Bills Digest No. 110 2004–05
Customs Amendment Bill 2004
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
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Amendment Bill 2004
Introduced: 8 December
Portfolio: Justice and Customs
The Bill has been
passed through both Houses and has commenced operation.
The Customs Amendment Bill 2004
(the Bill) will prescribe commercial quantities for all illicit
drugs prescribed in the Customs Act 1901.
background of the Bill
Australia s approach to illicit drugs has been characterised as
embedding harm minimization strategies and a robust treatment
framework in a strong law enforcement regime. (1)
Significant penalties for commercial traffickers have long been a
feature of the law enforcement regime.
On 2 November 1997, the Howard Government launched Tough on
Drugs , a strategy designed as a part of a national effort to
combat the menace of illicit drugs. (2) This strategy is
a significant part of Australia s overarching National Drug
Strategy which, in the government s view, is to provide a
balanced and integrated approach to reducing the supply of and
demand for illicit drugs .(3) In its paper The
National Drug Strategy Australia s integrated framework 2004
2009, the Ministerial Council on Drug Strategy noted that
the reduction of supplies of illicit and other drugs is to be
achieved by disrupting the production and supply of illicit drugs,
especially by engaging law enforcement, health and other regulatory
Tough, publicly pronounced penalties are designed to act as a
strong deterrent for offenders and society in
general.(5) Such penalties are intended to make it clear
to the offender and to other persons with similar impulses that, if
they yield to [the commission of crimes], they will meet with
severe punishment .(6) The introduction of tough
penalties can also be seen as an indication that the legislature
considers a particular crime particularly
Certain drug offences, including smuggling, unlawfully importing
or exporting certain narcotic drugs on a commercial scale, have
been identified by the government as particularly heinous
crimes.(8) The legislature has considered that the
commitment of such offences should attract a maximum term of life
imprisonment. Under subsection 235(2) of the Customs Act
1901, courts have the discretion to hand down this maximum
penalty when satisfied that:
the drug offence was committed in relation to a narcotic
substance for which the Customs Act 1901 prescribes a so
called commercial quantity, and
the quantity of the narcotic substance was not less than the
commercial quantity prescribed in the Customs Act
Central to the offence attracting the life sentence is the term
commercial quantity . Commercial quantities for individual narcotic
substances are prescribed in column three of the table set out in
Schedule IV of the Customs Act 1901 and are expressed in
kilograms (kg). Examples range from 1.5 kg for heroin, 2 kg for
cocaine and up to 100 kg for cannabis.
However, currently only a minority of narcotic drugs are
allocated a prescribed commercial quantity. In other words,
regardless of the quantity of drugs involved, offences committed in
relation to the majority of the narcotic drugs specified in the
Customs Act 1901 will not attract a maximum penalty of
life imprisonment (unless the offender is a repeat offender for a
trafficable amount under section 235(2)(c)(ii) of the Customs
Recently, this gap has been criticised by Finnane J of the New
South Wales District Court. In the matter of R v Zhang and
ors (unreported decision, dated 4 December 2004) Finnane J
sentenced two drug dealers to 25 years jail for the possession of
over 320 kg of the designer drug Ice , one of the street names for
methamphetamine.(9) In his judgment, His Honour
The Commonwealth of Australia has, through the
Customs Act, over many years prohibited the import of narcotics.
Schedules to that Act set out quantities of various types that
constitute various offences. Although this drug is obviously a very
dangerous one, the Commonwealth did not apparently consider it
necessary to prescribe any commercial quantity of it. The only
relevant offence is dealing in a trafficable quantity; the maximum
penalty for which is twenty-five years imprisonment and/or a fine
of up to $500,000. I would urge those who are responsible to create
a category of offence which prohibited the importing into Australia
of more than some quantity which they could devise as being a
commercial quantity. The quantities of drugs imported here and the
likely profits to be made would be equivalent, in my opinion, to
the type of commercial dealing in heroin and cocaine. It is
difficult to see why the most serious offence of importing this
drug is one of importing a trafficable quantity.(10)
His Honour also noted that:
If this drug were heroin or cocaine clearly the
applicable sentence would be one of life
The proposed amendments will close this apparent gap by
prescribing commercial quantities for all remaining narcotic drugs
listed in Schedule IV of the Customs Act 1901 providing
the courts with the ability to hand down life sentences in
appropriate cases in relation to all drugs listed there.
