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Chapter 5 - The national law enforcement environment: agencies, strategies and legislative initiatives
Introduction
5.1
The previous chapter discussed the strategic aspects of demand and harm
reduction and, in particular, the need to draw together all aspects of meeting
the challenge presented by AOSDs. This chapter focuses on the law enforcement
environment. It outlines the key Commonwealth agencies that deal with the
policing of AOSD internationally, at the border, and across Australian law
enforcement jurisdictions, and the notable strategies these agencies use in their
task of supply reduction. The chapter then discusses recent legislative
initiatives that will assist law enforcement agencies (LEAs) in this goal.
Commonwealth law enforcement agencies
5.2
Primary responsibility for supply reduction rests with the LEAs. As a
result of Australia's federal system of government, the management of this
process is both difficult and complex:
It is difficult to describe the management of Australia's Drug
Law Enforcement (DLE) in a simple way, as the relationship between DLE agencies
is complex; largely a product of the independent development of law enforcement
within Australia's federated system of government...However, what can be said is
that DLE occurs at many levels in Australia, from general duty policing to drug
unit and command levels, through to state and federal levels, as well as across
jurisdictions. Each level and jurisdiction differs in terms
of whether there is a dedicated or generalist organisational structure, and
whether this is primarily centralised or regionalised in nature. They also
differ according to preferred operational approaches, the number of specialised
personnel employed, legislation, agency resources and the character of the
different markets for illicit drugs themselves.[1]
5.3
Across the many law enforcement bodies that gave submissions and
evidence to the Committee, a consensus view appears to be that the dynamic
nature of the AOSD industry, in terms of its ability to rapidly develop new
drugs, markets and means of production, presents a 'considerable challenge for
Australian law enforcement'.[2]
...it is important to note that the AOSD market is a dynamic one,
and the potential for new AOSD to emerge and gain popularity is an ongoing
threat that law enforcement must continue to monitor and address.[3]
5.4
Enforcement of Commonwealth drug legislation, and hence of the spectrum
of offences that relate to AOSD, is undertaken principally by the Australian
Crime Commission (ACC), the Australian Federal Police (AFP), and the Australian
Customs Service (ACS). In brief, the roles of these agencies are as follows:
The Australian Crime Commission
The role of the ACC
5.5
The ACC is a Commonwealth statutory body working nationally with other
federal, state and territory agencies to counter serious and organised crime.
It aims to bring together all arms of intelligence gathering and law enforcement
to unify the effort against serious and organised criminal activity.
5.6
The ACC performs a number of functions, including:
- criminal intelligence collection and analysis;
- providing advice to the ACC Board on National Criminal
Intelligence Priorities; and
- investigating federally relevant criminal activity, and undertaking
taskforces as approved by the ACC Board.[4]
5.7
The ACC is engaged in a number of activities that contribute to supply-reduction
strategies under the National Drug Strategy and which, inter alia, focus on
reducing the AOSD market in Australia. In its submission, the ACC emphasises
that its role is one of investigation and intelligence gathering 'to enhance
national intelligence on the importation, manufacture and distribution of AOSD,
precursor chemicals and associated equipment.'[5]
5.8
Mr Alastair Milroy, Chief Executive Officer of the ACC, emphasised that
the ACC is a 'criminal intelligence and investigative agency with a mandate to
counter federally relevant activity,'[6]
and whose role is inherently strategic. The ACC aims, according to Mr Milroy:
...to bring together all arms of intelligence gathering and law
enforcement to unify the fight against serious and organised criminal activity.[7]
The ACC Special Intelligence
Operation determination on AOSD
5.9
The ACC Board of Management referred an AOSD Special Intelligence
Determination to the ACC in 2003. The determination authorises the ACC to 'develop
intelligence on the importation, production and trafficking in AOSD and
precursor chemicals in Australia.'[8]
Crucially, the making of the determination allows the ACC to use its coercive
powers.[9]
The issuing of the AOSD determination acknowledged that 'traditional law
enforcement methods were not as effective in this particular area as a result
of the growth of...[the AOSD] market.'[10]
In its strategic investigative and intelligence function, the ACC has sought to
'deliver informed and timely advice to drive an effective national response' to
the AOSD problem.[11]
5.10
Mr Milroy described the ACC's approach under the AOSD determination as
intended to establish 'strong collaboration arrangements with key stakeholders,
including jurisdictional and Commonwealth partner agencies and industry groups,
and to highlight the issue as a national priority for both the ACC and the
broader law enforcement community.'[12]
5.11
Similarly, Mr Michael Outram, Director of National Operations for the
ACC, characterised the ACC's approach under the AOSD determination as
collaborative, broad based and holistic:
That determination has worked very closely with industry and
academia, looking for the causes, the problems, and to get various views from
across the whole spectrum of people who have a stake in this as to why there
might be a problem and how it can be fixed.[13]
Coercive powers
5.12
Under section 7C of the Australian Crime Commission Act 2002, the
board of the ACC can authorise in writing a special investigation or
determination. Once the authorisation is made, the ACC is able to use its
coercive powers, allowing it to compel a person to attend a hearing before an
ACC Examiner, to produce documents and to answer questions. Under sections 22
and 23 of the ACC Act, authorised persons within the ACC are allowed to apply
for search warrants, with provision for applications by telephone. The AOSD
determination has been authorised by the ACC Board and the coercive powers are
available to be used in the ACC's investigations.
