and protects against discrimination, including on the basis of age. The Bill includes provisions that prevent children from accessing any part of the drug checking services (see proposed s 55ZH (2)(a) and the procedures required under s 55ZC(3)(d)). These restrictions are reasonable limits upon the right to equality as additional safeguards for the protection of children. The restrictions upon children accessing the drug checking services are consistent with other prohibitions upon children, for example access to the medically supervised injecting room, or the purchase of alcohol and cigarettes. They reflect the broader policy inherent in our legal system that children do not have full autonomy to make decisions of this nature, and remain subject to the supervision of their parents. Insofar as children are treated differently from adults, thereby engaging the right to equality in s 8, those limits are reasonable and justified.

As stated above, while an age restriction is established, the Bill also allows this restriction to be changed by the Governor in Council (s 55ZY(1)(i)) should this be considered to be in the best interests of children.

Right to privacy and reputation (section 13)

Section 13 of the charter provides that a person has the right to not have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and not to have his or her reputation unlawfully attacked.

Clause 7 of the Bill inserts a provision that enables authorised officers to enter upon the premises of the drug checking service, to ascertain whether the Act, regulations, licence and internal management protocols are being complied with and to exercise other powers under s 42(1) of the Act. Those powers include: examining any room or part of such premises and any goods or records therein; take an account of any poisons or controlled substances therein; obtaining a sample of any poison or controlled substance which is in or on the premises. The exercise of these powers may engage an interference with a person’s privacy. However, in circumstances where they are conferred for and limited to the important purpose of ascertaining compliance with the Act, regulations, licence and internal management protocols, any such interference is lawful and not arbitrary and therefore compatible with the right to privacy in s 13 of the charter.

Proposed new section 55ZX requires the minister to conduct a review and authorises the minister to access, collect, use and disclose any data or information to complete the review. However, these powers are subject to the protections in the health privacy principles in the Health Records Act 2001 and the information privacy principles in the Privacy and Data Protection Act 2014. Accordingly, I consider that the provisions are compatible with the right to privacy in s 13 of the charter.

Rights to be presumed innocent (s 25(1))

Section 25(1) of the charter provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.

The Bill does not create any new offences. However, the Act does create new exemptions to a range of drug offences under the Act. Proposed s 55ZR provides an exemption for a person who is a client of the drug checking service who supplies or possesses a poison, controlled substance or drug of dependence inside a drug checking service. Proposed s 55ZS and 55ZT provides an exemption for the licensee and staff of the licensed drug checking service if the activity is carried out in the conduct and operation of the licensed drug checking service. A limited exemption is also provided for the licensee, the employees of the licensee, the owner of the site and each occupier of the site. Pursuant to s 104 of the Act, the burden of proving any of the exemptions will lie upon the person seeking to avail himself thereof. The standard of proof is on the balance of probabilities.

Ordinarily, the presumption of innocence requires that the prosecution prove all matters beyond reasonable doubt. The creation of an exemption that involves an imposition of a burden on the accused to establish the exemption amounts to a limit upon the right to be presumed innocent. However, I consider that it is reasonable and justifiable to create exemptions with a reverse burden of proof in these particular circumstances. While the courts have emphasised the importance of the presumption of innocence, they have also recognised a special class of cases ‘arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’ (see R v Lambert [2001] 3 WLR 206 at [35] per Lord Steyn). The exemptions created by the Bill are to what otherwise would be criminal conduct. They do not require an accused to disprove elements of the offence; the burden of proving those elements remain on the prosecution. Rather, they are limited to the very special and narrow circumstances of the drug checking service. They are matters that are within the knowledge of the clients and staff of the centre.

Second reading

Aiv PUGLIELLI (North-Eastern Metropolitan) (09:59): I move:

That the bill be now read a second time.

It is my great pleasure to rise today to speak on the pill-testing pilot for drug harm reduction bill, this historic co-sponsored bill from the Victorian Greens, Legalise Cannabis Victoria and the Animal Justice Party.

This is the first time in the Victorian Parliament that three parties have come together to introduce a bill, and it has occurred now because pill testing is such an important issue and taking this action to reduce preventable drug harm cannot wait any longer.

