Bills Digest No. 10 2005–06
Law and Justice Legislation Amendment
(Serious Drug Offences and Other Measures) Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Law and Justice Legislation
Amendment (Serious Drug Offences and Other Measures)
Date Introduced: 26 May 2005
House: House of Representatives
Portfolio: Justice and Customs
formal provisions commence on Royal Assent. Other commencement
provisions are detailed in the Main Provisions section of this
The primary purpose of the Bill
is to insert a new part dealing with serious drug offences into the
Commonwealth Criminal Code.
The Bill amends a number of Commonwealth statutes. However, its
major focus is the creation of new Commonwealth illicit drug
offences. Background information about drug laws in Australia is
summarised in this Section of the Digest. Where relevant,
background information about other amendments can be found in the
Main Provisions section of the Digest.
Illicit drug laws in Australia have traditionally been the
province of the States and Territories, with the focus of
Commonwealth offences being on the importation and exportation of
Commonwealth legislation is based on the trade and commerce
power in section 51(i) of the Constitution and on the external
affairs power in section 51(xxix). A number of pieces of
Commonwealth legislation deal with narcotic drugs:
the Customs Act 1901 creates offences of importing and
exporting prohibited narcotics and being in possession of
prohibited narcotics reasonably suspected of being
imported.(1) Severe penalties apply and are graduated
according to the quantity of drugs involved. The Customs Act also
contains regulatory offences, such as offences of importing and
exporting prohibited narcotics in breach of licences or
permissions. Under the current Bill, regulatory offences will
remain in the Customs Act.
the Crimes (Traffic in Narcotic Drugs and Psychotropic
Substances) Act 1990 (TINDAPS Act). The purpose of the TINDAPS
Act is to extend Australia s extraterritorial jurisdiction relating
to drug trafficking in accordance with the United Nations
Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (the 1988 Convention). For instance, the
Act creates jurisdiction over persons outside Australia who engage
in conduct with a view to the commission of a drug offence in
Australia.(2) As both the current Bill and the TINDAPS
Act are designed to implement the 1988 Convention, the TINDAPS Act
will also be repealed but not by the Bill. The Explanatory
Memorandum states that the repeal will be effected as soon as the
tables of controlled substances and border controlled substances
[in the Bill] are expanded to cover all substances currently
covered by the TINDAPS Act. The TINDAPS Act will then become
the Narcotic Drugs Act 1967. This Act creates a
licensing regime for the manufacture of narcotic drugs in other
words, it sets out circumstances in which the manufacture of
narcotic drugs will be lawful. It partially implements the Single
Convention on Narcotic Drugs, 1961. The Narcotic Drugs Act is not
affected by the Bill.
Customs Regulations. For example, the Customs (Prohibited
Imports) Regulations create a system of licensing and permissions
for the lawful importation of narcotic drugs thus, narcotics may be
imported by someone holding a licence under the Narcotic Drugs Act
or for medical or scientific purposes.(4)
State and Territory illicit drugs laws contain offences relating
to matters such as possession and supply of illicit drugs and are
primarily used when criminal activity has no international
State and Territory legislation contains a diverse range of
offences and penalties. Significantly, for example, there is
considerable variation between jurisdictions in the area of simple
cannabis possession. In the ACT, Northern Territory, South
Australia and Western Australia possession of small amounts of
cannabis (variously defined) generally attracts an infringement
notice rather than a criminal penalty. In Western Australia
possession of up to 30 grams of cannabis can result in a fine of
$150;(6) while possession of up to 50 grams of cannabis
attracts a fine of $200.(7) However in NSW and Tasmania,
the penalties for possession of cannabis are more severe up to
$2200 fine or 2 years imprisonment in NSW(8) and up to
$5000 or 2 years imprisonment in Tasmania.(9)
All States and Territories impose heavy penalties for
manufacture, supply and trafficking, especially for drugs such as
heroin or cocaine. Depending on the offence, the maximum penalties
vary from 21 years imprisonment to life imprisonment.
In recent years, the States and Territories have also developed
a range of pre-court and court diversion programs to education or
treatment either by way of administrative arrangement or by
statute.(10) For instance, although serious penalties
continue to apply in NSW to possession of cannabis, an Adult
Cannabis Cautioning Scheme has been operating in that State since
2001 on a trial basis. It applies to adults found with up to 15
grams of cannabis but excludes anyone who has been cautioned twice
before and anyone who has prior convictions for drug or sexual
assault or offences involving violence. Additionally, Western
Australia, Victoria, South Australia, the ACT and Northern
Territory have pre-court diversion to education and treatment
programs for drugs other than cannabis. Lastly, drug courts operate
in NSW, Queensland, South Australia, Victoria and Western Australia
with the aim of diverting illicit drug users from custodial
sentences to treatment programs.(11)
The Bill is based on the work of the Model Criminal Code
Officers Committee (MCCOC). The Model Criminal Code project was an
outcome of a review of Commonwealth criminal law conducted in the
late 1980s and early 1990s by former Chief Justice of the High
Court, Sir Harry Gibbs. Initially, the Commonwealth decided simply
to codify its own laws. However, the Standing Committee of
Attorneys-General established MCCOC to work on a model criminal
code that could be adopted by the States and Territories and, with
appropriate modification by the Commonwealth,(12) so
that serious criminal offences could operate uniformly throughout
Australia.(13) For Commonwealth purposes, the Criminal
Code project also involves moving serious Commonwealth offences
from other statutes (such as the Customs Act) and placing them in
the Criminal Code.