5.13
A number of submitters highlighted the significance of the coercive
powers for the intelligence and investigative role that the ACC plays in the
control of AOSD. The NSW Police submission states:
The ACC has made excellent use of its coercive powers to
identify rogue pharmacists and equipment suppliers. They have also arranged the
surrender of suspicious pill presses. A monitoring role on the internet eBay
site produced evidence of suspicious purchases of scientific glassware that led
the arrest and charge for an individual in Parkes for manufacturing prohibited
drugs. The ACC disseminates intelligence to NSW police pursuant to its charter.[14]
5.14
The ACC submission notes that, in undertaking the AOSD determination,
the ACC has 'directed its efforts and resources to areas not already specifically
targeted by other jurisdictions and to those where the ACC's special
intelligence operations tools could be most effective'.[15]
Furthermore:
The Determination has established a 'niche' area in national law
enforcement for the timely collection of strategic and tactical intelligence
which has proven successful in the disruption and deterrence of nationally
significant criminal activity.[16]
5.15
However, there have been some challenges to these powers since the
inception of the ACC Act, particularly to the abrogation of the privilege
against self-incrimination for Commonwealth, state and foreign offences, and
the abrogation of legal professional privilege.
5.16
In evidence to the Committee's review of the ACC Act in 2005, Mr John Hannaford,
an ACC Examiner, told the Committee that the coercive powers are exercised only
after deliberation within the ACC. Mr Hannaford noted that submissions are made
to the examiners regarding the use of the powers and that authorisation is not
automatic.[17]
The Amphetamine-Type Stimulant National
Action Plan
5.17
In May 2005, in furtherance of the ACC's work under the AOSD
determination and in recognition of the myriad issues relevant to developing an
effective response, the ACC Board requested the preliminary development of an
AOSD national action plan—since renamed the Amphetamine-Type Stimulants
National Action Plan—to outline current and potential further responses to the
problem.[18]
The plan, according to Mr Milroy:
...identified a lot of areas of responsibility, a lot broader than
just law enforcement. It addressed issues to do with health, education,
research, academia and so on which indicates that there is a considerable
amount of work that might need to be considered...[19]
5.18
The draft plan covered the following eight elements:
- policy debate and implementation;
- government legislative or regulatory responses;
- industry self-regulation;
- enhanced education;
- the role of the criminal justice system;
- strategic partnerships;
- research and development; and
- environmental concerns.
5.19
Recognising the intrinsically linked nature of the above elements, and
thus of any responses designed to solve the AOSD problem, in July 2005 the ACC
Board presented a draft of the national action plan to the Intergovernmental
Committee on Drugs (IGCD) to be reviewed and reported on. The ACC Board had
agreed:
...that the broad nature of the consultation required to ensure
inclusion of all relevant sectors, and the wide ranging nature of current and
potential strategies and activities, were beyond the scope of the
responsibilities and partnership relationships that are appropriate to the role
of the ACC.[20]
5.20
The ACC submission indicates that, with the IGCD, the ATS National
Action Plan is being progressed, and that consideration is being given to using
the draft plan as the basis for the development of a national ATS strategy.[21]
5.21
The ACC's constitutional focus is on law enforcement and intelligence
agencies. The Committee observes that the intelligence-gathering and
strategic-planning aspects around its investigations into nationally
significant crime at times require the ACC to consider an issue across a range
of agencies and stakeholders. The Committee commends the role of the ACC in
developing a broad ATS National Action Plan and in advancing it appropriately
through established forums.
