Ms CHARISHMA KALIYANDA (Liverpool) (16:12): The Drug Misuse and Trafficking Amendment (Appointed Persons) Bill 2023 will amend the Drug Misuse and Trafficking Act 1985, otherwise known as the DMT Act, to invest the function of appointing persons under section 43 (5) of the DMT Act in the Executive Director of the Royal Botanic Gardens and Domain Trust, or a person prescribed by regulation, and to retrospectively validate appointments made under section 43 (5) of the DMT Act prior to the passage of the bill. Section 43 (5) of the DMT Act provides that any appointed person analysing any plant submitted to the person may give a certificate of the result of the analysis. This section provides that in legal proceedings under the DMT Act the production of a certificate purporting to be signed by a person appointed under the section is prime facie evidence of, first, the identity of the plant analysed and, secondly, the quantity or mass of that plant, without proof of signature or appointment of the person appearing to have signed the certificate, but only if the plant is identified as cannabis plant or cannabis leaf.

This section of the DMT Act gives the Secretary of the Department of Industry, Skills and Regional Development power to appoint persons to give certificates of analysis under section 43. In 2017 the department's name was changed to the Department of Industry. In 2019 that department was abolished and some of its staff transferred to the Department of Planning, Industry and Environment by the Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2019. References to the Department of Industry were also to be construed as a reference to the Department of Planning, Industry and Environment.

The Administrative Arrangements (Administrative Changes—Regional NSW and Independent Planning Commission) Order 2020 created the Department of Regional NSW and transferred certain staff from the Department of Planning, Industry and Environment to the Department of Regional NSW. However, changes were not made to enable the updated reference to the "Secretary of the Department of Industry, Skills and Regional Development" in section 43 (5) of the Act to be construed as a reference to the Secretary of the Department of Regional NSW. As a result, appointments of persons under section 43 (5) of the DMT Act that were made by the Secretary of the Department of Regional NSW are invalid.

In 2023 the Department of Regional NSW and the NSW Police Force identified an issue arising out of machinery-of-government changes in 2020 that impact on the validity of those appointments. On receiving advice about this issue, the New South Wales Government has acted swiftly to develop and bring forward legislative amendments to address it. This is the core business of our work. Where there is a gap, we must act as legislators to fill it to ensure that no‑one else is caught by it. Therefore, the Department of Communities and Justice worked with the NSW Police Force, the Department of Regional NSW and the Royal Botanic Gardens and Domain Trust to develop these legislative amendments.

A conviction for an offence under the DMT Act that relies on a certificate given by a person purportedly appointed by the Secretary of the Department of Regional NSW under section 43 (5) of the DMT Act may be unsafe and liable to challenge. Accordingly, the bill retrospectively provides that appointments made under section 43 (5) of the DMT Act were validly made. Given the frequency with which machinery-of-government changes occur, it would be prudent to vest the appointment function under section 43 (5) of the DMT Act in an appropriate public officer who is unlikely to be impacted by future machinery-of-government changes. Accordingly, the bill will confer the power to make such appointments on the Executive Director of the Royal Botanic Gardens and Domain Trust under the Royal Botanic Gardens and Domain Trust Act 1980, or a person prescribed by regulation. Section 43 (5) of the DMT Act was enacted in 1988—it has been around for almost as long as I have been alive.

Mr Paul Scully: You are trying to make us all feel old.

Ms CHARISHMA KALIYANDA: You are welcome, Minister. The section was enacted to enable persons trained by the National Herbarium of NSW to botanically identify cannabis plants to be appointed to give certificates under section 43 (4) of the DMT Act. The National Herbarium of NSW, which is part of the Royal Botanic Gardens and Domain Trust, continues to train persons to botanically identify cannabis plants for the purposes of the DMT Act. This training qualifies a person as suitable to be appointed for the purposes of section 43 of the DMT Act. The executive director of the trust is an appropriate person to make such appointments and is less likely to be impacted by machinery-of-government changes than a secretary of a public service department, as we have recently found.

It is in the public interest that convictions for drug offences that were validly and properly obtained should not be overturned on the basis of an error that occurred following a machinery-of-government change. It is also in the public interest that the appointment function in section 43 (5) of the DMT Act be vested in a position that is qualified to determine whether a person is a suitable person to provide certificate evidence about the identity and quantity or mass of cannabis plant or cannabis leaf and that is less likely to be impacted by future machinery‑of‑government changes.

As we have heard, only legislative amendments can rectify this issue, which is why it is important that we address it in this place. The bill will commence on assent. The Royal Botanic Gardens and Domain Trust will be responsible for appointing persons to give evidentiary certificates under section 43 (5) of the DMT Act. So far, many affected stakeholders have been consulted and their opinions sought in the development of this policy, including the Royal Botanic Gardens and Domain Trust, the NSW Police Force and the Department of Regional NSW. This comprehensive consultation has ensured that further amendments need not be made. I commend the bill to the House.