MCCOC has completed reports on nine chapters of the model
criminal code, together with draft legislation. Chapter 6 of the
Model Criminal Code is entitled Serious Drug Offences. Its
accompanying report was published in 1998.(14)
Legislation based on Chapter 6 of the Model Criminal Code has been
passed in the ACT(15), Tasmania(16) and
Victoria.(17) The amendments to the Criminal Code
contained in the Law and Justice Legislation (Serious Drug Offences
and Other Measures) Bill 2005 are based on but not identical to the
model draft bill. Some of differences include the addition of:
aggravated offences when trafficking endangers children
offences relating to the manufacture or possession of precursors
for the purpose of manufacturing illicit drugs
a presumption of commercial purpose when a threshold quantity of
illicit drugs is involved(18), and
simple possession offences.
Schedule 1 commences 28 days after Royal Assent
Item 1 of Schedule 1 amends
Chapter 9 of the Criminal Code by inserting proposed Part
9.1 (Serious drug offences).
Proposed Division 300 of Part 9.1 of the
Criminal Code contains a number of preliminary provisions.
Important amongst these are:
a purpose clause this clause says that
one of the purposes of the Bill is to give effect to the 1988
Convention. Australia is a party to the Convention. The clause
signals that the Commonwealth is relying at least in part on the
external affairs power to support the Bill (proposed
definitions (proposed section 300.2).
Important definitions in proposed section 300.2 include controlled
drug , controlled plant , commercial quantity , marketable quantity
and trafficable quantity
- a statement of geographical jurisdiction. Extended
geographical jurisdiction category B applies to the
proposed Part 9.1 offences. This means that the
offences apply to Australian citizens, corporations and residents
anywhere in the world, subject to a foreign law
defence(19) (proposed section
a provision preserving the concurrent operation of State and
Territory law, even if different penalties, fault elements or
defences apply. This provision recognises that drug offences have
traditionally been the province of the States and Territories
(proposed section 300.4) and allows for the
continuing operation of State and Territory law.
Proposed Division 314 lists controlled
substances such as heroin, cannabis, LSD etc. Proposed
Division 301 enables additional substances and threshold
quantities to be added quickly to these lists. In prescribed
circumstances, the Minister can make interim regulations
declaring substances, plants and precursors to be controlled
substances and specifying commercial, marketable and trafficable
quantities. A substance or plant can be declared if the Minister is
satisfied both that taking the substance or plant would
create a substantial risk of death or serious harm and
that there is a substantial risk that the substance or plant will
be taken without appropriate medical supervision. Interim
regulations cannot be in force for more than 12 months
(proposed sections 301.1-301.5). The Explanatory
Memorandum states that the purpose of interim regulations is to
enable temporary prescription of substances and quantities while
expert advice is being obtained by the Minister.(20)
The Minister is also empowered to make emergency
determinations (proposed sections
301.6-301.11). The Minister must be satisfied
both that taking the substance would create a substantial
risk of death or serious harm and that there is an
imminent and substantial risk that the substance will be
taken without medical supervision Emergency determinations take
effect from the time of their registration and cannot be in force
for more than 28 days (although this period can be extended once
for up to 28 days). Emergency determinations must be publicly
announced, published on the Internet and in a newspaper circulating
in each State, the ACT and Northern Territory.
Interim regulations and emergency determinations are legislative
instruments and so must be tabled in Parliament and are subject to
Proposed Division 302 contains trafficking
offences. The expression traffic is defined to mean selling a
substance, or preparing, transporting, concealing or possessing a
substance with the intention of selling it (proposed
There are three trafficking offences with graduated maximum
penalties depending on the quantity of drugs involved:
trafficking in commercial quantities of controlled drugs life
imprisonment or 7,500 penalty units or both
trafficking in marketable quantities of controlled drugs 25
years imprisonment or 5,000 penalty units or both
trafficking in controlled drugs 10 years imprisonment or 2,000
penalty units, or both.
A penalty unit equals $110.
A number of features of these and other offences are worth
While the prosecution must prove that the
defendant intended to traffic in a substance, it need only prove
that he or she was reckless that the substance was a controlled
drug. In other words the offence is structured so that trafficking
in a controlled substance is not simply conduct to which a
fault element of intention would apply. Rather it is broken up into
physical elements of conduct (trafficking in a substance)
and circumstance (the substance is a controlled drug) to
which intention and recklessness apply, respectively. Recklessness
is easier than intention for the prosecution to prove.