The Australian Federal Police
5.22
The functions of the AFP in drug matters are split between federal
policing and ACT policing. The ACT Police indicated that MDMA use in the ACT is
increasing in line with the national trend. Recent ACT legislation supports
police in investigations related to precursor chemicals and equipment used in
the manufacture of AOSD.[22]
5.23
At the federal level, the AFP's role is 'to enforce Commonwealth
criminal law and protect Commonwealth and national interests from crime in Australia
and overseas'.[23]
Section 37(2) of the Australian Federal Police Act 1979 provides for a ministerial
direction setting out the government's priorities for the AFP. The current ministerial
direction, signed on 31 August 2004, directs the AFP to give special emphasis
to a number of activities. They include:
- crime prevention;
-
illicit drug trafficking;
- providing an effective contribution to the implementation of the
government's Tough on Drugs strategy;
- ensuring that the AFP's strategic directions in relation to these
and other activities appropriately complement priorities set at board level for
the ACC, particularly in the area of national criminal intelligence; and
- contributing to the government's international law enforcement
interests.[24]
The Australian Customs Service
5.24
The Australian Customs Service (ACS) is a national organisation
employing over 5,000 people around Australia and overseas. The agency's
principal role in relation to AOSD is border protection. The ACS has a fleet of
eight ocean-going patrol vessels and, 'using a combination of contracted
aircraft, Australian Defence Force patrol boats and aircraft, and sea-going
vessels of the Customs National Marine Unit,' operates Coastwatch, a civil
maritime surveillance and response service for a range of government agencies,
including the Australian Quarantine and Inspection Service and the ACS itself. [25]
5.25
The interception of AOSD and their precursors is a high priority for the
ACS, with a variety of techniques used to target high-risk aircraft, vessels,
cargo, postal items and travellers. These techniques include the application of
intelligence and computer-based analysis methods to risk assess the large
volume of movements of passengers and goods across the Australian border. These
approaches are complemented by the use of detector dogs, container X-ray and
various other detection technologies.[26]
5.26
The ACS investigates and prosecutes serious customs offences, including
those relating to AOSD and their precursors, under the Customs Act 1901
and the Criminal Code. The ACS also conducts financial investigations in
accordance with the Proceeds of Crime Act 2002 for recovery of assets
gained through the commission of criminal offences.
5.27
The Commonwealth law enforcement agencies, in conjunction with the state
and territory police, undertake a range of approaches to the reduction of
supply of illicit drugs in Australia. Their approach to this task is
collaborative. The Committee heard that a number of mechanisms exist to enhance
the efforts of these agencies. Following is a discussion of the notable
strategies through which LEAs and the ACC pursue supply reduction.
Information sharing
5.28
The efforts to reduce the supply of AOSD in Australia are pursued
through and enhanced by information-sharing arrangements between the ACC, AFP,
ACS and a range of international and domestic LEAs.
5.29
The AFP submission states that the AFP monitors and responds to global
trends in trafficking of precursor chemicals and 'the manufacture of...[AOSD],
the movement of specialist chemists, and the diversification of global
production centres'.[27]
5.30
International information sharing around AOSD is enhanced through the
Australian Illicit Drug Intelligence Program (AIDIP). In 2002, the National
Illicit Drug Strategy (NIDS), which was established to address issues
surrounding heroin, provided further funding to expand AIDIP to encompass AOSD.