Item 1 to item 109 will insert
the commercial quantity for the remainder of the listed narcotics.
The amount is expressed in kilograms.
Item 110 prescribes that the commercial
quantities will become applicable to offences after the
commencement of the amendments to the Customs Act
The quantities prescribed by the amendment are based on
quantities prescribed under state and territory laws as well as
under the Commonwealth s Crimes (Traffic in Narcotic Drugs and
Psychotropic Substances) Act 1990. However, the measures in
this Bill are only intermediate measures. In his second reading
speech, Senator Ellison, Minister for Justice and Customs, pointed
Next year, the Government will be bringing forward
further improvements, including new serious drug offences for
inclusion in the Criminal code.(12)
In the meantime, the amendments in this Bill will allow the
courts to impose the maximum life sentence for the most serious
drug offences. This does not mean that every offender who is
arrested and charged under the Customs Act 1901 with
importing a commercial quantity of narcotic drugs will in fact be
sentenced to life imprisonment. Rather, the maximum penalty will
only apply to the:
worst type of case falling within the prohibition
or, as it is expressed by Dwyer CJ in Reynolds v
Wilkinson (1948) 51 WALR 17 at 18, for the worst cases of
the sort . That expression should be understood to be marking out a
range and an offence may be within it notwithstanding the fact that
it could have been worse than it was.(13)
G Bammer, W Hall, M Hamilton and R Ali, Harm Minimization in a
Prohibition Context Australia , The Annals of the American Academy,
Vol 582, 2002, p. 80.
J. Howard, Prime Minister of Australia, Tough On Drugs -
Launch Of The National Illicit Drug Strategy, Launch of
the National Illicit Drugs Strategy, The Ted Noffs Foundation
Randwick, Sydney, 1997.
Department of Health and Ageing, National Illicit Drug Strategy,
accessed on 13 December 2004.
Ministerial Council on Drug Strategy, The National Drug Strategy
Australia s integrated framework 2004 2009, http://www.nationaldrugstrategy.gov.au/pdf/framework0409.pdf,
accessed 13 December 2004, p. 7.
 This is only one aspect of sentencing. Fox and Freiberg
identify retribution, proportionality, rehabilitation,
denunciation, incapacitation and the protection of the community as
further aspects. R. Fox and A. Freiberg, Sentencing State and
Federal Law in Victoria , Oxford University Press, Melbourne, 1999,
p. 202 232.
Radich  NZLR 86, p. 87.
Fox and Freiberg, op. cit., p. 233.
Subsection 231(1) of the Customs Act 1901 (Assembly of
persons with the intention of: importing prohibited imports,
smuggling or preventing the seizure, or rescuing after seizure, of
any prohibited imports or smuggled goods), section 233AC (the
master of a ship or aircraft must not use or allow the use of the
ship or aircraft for smuggling etc. of narcotic goods) or
subsection 233B(1) (Prohibition of importing, possessing imported
narcotics or conveying imported narcotic drugs).
See generally J. Norberry, Illicit Drugs, their Use and the Law
in Australia , Background
paper, no. 12, Parliamentary Library, Canberra, 1996 1997.
R v Wei Liang Tu And Anna Zhang, Unpublished decision
of the District Court of New South Wales, Finnane J, dated 3
December 2004, pp. 3 4.
ibid., p. 4.
Senator Chris Ellison, Minister for Justice and Customs, Second
reading speech: Customs Amendment Bill 2004 , Senate, Debates, 9
December 2004, p. 1.
R v Tait and Bartley (1979) 24 ALR 473, p. 484 485.
Brennan, Deane and Gallop JJ cited with approval Burt CJ in
Bensegger v R  WAR 65, p. 68.
8 February 2005
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