Where commercial or marketable quantities are
involved, absolute liability applies to those circumstances. In
other words, the prosecution need not prove that the defendant put
their mind to the issue of whether a commercial or marketable
quantity (as defined) was involved. There is a partial defence
provided in proposed section 313.4.
If a person has prepared, transported, concealed
or possessed a traffickable quantity of a substance, then he or she
is deemed to have the necessary commercial intention required for
trafficking. The onus of proof is reversed and the defendant must
prove that he or she did not have the requisite intention or
belief. The burden placed on the defendant is a legal one meaning
that the defendant is put to proof on the balance of probabilities
(proposed section 302.5). This contrasts with the
usual burden placed on a defendant, which is an evidential burden
meaning that the defendant need only raise evidence suggesting a
reasonable possibility that something exists or does not
Proposed section 300.5 provides
that if it is necessary for the prosecution to prove that the
accused knew or was reckless about whether a substance or plant was
a controlled substance, plant etc, it is not necessary for the
prosecution to prove that the accused knew or was reckless about
the particular identity of the controlled drug, plant etc.
The Bill also provides defences to the offences
(see proposed Division 313).
Proposed Division 303 contains offences of
commercially cultivating controlled plants. Cultivation includes
engaging in, controlling, directing or financing cultivation
[proposed subsection 303.1(2)]. A person will be
cultivating for commercial purposes if he or she cultivates a plant
with the intention of selling it or its products or believing that
another person has that intention. The only controlled plant
specified in the Bill is cannabis.
As with the other offences contained in the Bill, the maximum
penalties available depend on the quantity of the controlled
cultivating a commercial quantity of a controlled plant for
commercial purposes maximum penalty of life imprisonment or 7,500
penalty units, or both
cultivating a marketable quantity of a controlled plant for
commercial purposes maximum penalty of 25 years imprisonment or
5,000 penalty units, or both
cultivating (any other quantity of) a controlled plant for
commercial purposes maximum penalty of 10 years imprisonment or
2,000 penalty units, or both.
Provisions in relation to fault elements,
absolute liability and presumptions applying to the trafficking
offences in proposed Division 302 are replicated
in proposed Division 303. For defences see
proposed Division 313.
Proposed Division 304 contains offences of
selling controlled plants. It will be an offence to:
sell a commercial quantity of a controlled plant maximum penalty
of life imprisonment or 7,500 penalty units or both
sell a marketable quantity of a controlled plant maximum penalty
of 25 years imprisonment or 5,000 penalty units or both
sell (any other quantity of) a controlled plant maximum penalty
of 10 years imprisonment or 2,000 penalty units or both.
Provisions in relation to fault elements and
absolute liability applying to the trafficking offences in
proposed Division 302 are also found in
proposed Division 304.
Proposed Division 305 contains offences
relating to the commercial manufacture of controlled drugs in
commercial, marketable and trafficable quantities. Manufacturing
for commercial purposes means manufacturing with the intention of
selling the substance or manufacturing believing that another
person intends selling the substance (proposed section
The fault elements and absolute liability provisions mentioned
earlier apply to offences of manufacturing commercial and
marketable quantities of controlled drugs. There is also a
presumption provision which reverses the onus of proof in the case
of trafficable quantities of a drug (proposed section
Penalties for manufacturing offences involving marketable or
trafficable quantities depend on whether the offence is an
aggravated one (ie where the commission of the offence exposes a
person under 14 to a controlled drug):
in the case of an aggravated offence of manufacturing
marketable quantities of controlled drugs, the maximum penalty is
28 years imprisonment or 5,600 penalty units or both. For a
non-aggravated offence, the maximum penalty is 25 years
imprisonment or 5,000 penalty units or both (proposed
in the case of an aggravated offence of manufacturing
controlled drugs, the maximum penalty is 12 years imprisonment or
2,400 penalty units or both. For a non-aggravated offence, the
maximum penalty is 10 years imprisonment or 2,000 penalty units, or
both (proposed section 305.5).
For further details of the factors that constitute aggravation ,
see proposed subsection 310.4(2)).
Precursors are the raw ingredients of controlled drugs.
Proposed Division 306 creates offences of
pre-trafficking in controlled precursors. A controlled precursor is
a substance prescribed by the proposed Act, an interim regulation
or an emergency determination. Precursors prescribed in the Bill
include ephedrine (used in the manufacture of methamphetamine) and
lysergic acid (used in the manufacture of LSD). Pre-trafficking
includes activities like selling a substance in the belief that the
buyer will use it to manufacture a controlled drug
(proposed section 306.1).