The Joint Drug Intelligence Team, which is a strategic level partnership
between the AFP and the National Measurement Institute, administers this
expanded program. AIDIP provides physical and chemical analyses of illicit
drugs. The results allow the identification of regions of origin, manufacturing
trends and the nature and composition of drugs within specific markets, against
which new drug seizures may be searched. The information obtained assists the
AFP and ACS to allocate resources and to gain insights into particular illicit
drug markets.[28]
5.31
The effectiveness of the ACS in the control of AOSD at the border is
underpinned by, and directly related to, the quality of intelligence. Coastwatch,
for example, places the highest value on accurate and timely intelligence. The
ACS website states:
Coastwatch's effectiveness is directly related to the quality of
available information sources and intelligence assessments that flow from these
sources.[29]
5.32
The NSW Crime Commission acknowledged the valuable role played by the
ACS in the identification of international trends, which assists local law
enforcement agencies in detecting shipments and locating possible clandestine
laboratory sites.[30]
Training and education
5.33
The AFP administers the Law Enforcement Cooperation Program (LECP),
which provides training programs, strategic law enforcement seminars and
workshops, equipment and short-term attachment and/or exchange of law
enforcement personnel. The AFP submission states, for example, that 'LECP
funding has enabled specific programs to be delivered in the region on
identification of precursor chemicals and clandestine laboratories'.[31]
5.34
Both international and domestic knowledge on AOSD is enhanced through
the National Chemical Diversion Congress (NCDC). This annual event is sponsored
by the ACC and the Attorney-General's Department, and brings together law
enforcement, health care, legal, and pharmaceutical industry representatives to
discuss issues relating to the diversion of chemicals into the manufacture of
AOSD, particularly amphetamines. The 10th Annual Congress was held
on the Gold Coast in October 2006, and included keynote speakers from the US, Germany
and India. The 9th Annual Congress was held in Darwin in October
2005, and included representatives from Australia, New Zealand, China, Hong
Kong, the Philippines, Thailand, Samoa, Fiji, Papua New Guinea, Germany, Japan,
the Netherlands, Belgium, Canada and the USA.
5.35
The Queensland Crime and Misconduct Commission noted the value of this
forum:
The ACC's commitment to national forums such as the annual
National Chemical Diversion Conference and National Criminal and Intelligence
Operations Forum (NCIOF) enhances the ability of all LEAs in Australia to
become aware of emerging issues and to proactively target participants in the
AOSD market.[32]
Joint operations
5.36
The Committee heard that there is currently a high level of
collaborative and joint operations between the various LEAs. Mr John Valastro,
ACS National Manager, Law Enforcement Strategy and Security Branch, told the
Committee:
Customs does not work in isolation with respect to this issue.
Amphetamines and other synthetic drugs present an ongoing challenge to
Australian law enforcement and we are committed to meeting this challenge. Key
respects of how we are doing this include, with regard to risk assessment, our
results being based on intelligence-driven risk assessment philosophy. We
recognise that the majority of international movements are legitimate and target
resources at areas that are high risk for illegal activity. The ACC is an
important partner in helping us do this effectively.[33]
5.37
Internationally, the AFP liaises with other agencies in the region and
provides assistance to establish regional transnational crime centres. Although
such centres are intended to assist investigations into all crime, the AFP's
submission describes these centres as:
...[a] fulcrum for effective drug investigations, allowing proper
coordination with intelligence and related crime such as money laundering.[34]
5.38
Between 1998 and 2005, the AFP's international representation has
increased from maintaining a presence in 14 countries to having 88 officers in
26 countries.[35]
In addition, the AFP has signed a number of MOUs with key international law
enforcement partners, particularly those from within the Asia Pacific region;
the MOUs encompass measures to target illicit drug trafficking. The Committee
were informed that other agreements are being considered and progressed as
appropriate.[36]
5.39
The ACC is a leading agency in the planning and administration of
domestic joint operations. A key feature of this role is a nationally focused
effort, involving cooperation between state, territory and Commonwealth law
enforcement and relevant partner agencies. The ACC shapes strategic and
operational decisions and activities through appropriate intelligence products
and services, as well as by providing advice on law and other regulatory
reforms.[37]
5.40
The AFP routinely undertakes collaborative operations with state law
enforcement agencies. Additionally, the ACS notes that Customs maintains strong
relationships with domestic law enforcement agencies, regulatory agencies and
the law enforcement intelligence and research communities. The ACS submission states:
These relationships encompass active participation in joint
agency groups and taskforces, intelligence exchange, and collaboration on
research products. Much of this work either encompasses, or is specifically
focused on AOSD matters.[38]
5.41
Mr Valastro outlined the ACS's involvement with state agencies:
[The ACS works]...pretty closely with state law enforcement as
well, and that is every single state because we have a presence there.
