Mrs SALLY QUINNELL (Camden) (16:01): I speak in support of the Drug Misuse and Trafficking Amendment (Appointed Persons) Bill 2023, and I will drill down into some of its technicalities. The bill is derived from section 43 (5) of the Drug Misuse and Trafficking Act 1985, which confers a power on the Secretary of the Department of Industry, Skills and Regional Development to appoint suitably qualified persons to give certificates for the purposes of section 43. The power in section 43 (5) of the Act to appoint suitably qualified persons to give certificates for the purposes of section 43 was introduced by the Drug Misuse and Trafficking (Amendment) Act 1988. The amendment was an efficiency measure to increase the number of persons who could analyse cannabis plant or leaf to enable proceedings for cannabis offences to proceed without the prosecution having to call the analyst who analysed the cannabis plant to give evidence in court without threshold legal arguments about whether the analyst was validly appointed.

At the time of the 1988 amendments, section 43 of the Act only provided for an analyst employed by the New South Wales Government for the purposes of the Act, or an analyst as defined by the Therapeutic Goods and Cosmetics Act 1972, to analyse and provide evidentiary certificates of analysis about a substance. The second reading speech for the 1988 amendment bill stated that following the discovery of extensive cannabis plantations on the North Coast, a problem with an inadequate number of analysts to analyse substances for the purposes of the Act was identified. Agronomists trained by the National Herbarium of NSW to botanically identify cannabis plants were identified as suitable persons who could give certificates for the purposes of the Act, but only with respect to cannabis plants. The second reading speech stated that the involvement of those persons would be of great assistance to the police and the government analyst, both of whom faced a huge workload.

Accordingly, current subsections (3) and (4) were introduced into section 43 of the Act by the 1988 amending Act to authorise an appointed person to analyse a plant submitted to that person and give a certificate of the result of the analysis, and to provide that a certificate purporting to be signed by an appointed person be considered prima facie evidence of the identity of the plant analysed and the quantity or mass of that plant, where the plant identified is cannabis plant or cannabis leaf. The 1988 amendments conferred on the director-general of the then Department of Agriculture and Fisheries the power under section 43 (5) of the Drug Misuse and Trafficking Act to appoint persons considered suitably qualified to conduct analysis and give certificates of such analysis for the purposes of proceedings under the Act.

The present situation has arisen not due to any defect in the quality of analysis of plant matter by a person purportedly appointed under section 43 (5) of the Act or any defect in their training, but because of an inadvertent technical error following a machinery of government change. Persons trained by the National Herbarium of NSW to botanically identify cannabis plants have been appointed under section 43 (5) as suitable persons to give evidentiary certificates since 1988, when the provision was introduced. That is still the case today. A person's training accreditation from the National Herbarium of NSW is the key documentation required to make these appointments.

All persons who have purportedly been appointed since the making of the Administrative Arrangements (Administrative Changes—Regional NSW and Independent Planning Commission) Order 2020 have been trained by the National Herbarium of NSW to botanically identify cannabis and were appointed on that basis. Accordingly, the New South Wales Government is introducing this bill to retrospectively validate the appointments of persons under section 43 (5) of the Act. Given the issue has arisen due to an inadvertent technical error, the Government considers that a retrospective amendment to address the issue is justified.

The bill will take steps to reduce the risk of future machinery of government changes inadvertently leading to invalid appointments by vesting the function of appointing persons to issue evidentiary certificates under section 43 (5) of the Act in the Executive Director of the Royal Botanic Gardens and Domain Trust or a person prescribed by regulation. The National Herbarium is part of the Royal Botanic Gardens and Domain Trust and continues to deliver training on how to botanically identify cannabis plants. When the Royal Botanic Gardens and Domain Trust certifies that a person has completed the training, that documentation forms the basis for a decision by the secretary of the relevant department to appoint the person under section 43 (5) of the Act to give evidentiary certificates. As the Royal Botanic Gardens and Domain Trust is undertaking the critical steps of training and certifying that a person is suitably trained and qualified to botanically identify cannabis, the executive director of the botanic gardens has been identified as the appropriate person to undertake the appointment role under section 43 (5) of the Act.

The Executive Director of the Royal Botanic Gardens and Domain Trust is an office established under section 13 of the Royal Botanic Gardens and Domain Trust Act 1980. As the chief executive officer of the agency with responsibility for training and accreditation of persons with botanical expertise, the executive director of the trust is an appropriate public officer to make such appointments. The Executive Director of the Royal Botanic Gardens and Domain Trust is less likely than a secretary of a department to be impacted by machinery-of-government changes, as the trust is less likely to be abolished or merged with other government agencies by way of machinery-of-government changes than departments of the public service. In addition, as a further safeguard, the bill provides for a regulation‑making power to enable regulations to prescribe a person as a person who may make appointments under section 43 (5) of the Drug Misuse and Trafficking Act 1985 to facilitate any future changes that may be necessary to ensure that this function is carried out.

As previously noted in this debate, this is a retrospective bill in order to enable the legislation to catch up with the name changes that have happened. It is important to acknowledge that there is some cleaning up involved in the bill, but there are also some safeguards added to make sure that this does not happen each time there is a name change. We need to put these positions in safe places so that they cannot be challenged, and so that when drug matters go to court the identification of cannabis plants is not subject to any challenge based on the appointment of the person who has certified that determination.

The bill is retrospectively validating prior appointments because failure to do so will mean that convictions for drug offences under the Drug Misuse and Trafficking Act that rely on certificates of evidence issued by persons purportedly appointed under section 43 (5) of the Act may be unsafe and liable to challenge. It confers the function of making appointments on the Secretary of the Department of Industry, Skills and Regional Development. In 2017 that department was renamed. The bill protects this position so that it is not subject to name changes in the future. For that reason, I support the bill.