The Bill creates aggravated offences of pre-trafficking in
controlled precursors where a child under the age of 14 is involved
(for further details see proposed subsection 310.4
below). Relevant penalties and offences are as follows:
pre-trafficking in a commercial quantity of a
controlled precursor a maximum penalty of 28 years imprisonment or
5,600 penalty units or both in the case of an aggravated offence;
25 years imprisonment or 5,000 penalty units or both in any other
case (proposed section 306.2)
pLaw and Justice Legislation Amendment
(Serious Drug Offences and Other Measures) Bill
2005re-trafficking in a marketable quantity of a
controlled precursor 17 years imprisonment or 3,400 penalty units
or both in the case of an aggravated offence; 15 years imprisonment
or 3,000 penalty units or both in any other case (proposed
pre-trafficking (in other quantities) of a
controlled precursor 9 years imprisonment or 1,800 penalty units or
both in the case of an aggravated offence; 7 years imprisonment or
1,400 penalty units or both in any other case (proposed
As with the other offences, there are provisions relating to
recklessness and absolute liability. There are also a number of
presumptions which reverse the onus of proof (proposed
sections 306.5-306.8). For example, as a result of the
where a person has sold, manufactured or possesses a substance
without the appropriate legal authorisation, it is deemed that the
person intended to act unlawfully
in relation to presumptions relating to manufacture and
possession, the person is deemed to have acted with the requisite
commercial intention or belief.
The burden placed on the defendant as a result of these
presumptions is legal one ie to prove, on the balance of
probabilities, that he or she did not have the requisite intention
Proposed Division 307 deals with serious
import-export offences. These offences are currently found in the
Customs Act 1901 but will be repealed and transferred to
the proposed Act. Regulatory offences will remain in customs
The new offences relate to the import, export or possession of a
substance that is a border controlled drug or border controlled
plant or a border controlled precursor . Such drugs, plants and
precursors are those listed in proposed section
314.5, prescribed by regulation or specified in an
emergency determination. They include substances such as cannabis,
cocaine, heroin and LSD that have been imported or exported.
There are three categories of import-export offence:
importing or exporting border controlled drugs or plants
(proposed sections 307.1-307.4)
possessing unlawfully imported border controlled drugs or plants
or drugs or plants reasonably suspected of being unlawfully
imported (proposed sections 307.5-307.7)
importing or exporting border controlled precursors
(proposed sections 307.11-307.14).
Within each category there is a hierarchy of offences and
penalties depending on whether commercial, marketable or lesser
quantities are involved.
In general, provisions relating to recklessness(22)
and absolute liability applying to other offences, also apply to
the import-export offences. Presumptions reversing the onus of
proof also apply to offences of importing and exporting border
controlled precursors. Legal burdens are also placed on the
defendant in certain circumstances.
Proposed Division 308 contains possession
offences. It will be an offence to:
possess a controlled substance maximum penalty: imprisonment for
2 years or 400 penalty units, or both (proposed section
308.1). If such an offence is committed in a State or
Territory, the person can be dealt with as though the offence were
a State or Territory offence. A note explains that this allows for
drug users to be diverted from the criminal justice system to
receive the same education, treatment and support that is available
under State or Territory laws.
possess a controlled precursor, intending to use it to
manufacture a controlled drug maximum penalty: imprisonment for 2
years or 400 penalty units, or both (proposed section
308.2). The onus of proof is reversed if the defendant
possessed the substance without the requisite authorisation he or
she is presumed to possess the substance intending to manufacture a
possess plant material, equipment or instructions for the
commercial cultivation of controlled plants maximum penalty:
imprisonment for 7 years or 1,400 penalty units, or both
(proposed section 308.3)
possess any substance, equipment or instructions for
commercially manufacturing controlled drugs maximum penalty:
imprisonment for 7 years or 1,400 penalty units, or both
(proposed section 308.4). The onus of proof is
reversed if a person possesses an unauthorised tablet press, then
he or she is presumed to possess the tablet press with the
intention of using it to manufacture a controlled drug.
Proposed Division 309 deals with drug offences
that involve children. Children (ie individuals under the age of
18) are not criminally responsible for offences against
proposed Division 309 (proposed
section 309.1). This is because children are the
victims of these offences.
A number of offences, all carrying severe penalties (custodial
sentences ranging from 25 years to life imprisonment) are created
supplying controlled drugs to children (proposed section
supplying marketable quantities of controlled drugs to children
for trafficking (proposed section 309.3)
supplying controlled drugs to children for trafficking
(proposed section 309.4)
procuring children for trafficking in marketable quantities of
controlled drugs (section 309.7)
procuring children for trafficking in controlled drugs
(proposed section 309.8)
procuring children for pre-trafficking in marketable
quantities of controlled precursors (proposed section
procuring children for pre-trafficking in controlled precursors
(proposed section 309.11)
procuring children for importing or exporting marketable
quantities of border controlled drugs, plants or precursors
procuring children for importing or exporting border controlled
drugs or border controlled plants (proposed section
procuring children for importing or exporting marketable
quantities of border controlled precursors (proposed
procuring children for importing or exporting border controlled
precursors (proposed section 309.15).