Essentially we work with the AFP primarily in relation to these types of
offences but, where there are opportunities for other agencies to be involved,
we certainly bring them on board as well.[39]
5.42
The Committee acknowledges that LEAs employ a range of mechanisms to
address the issue of AOSD at both an international and domestic level. The
development of partnerships and relationships between various LEAs at both the
federal and state levels is at the centre of a successful law enforcement
response. The Committee encourages all relevant agencies to continue to pursue
and develop these collaborative arrangements.
Legislative initiatives
5.43
The effectiveness of the Commonwealth drug law enforcement response to
AOSD has been enhanced by the recent enactment of legislation that has
consolidated all federal drug offences into the Criminal Code Act 1995
and increased the uniformity of drug offences in Australia.
Commonwealth law
5.44
Commonwealth drug law is broadly concerned with the import and export of
illicit drugs. Until 2005, Commonwealth drug offences were contained in the Customs
Act 1901 and the Crimes (Trafficking in Narcotic Drugs and Psychotropic
Substances) Act 1990.[40]
Section 233B(1) of the Customs Act 1901 contained the two most important
offences: importing prohibited imports and possessing prohibited imports. By
definition, narcotics were 'prohibited imports': subsections 233B(2) and (4).[41]
5.45
On 5 December 2005, the Law and Justice Legislation Amendment
(Serious Drug Offences and Other Measures) Act 2005 (the SDO Act) commenced.
The SDO Act moved previous import and export offences from the Customs Act
1901, together with a number of new drug offences, into the Criminal
Code Act 1995.
5.46
In restructuring the Criminal Code drug offences, the SDO Act
introduced offences for the import, export, manufacture or possession of
precursors—chemical substances used in the manufacture of drugs.[42]
The amendments also include offences for the possession of equipment for
manufacturing illicit drugs, and aggravated offences where trafficking or
manufacture involves children.
5.47
These amendments correspond to Australia's obligations under the United Nations Convention against Illegal Trade in Narcotic
Drugs and Psychotropic Substances.[43]
5.48
The development of the SDO Act was a collaborative effort involving the
relevant government agencies. As Customs outlined in its submission:
Customs was closely involved in the development of the SDO Act,
which consolidated all federal drug offences into the Criminal Code Act 1995
and increased the uniformity of drug offences in Australia. Of particular note
in relation to AOSD, the SDO Act includes provision for newly emerged AOSD to
be emergency scheduled, enabling rapid legislative response to emerging
threats. Also, a number of new offences and increased penalties in relation to
AOSD precursors were significant enhancements introduced through the SDO Act.[44]
5.49
The explanatory memorandum to the SDO Bill states that section 300.4 of
the bill (now the SDO Act) allows overlapping state and territory drug offences
to operate alongside the offences in part 9.1 of the Criminal Code. This
is similar to jurisdictional arrangements in other areas of the criminal law,
such as terrorism, fraud, computer crime, money laundering and sexual
servitude. The explanatory memorandum concludes:
It is intended that drug offences will continue to be
investigated in accordance with the established division of responsibility
between federal and State and Territory law enforcement agencies.[45]
5.50
The new section 300.3 of the Criminal Code includes a statement
of geographical jurisdiction such that the offences apply to all Australian
citizens, corporations and residents anywhere in the world, although with some
qualification.
5.51
The basis of the SDO Act amendments was the Model Criminal Code developed
by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General,
which consists of Commonwealth and state officers. The intention behind the
amendments was to develop criminal legislation that could be adopted by all
Australian jurisdictions. The ACT, Tasmania and Victoria have passed
legislation based upon the Model Criminal Code, with some variations.[46]
5.52
The Committee considers that the effectiveness of the SDO Act amendments
to the Criminal Code could be lessened if the states do not enact
similar provisions, particularly in relation to precursor offences.
Offences and penalties: section
300.2 of the Criminal Code
5.53
Section 300.2 of the Criminal Code defines the key concepts of 'controlled
drug' and 'controlled precursor'. 'Controlled drug' is defined to mean a
substance, other than a growing plant:
- listed or described as a controlled drug in section 314.1; or
- prescribed by regulations under paragraph 301.1(1)(a); or
- specified in a determination under paragraph 301.6(1)(a).
5.54
A similarly constructed definition exists for 'controlled precursors'.
5.55
Division 301 of the Criminal Code allows a swift response to the
entry of new precursors and drugs to the illicit drug market through
proscription of controlled substances by regulation or specification under
determination, rather than through legislation. In particular, the emergency
determination procedures allow the Minister for Justice and Customs to make a
determination by legislative instrument that a substance is a controlled drug,
a controlled precursor or a border controlled drug or precursor.