Importance of pill testing

Pill testing saves lives. It has been tried and tested around the world in dozens of other countries over many years. Here in Australia, Canberra is currently offering pill testing and Queensland is soon to follow. This bill seeks to introduce a pill-testing pilot here in Victoria that would run for two years with the option to extend further. It provides for mobile testing at music festivals or other events, as well as a permanent location that offers drug checking as well as more detailed analysis.

Pill testing does not encourage illicit drug use. Pundits will wrongly claim that if we offer pill testing to young people they’ll see it as a green light to take drugs and that more people will take up recreational drug use because they’ll see it as safe.

Pill testing is not claiming to make drug use entirely safe; however, research shows that when people engage with pill-testing services many will choose not to take their drugs if it’s found that they are an unknown or potentially fatal substance. And others will modify how they take their drugs to reduce the risks. That’s one of the massive benefits of offering pill testing: it’s not just an opportunity to test drugs to see what’s in them, it’s an opportunity for prospective drug users to have an informed conversation with a health worker to discuss their drug use and what they can do to reduce the potential for harm.

And that’s the whole premise of introducing pill testing, that drug taking is never completely safe or risk free, but we can reduce the risk and harm caused as well as the prevalence of overdose. Empowering people to make informed decisions leads to safer decisions being made, and with that comes less overdose, less ambulance call-outs, less hospital admissions and most importantly less unintentional drug overdose deaths.

We saw over the summer season many people took illicit drugs and ended up very unwell, some spending weeks in hospital. Thank goodness no-one lost their lives, but it’s happened too many times already. Research from Monash University has shown that over the last 20 years 64 young people have died from drug overdoses at music festivals in Australia, and their deaths were found to be potentially preventable. These were young people, primarily in their twenties. They didn’t expect to die, they wanted to have fun at a festival, made the decision to take drugs and often alcohol too, and tragically they lost their lives. We need to do more to prevent these types of deaths.

Pill testing works, to make people safer and reduce the risk of overdose and death. Telling young people that drugs are harmful and that they shouldn’t use them doesn’t work. It’s never been enough. It is ridiculous that we’re still just pushing the ‘just say no’ argument. Let’s live in reality and acknowledge that people use illicit drugs, that young people will experiment with drugs, and let’s do what we can to make sure that this doesn’t send them to hospital or at worst end their lives.

Pill testing is widely supported by the community and medical and harm reduction experts. Around 60 per cent of people out in the community would like to see pill testing available at music festivals. They know that their children or friends or family members may take drugs occasionally and they want them to come home safe afterwards.

Five Victorian coronial findings have recommended that a drug-checking service should be implemented here following their investigations into drug-related deaths.

Almost 80 health and community organisations in our state have called on the Victorian Labor government to implement a drug-checking and public early warning system to reduce harms relating to novel psychoactive substances. This includes organisations such as the Alcohol and Drug Foundation, the Australian Services Union, Cohealth, Family Drug Support, Fitzroy Legal Service, Harm Reduction Australia, HACSU, LGBTIQ+ Health Australia, the Pharmaceutical Society of Australia, the Royal Australian College of General Practitioners, Victorian Alcohol and Drug Association and Youth Affairs Council Victoria, just to name a few.

This is a hard-hitting list – doctors, alcohol and drug specialists, health workers, unions, legal services, pharmacists and many others, all coming together to demand action on this issue. We must listen to the experts.

Pill testing in action

Around the world there are drug-checking services in at least 28 countries. Over the past few years there has been an expansion of these services in North America to respond to the increase of fentanyl-type overdoses that are impacting many cities. This is something that we should be taking very seriously here in Australia and preparing for ourselves. In New Zealand pill testing is up and running with fully implemented services to support drug checking and harm reduction.

Research from Europe has shown some excellent results. Eighty-six per cent of drug-checking service users in Portugal and 69 per cent in the UK did not take their drugs when they found it was different to what was expected. More than half of service users in these countries consumed less of their drugs when they found out it was stronger than expected. This is harm reduction in action. It’s proof that pill testing works and helps make drug use safer for those who already take their drugs with or without this advice.