Procuring for the purposes of trafficking means procuring a
child to sell a substance or, with the intention of selling the
substance, procuring the child to prepare a substance for supply or
to transport, guard or conceal it (proposed section
309.6). Procuring for the purposes of pre-trafficking
means procuring a child to sell a substance to a person where the
procurer believes that the buyer intends to use the substance to
manufacture a controlled drug (proposed section
In all the proposed Division 309 offences,
strict liability applies to the circumstance that the individual is
a child. In other words, the prosecution need not prove that the
defendant put their mind to whether the individual was a child.
However, the defendant has a defence of mistake of fact.
When a proposed Division 309 offence involves a
marketable quantity of a controlled substance, the prosecution need
not prove that the defendant put their mind to the issue of whether
the quantity was a marketable quantity. A defendant may have a
partial defence in proposed section 313.4.
In all the proposed Division 309 offences, the
prosecution must prove that the defendant was reckless about the
circumstance that the substance was a controlled substance.
However, prosecution need not prove that the defendant was reckless
about the particular identity of the controlled substance
(proposed section 300.5).
In relation to the offences of supplying controlled drugs to
children for trafficking (proposed sections 309.3 and
309.4), it is presumed that, if a trafficable quantity is
involved, the person believed that the child intended to sell some
or all of the controlled drug. The onus of proof is thus reversed
and the defendant bears a legal burden of proving that he or she
did not have that belief (proposed section 309.5)
ie on the balance of probabilities.
A defendant will not be guilty of the offences in
proposed sections 309.13-309.15 if he or she can
prove that he or she neither intended nor believed that another
person intended to sell the prohibited substance or plant. The
burden is a legal one, that is it must be proved on the balance of
The following offences are created by proposed Division
310. They are:
creating a danger of harm to a child under the age of 14 by
exposing them to the unlawful manufacture of a controlled drug or
controlled precursor (proposed section
310.2).(23) The maximum penalty is 9 years
imprisonment or 1,800 penalty units or both. The risk of harm must
be a real, not merely a theoretical risk. Additional features of
this offence are that the prosecution need not prove that a person
was actually placed in danger of serious harm and that the
prosecution need not prove that a particular person unlawfully
manufactured the drug or precursor
causing harm to a child under the age of 14 as a result of
exposing them to the unlawful manufacture of a controlled drug or
controlled precursor (proposed section 310.3). The
maximum penalty is 9 years imprisonment or 1,800 penalty units or
both. An additional feature of this offence is that the prosecution
need not prove that a particular person unlawfully manufactured the
drug or precursor
Children are not criminally responsible for these offences
because they are the victims of the offences (proposed
Strict liability applies to the following circumstances of these
Strict liability means that the prosecution need not prove that
the defendant put their mind to these matters. However, the
defendant has a defence of mistake of fact.
Aggravated offences are also created, designed to increase the
penalty imposed by a court:
manufacturing controlled drugs and manufacturing marketable
quantities of controlled drugs if the commission of the offence
exposes a person under the age of 14 years to the manufacture of a
controlled drug (proposed subsection 310.4(2))
pre-trafficking in controlled precursors and pre-trafficking in
commercial or marketable quantities of controlled precursors if the
commission of the offence exposes a person under the age of 14
years to a controlled precursor intended to be used in manufacture
or to the manufacture of a controlled drug (proposed
It is a defence to show on the balance of probabilities that the
commission of these offences did not give rise to a danger of harm
to the child. Harm includes catching a disease. The danger of harm
must be real rather than theoretical.(24)
The penalties for the aggravated offences are set out in
proposed sections 305.4-305.5 and 306.2-306.4.
The purpose of proposed Division 311 is to
enable a person to be prosecuted for serious drug offences by
aggregating dealings that involve smaller quantities of controlled
drugs or controlled precursors. There are three types of
combining different parcels on the same occasion
(proposed section 311.1) this provision covers the
situation where a person traffics in, sells, manufactures etc
different parcels of either the same or different controlled drugs,
border controlled drugs, etc. The total quantity of controlled
drugs etc will be determined by adding the weights of the
combining parcels from organised commercial activities
this type of aggregation can be used where the prosecution can show
that the defendant carried on a business involving commercial or
marketable quantities of controlled substances or border controlled
substances but cannot show individual quantities or transactions.
There is no limit on the amount of time over which the activity
takes place in order for this type of aggregation to occur.
combining parcels from multiple offences. These
provisions are designed to target those who repeatedly traffic in
small quantities in a defined time period (either 7 days in the
case of controlled substances or border controlled substances or 30
days in the case of import-export offences).
Proposed Division 312 sets out how quantities
of drugs, plants or precursors can be determined when those
substances are in mixtures and when dilute quantities of substances
A person has a defence to the offences in Part 9.1 (other than
under Division 307 ie import/export offences) if:
they engage in conduct in a State or Territory and the conduct
is excused under the relevant State or Territory law
(proposed section 313.1)
their conduct is excused under another Commonwealth law (section
10.5, Criminal Code)
they reasonably but mistakenly believe that their conduct was
not unlawful under a Commonwealth, State or Territory law
(proposed section 313.2)
Proposed sections 313.3-313.6 enable
alternative verdicts to be substituted if:
a defendant is found not guilty of an alleged offence but the
trier of fact (the judge or jury) is satisfied beyond reasonable
doubt that they are guilty of another Part 9.1 offence
(proposed section 313.3)
a defendant proves beyond reasonable doubt that they were
mistaken about the quantity of the controlled substance
and that, if their mistaken belief had been correct, they would
have been guilty of another offence attracting a lesser penalty
(proposed section 313.4)
a defendant proves beyond reasonable doubt that they were
mistaken about the identity of the controlled substance
and that, if their mistaken belief had been correct they would have
been guilty of another offence attracting a lesser penalty
(proposed section 313.5).
Proposed Division 314 sets out the trafficable,
marketable and commercial quantities of a range of controlled
drugs, controlled precursors, controlled plants, border controlled
precursors and border controlled precursors.
For example, in relation to controlled drugs, a trafficable
quantity of heroin is 2 grams, a marketable quantity is 250 grams
and a commercial quantity is 1.5 kilograms. A trafficable quantity
of cannabis is 250g, a marketable quantity is 25 kilograms and a
commercial quantity is 125 kilograms (proposed subsection
Part 2 of Schedule 1 contains
consequential and transitional amendments.
The effect of items 2 and 3 is
that controlled operations will be able to be conducted to obtain
evidence for the prosecution of controlled substances offences.
This is the new terminology introduced by proposed Part
9.1 (the current terminology in the Crimes Act is illegal
drug dealings ).
Section 22 of the Crimes Act currently allows a court to order
that a person charged with or convicted of a serious narcotics
offence remain in Australia or surrender their passport.
Items 4-11 change the terminology in section 22 of
the Crimes Act to reflect proposed Part 9.1.
Amendments to the Customs Act will repeal a number of
definitions that will no longer be used because of the enactment of
Part 9.1 of the Criminal Code.
Regulatory offences (as opposed to serious criminal offences)
involving controlled substances will remain in the Customs Act.
Additionally, some of the amendments relating to the Customs Act
will ensure that any substance or plant that is border controlled
will automatically become a prohibited import under the Customs Act
subject to the exemptions and authorisation processes set out in
the Customs (Prohibited Imports) Regulations 1956.
The Surveillance Devices Act enables emergency authorisations
for the use of surveillance devices to be obtained in certain
circumstances. These circumstances include where the use of a
surveillance device is urgently required to prevent the loss of
evidence in an investigation into an offence under section 233B of
the Customs Act (ie involving the importation or exportation of
narcotic goods). Item 68 repeals the reference to
section 233B because that section is being repealed (item
61). Item 69 inserts a reference to
offences under proposed Part 9.1.
Warrants to intercept telecommunications can be obtained by
certain law enforcement agencies to investigate what are called
class 1 and class 2 offences. The judge or AAT member issuing a
warrant must be satisfied of different things depending on whether
the warrant applied for relates to a class 1 or class 2
Class 1 offences are particularly serious offences that include
murder and terrorism offences. Item 70 removes the
reference to narcotics offence (26) in the definition of
class 1 offences and substitutes a reference to the import-export
offences in proposed Division 307 so that these offences will
become class 1 offences.
Class 2 offences are also serious offences and include offences
punishable by at least 7 years imprisonment involving loss of life,
serious personal injury, serious arson etc. Item 73 makes offences
against proposed Part 9.1 (other than Division 307, section 308.1
or 308.2) class 2 offences. Section 308.1 is a simple possession
offence and section 308.2 is an offence of possessing a controlled
precursor.(27) It would not be appropriate to define
these offences as class 2 offences.
Schedule 2 commences on the later of 28 days
after Royal Assent or the day on which the Optional Protocol to the
Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict enters into force for Australia.
However, the provisions do not come into effect if the Protocol
does not enter into force for Australia (clause
The purpose of Schedule 2 is to give effect to
the Optional Protocol to the Convention on the Rights of the Child
on the Involvement of Children in Armed Conflict. The Protocol is
designed to prevent the involvement of children in armed conflict.
It sets 18 years as the minimum age for direct involvement in armed
hostilities and compulsory recruitment and prescribes that States
Parties must raise the minimum age for voluntary recruitment beyond
the current minimum age of 15 years (the age set down in the
Convention on the Rights of the Child). It is estimated that
300,000 persons under the age of 18 years are involved in 30
Australia signed the Optional Protocol in December 2002 but has
not yet ratified it. In line with the Government s policy on
entering into treaties, the Optional Protocol was referred to the
Joint Standing Committee on Treaties in 2004 for inquiry and
report. During the Committee s inquiry, a number of issues were
raised by HREOC:
a suggestion for a new offence (rather than amendments to
existing Criminal Code offences) which followed the language of
article 4 of the Protocol more closely. HREOC suggested that a new
offence should use the term hostilities and pick up the notion of
armed groups as distinct from the armed forces of a state.
amending the Defence Act 1903 rather than
issuing new Defence Instructions to give effect to the Optional
Protocol (Defence Instructions (General) PERS 33-4 states that the
minimum voluntary recruitment age is 17 years).