And the results from Canberra have been equally positive. Over two-thirds of the people who visited the Canberra site in its first six months of operation had never before accessed information or advice on drug use from a healthcare worker. Half of the drugs they checked in this same period were found to contain substances that were unexpected by the service user, which shows how inconsistent the illicit market is and why this service is important for community safety. Canberra has issued two community alerts regarding harmful substances that they’ve identified through testing and one public health notice about a particularly dangerous substance. We need to know what is out there in the illicit drug market, and drug-checking services provide this surveillance and data.

About one in 10 substances brought to the CanTEST were discarded at the service after testing, and people were four times more likely to say that they would definitely not take their drugs when it was found that the substance was different to what was expected or contained additional drugs or inconclusive results.

Again let me stress, this service is working. It’s empowering people to make informed decisions about their drug use, to modify this use and to reduce the risks.

Pill-testing pilot

To outline the details of the bill, it creates a drug-checking service here in Victoria with the aim of reducing drug harm and saving lives. Two licences will be issued by the Secretary of the Department of Health for a mobile and a fixed-location drug-checking service. These will both provide information on the substances they receive, harm reduction education, and referral services if required. The mobile service will go to events such as music festivals and offer on-the-spot testing and advice, potentially influencing behaviour before drug consumption. The fixed-location site will provide a similar service year round, while also being able to undertake more in-depth chemical analysis of substances and report instances of dangerous or new substances to the relevant authorities.

The licences will be valid for two years, with a possible extension for a further four years. A review of the pilot will be undertaken after one year, and the report will be tabled in Parliament.

The bill establishes governance and management protocols, including licence application processes, amendments, and revocations. It emphasises the importance of internal management protocols and a fit and proper person test for licence-holders.

The pill-testing service will analyse drug samples, providing information on composition, potency, and associated health risks. It facilitates safe disposal of substances and offers referrals to health and social services. An amnesty bin at the festival site would allow patrons to discard drugs without legal consequences and provide further substances for testing to increase our understanding of the types of drugs in circulation in Victoria including new or particularly dangerous substances. Drug transfers between mobile and fixed sites are permitted for further testing.

It is intended that these services will offer non-judgemental, factual advice on the risks and harms of drug use and how to reduce them. This will be available for people who might experiment with drugs at a festival, but also for more regular drug users who will have access to regular drug-checking should they wish at the fixed-location service.

The bill allows for the Governor in Council to set the minimum age of entry to the drug-checking service. This provides for flexibility for the services to be provided to those who would most benefit based on the data and experience of these pilot services.

To enhance harm reduction, the bill mandates the reporting of dangerous substances to health authorities and the police. It is intended that the chief health officer will be able to issue real-time public alerts about dangerous drugs. This will assist not only potential drug users but also health workers, drug and alcohol specialists and others to provide appropriate services and information to their clients.

Limited liability exemptions and protections are provided for service employees, clients, and the licensee in relation to the supply and possession of drugs within the pill-testing service confines, to safeguard them from legal repercussions. Outside the service, Victoria Police retains discretion in enforcing drug-related offences.

In addition, there are also exemptions from civil liability for the drug-checking licensee and the owner and occupier of the land or the service’s premises, in relation to the services provided at the centre involving possession or supply of drugs or other illicit substances.

Conclusion

The evidence is in and now is the time to introduce pill testing here in Victoria. Every year we see more and more young people put at risk by taking party drugs without the option to check them or to speak to experts before taking them. I’m not here to claim that pill testing will end all drug harm or that there won’t be any more overdoses at festivals or clubs, but I am saying that we need to do what we can to reduce harm, make this service available, so that people have options. So they can test their drugs, they can make informed decisions, and change their behaviour to reduce the risks of harm.

Alongside this, providing public health alerts when new and dangerous substances are circulating will reduce the risk of ongoing overdoses or harm from a bad batch. We can’t be waiting weeks or months to find out what has caused an overdose event. With a drug-checking service comes information and warnings so that as many people as possible are alerted about potentially dangerous drugs in the community.

Again, this bill has brought together three parties who are all committed to harm reduction in Victoria. We want to make young people safer when they party. We want to see young people offered information and advice on their drug use. We want to reduce overdose harm and death. Pill testing can do these things.

I commend this bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:12): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.