The Committee reported in December 2004 and recommended that
Australia take binding treaty action in respect of the
Protocol.(30) The Committee did not adopt the suggestion
that the Defence Act be amended but did recommend that the relevant
Defence Instructions be readily available (for example on the
Department s website) and that they be amended to reflect Article
3(3) of the Optional Protocol.(31)
The provisions in Schedule 2 amend sections
268.68 and 268.88 of the Criminal Code to:
create new offences of using, conscripting or enlisting a person
under the age of 18 years into an armed force or group other than
the national armed forces (in the context of an international armed
conflict). The maximum penalties are imprisonment for 17 years, 15
years and 10 years, respectively (item 3)
create new offences of using, conscripting or enlisting a
person under the age of 18 years into an armed force or group other
than the national armed forces (in the context of an armed conflict
that is not an international armed conflict). The maximum penalties
are imprisonment for 17 years, 15 years and 10 years, respectively
Schedule 4 commences on Royal Assent
The amendments in Schedule 4 amend the Australian Federal Police
Act (AFP Act) to add to the functions of the AFP and amend the
secrecy provisions of the Act.
The AFP s functions are set out in section 8 of the AFP Act.
providing police services for the Australian Capital Territory
and the Jervis Bay Territory
providing police services in relation to Commonwealth laws and
property and to safeguard Commonwealth interests
anything incidental or conducive to the performance of the
functions that are specified in section 8.
The AFP has been deployed overseas for the purposes of
international peace and stability operations [and] multilateral and
bilateral law enforcement building capacity. (32) Recent
and current international deployments include East Timor, Papua New
Guinea, Nauru and Solomon Islands.(33) The Explanatory
Memorandum states that such deployments are covered by section 8
because they are incidental to the AFP s provision of police
services in relation to the laws of the Commonwealth and
safeguarding Commonwealth interests. It adds that the AFP s ability
to deploy overseas should be spelled out in the legislation.
Item 8 amends section 8 of the AFP Act to provide
that the AFP s functions include:
providing police services and police support services to assist
Australian or foreign law enforcement, intelligence or security or
government regulatory agencies
providing police services and police support services relating
to peace, stability and security in foreign countries.
Items 6-9 of Schedule 4 amend
section 60A of the AFP Act. Section 60A prohibits serving and
former AFP personnel from recording or communicating prescribed
information(34) with certain exceptions. These
exceptions are communications relating to the Witness Protection
Program which are authorised by the AFP Commissioner. Or recordings
or communications for the purposes of, or in accordance with duties
under the AFP Act, the Witness Protection Act 1994 (Cwlth)
or regulations made under those statutes.
The amendments will enable the AFP Commissioner to authorise the
disclosure of personal information where the individual consents to
or requests that this be done. The Explanatory Memorandum gives as
examples character and criminal history checks for pre-employment
security assessments.(35) The definition of personal
information in the Privacy Act 1988 (Cwlth) is used.
Proposed section 308.1 of the Criminal Code
creates an offence of possessing a controlled drug. Such drugs
include cannabis and heroin. The maximum penalty for this offence
is 2 years imprisonment or a fine of 400 penalty units, or both.
The section provides that if such an offence is committed in a
State or Territory, the person can be dealt with under the relevant
State or Territory law, thus allowing for diversion from the
criminal justice system.
There is probably little doubt that the Commonwealth s
ratification of international treaties such as the Single
Convention on Narcotic Drugs, 1961 and the 1988 Convention gives it
wide scope to legislate in the area of illicit drugs and, indeed,
to cover the field should it wish to do so. However, in looking at
the simple possession offence Parliament may wish to consider the
is the offence a serious offence suitable for inclusion in the
Criminal Code? MCOCC s 1998 report on Serious Drug
Offences did not contain a simple possession offence. MCOCC s
draft offences were intended to concentrate on the impact of
prohibitions and penalties on individuals engaged in organised
commercial trade in recreational drugs. (36)
while proposed sections 308.1 and 300.4
allow for the continued operation of State and Territory laws, it
would not appear that there is any guarantee that a person who
commits an offence of say, simple cannabis possession, in a
jurisdiction that allows for the offence to be expiated on payment
of a fine will not be proceeded against under Commonwealth
while the continued operation of State and Territory
laws is provided for, some jurisdictions are operating
pre-court or court diversion programs that are administratively
rather than legislatively based. What happens in these
The presumption of innocence has been described as the golden
thread of the criminal law. It means that the prosecution must
prove the defendant s guilt. However, many inroads have been made
to the presumption including in drug trafficking offences where the
burden of proof is reversed, presumptions (of guilt) may be applied
and strict and absolute liability may affect elements of the
In some of the offences created by the Bill, there is a
presumption that possession of a commercial or marketable quantity
of a controlled substance means that the person possessed it for
commercial purposes. A legal burden is then placed on the defendant
to prove (on the balance of probabilities) that he or she did not
have this intention. This provision reverses the onus of proof that
normally applies in criminal proceedings.
In its 1998 Final Report on Serious Drug Offences, the
Model Criminal Code Officers Committee recommended placing an
evidential not a legal burden on the accused. An evidential burden,
the usual burden placed on an accused, merely requires the
defendant to point to evidence suggesting a reasonable possibility
that something exists or does not exist. The report commented:
The overwhelming majority of offenders who appear
before the courts in a charge of trafficking arising from
possession are not caught with kilo quantities. If they are dealers
at all, they are small dealers. At this level there is considerable
risk that legal rules which deem an accused to be a dealer, on
proof of possession of a trafficable quantity, will catch a
significant proportion of mere users, who have no commercial
involvement in trafficking. The existing commitment to harm
minimisation as a central object of drug law enforcement requires
laws which discriminate, so far as it is possible to do so, between
those who are traffickers and those who are not.(39)
Subsequently, however, the Standing Committee of
Attorneys-General decided that a legal rather than an evidential
burden should be placed on the accused. This agreement is reflected
in Tasmanian and ACT legislation.
Parliament may wish to consider whether placing a legal burden
on the accused, together with other provisions which make some
inroads into the presumption of innocence, strikes an appropriate
Section 233B, Customs Act.
Minister for Defence Science and Personnel, Crimes (Traffic in
Narcotic Drugs and Psychotropic Substances) Bill 1989, Second
Reading Speech, House of Representatives, Hansard, 2
November 1989, p. 2395.
Explanatory Memorandum, p. 6.
Regulation 5, Customs (Prohibited Imports) Regulations.
Simon Bronitt & Bernadette McSherry, Principles of
Criminal Law, LawBook Co., 2005.
Cannabis Control Act 2003 (WA).
Misuse of Drugs Act 1990 (NT).
Drug Misuse and Trafficking Act 1985 (NSW).
Misuse of Drugs Act 2001 (Tas).
for information about Australian pre-court diversion programs and
drug court initiatives.
There are differences between the drugs courts in each
jurisdiction for example, in relation to eligibility criteria,
whether they have a legislative basis and whether there are limits
on the number of participants.
For constitutional reasons.
See: Ian Leader-Elliott, Elements of liability in the
Commonwealth Criminal Code , Paper presented to the AIJA
Magistrates Conference, Melbourne, 20-21 July 2001.
Criminal Code (Serious Drug Offences) Amendment Act
Misuse of Drugs Act 2001 (Tas).
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
as amended by the Drugs, Poisons and Controlled Substances
(Amendment) Act 200?
Explanatory Memorandum, p. 1.
That is, there must be a corresponding foreign offence where the
alleged offence by an Australian occurs overseas.
Explanatory Memorandum, p. 13.
See sections 13.3-13.5, Criminal Code.
Section 233B of the Customs Act was recently amended to separate
out the physical elements of conduct and circumstance in the
offence so that the prosecution does not have to prove an intention
to import a prohibited substance.
This includes exposing a child to the risk of catching a disease
that may result in serious harm to them [proposed
Proposed subsections 310.4(6)-(8).
Explanatory Memorandum, p. 110.
This term is defined in section 5 of the Telecommunications
(Interception) Act as an offence punishable as provided by
section 235 of the Customs Act 1901 . Item
71 repeals this definition as section 235 of the Customs
Act is repealed by item 64.
Attracting maximum penalties of 2 years imprisonment or 400
penalty units, or both.
Joint Standing Committee on Treaties, Review of treaties
tabled on 7 December 2004 (Previously tabled in
May and June 2004), December 2004.
ibid,. quoted on p. 104.
See recommendations 6 and 7 of the Committee s report.
Explanatory Memorandum, p. 119. See also the AFP s website at:
For a table of AFP overseas missions see:
Prescribed information is information obtained in the course of
performing duties under the AFP Act, the Witness Protection Act or
regulations made under those statutes (section 60A(3)).
Explanatory Memorandum, p. 121.
Model Criminal Code Officers Committee, Model Criminal Code.
Chapter 6. Serious Drug Offences. Report, October 1998, p.
In the ACT, for instance, section 171A of the Drugs of
Dependence Act 1989 (ACT) enables a police officer to serve an
offence notice on a person believed to have committed a simple
cannabis offence (eg possessing not more than 25 grams of
cannabis). The value of a penalty notice is $100. Alternatively,
the person could be charged, in which case the fine cannot exceed 1
penalty unit (paragraph 171(1)(a)). A penalty unit is $100.
Bronitt and McSherry, op. cit.
MCOCC, op. cit., p. 87.
8 August 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
© Commonwealth of Australia 2005
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
Published by the Parliamentary Library, 2005.
Back to top