5.56
The offences and penalties are arranged in a hierarchy according to the
quantity of drugs involved and in which the greatest maximum penalties—7,500
penalty units or life imprisonment—are incurred for a commercial quantity.[47]
A marketable quantity incurs a penalty of 25 years or 5,000 penalty units or
both, and a simple possession offence where no specific quantity is involved
attracts a penalty of 10 years or 2,000 penalty units or both. What is classed
as a commercial or marketable quantity varies according to the substance
involved.
Import/export of border controlled
drugs
5.57
The Commonwealth Director of Public Prosecutions (CDPP) submitted that division
307 of the Criminal Code provides for offences relating to the import
and export of 'border controlled drugs'. Section 314.4 lists border controlled
drugs and sets out quantities relevant to the various offences. This list
includes amphetamines and other synthetic drugs.
5.58
Sections 307.1 to 307.4 of the Criminal Code relate to importing
and exporting border controlled drugs. The penalty where a commercial quantity
is involved is imprisonment for life or 7,500 penalty units ($825,000), or
both. Where a marketable quantity is involved, the penalty is 25 years
imprisonment or 5,000 penalty units ($550,000), or both. There is a new tier of
offence that applies to any quantity, which carries a penalty of 10 years or
2,000 penalty units ($220,000), or both, provided there is a commercial
purpose. In addition, there is an offence that applies to any quantity, which
carries a penalty of two years or 400 penalty units ($44,000), or both.[48]
Import/export of border controlled
precursors
5.59
Division 307 of the Criminal Code introduces new offences for the
importation or exportation of border controlled precursors with the intention
of manufacturing a controlled drug. Section 314.6 of the Criminal Code
lists border controlled precursors and sets out quantities relevant to the
various offences. Fourteen precursor chemicals are currently listed. A
Ministerial Council on Drug Strategy working party is examining the question of
whether any additional precursors should be added to the section 314.6 list,
and, if so, what quantities of those precursors should relate to each tier of
the offence.
5.60
The penalty where a commercial quantity is involved is 25 years
imprisonment or 5,000 penalty units ($550,000), or both. Where a marketable
quantity is involved the applicable penalty is 15 years or 3,000 penalty units
($330,000), or both. In addition, there is an offence that applies to any
quantity, which carries a penalty of seven years or 1,400 penalty units
($154,000), or both.[49]
The set quantities for commercial and marketable offences are based on the
amount of precursor necessary to manufacture the corresponding amount of a
border controlled drug.[50]
Domestic offences: trafficking in
controlled drugs
5.61
Division 302 of the Criminal Code provides for offences relating
to trafficking in controlled drugs. Section 314.1 lists controlled drugs and
sets out quantities relevant to the various offences. This list includes amphetamines
and other manufactured drugs.
5.62
Section 302.1 provides that a person traffics in a controlled drug if:
- the person sells the substance; or
- the person prepares the substance for supply with the intention
of selling any of it or believing that another person intends to sell any of
it; or
- the person transports the substance with the intention of selling
any of it or believing that another person intends to sell any of it; or
- the person guards or conceals the substance with the intention of
selling any of it or assisting another person to sell any of it; or
- the person possesses the substance with the intention of selling
any of it.
5.63
The applicable penalty where a commercial quantity is involved is
imprisonment for life or 7,500 penalty units ($825,000), or both. Where a
marketable quantity is involved the applicable penalty is 25 years imprisonment
or 5,000 penalty units ($550,000), or both. There is a lowest-tier offence
applying to any quantity, which carries a penalty of 10 years or 2,000 penalty
units ($220,000), or both.[51]
Domestic offences: pre-trafficking
in controlled precursors
5.64
'Pre-trafficking' is the label given to various illicit dealings in
precursor chemicals; this range of offences is covered in division 306 of the Criminal
Code.
5.65
Section 314.3 lists controlled precursors and sets out quantities
relevant to the various offences. Pre-trafficking covers four types of conduct.
Section 306.1 provides that a person pre-trafficks in a precursor if:
- they sell the precursor believing that the buyer or another
person will use it to manufacture a controlled drug; or
- they manufacture that precursor with the intention of using any
of it to manufacture a controlled drug and with the intention of selling any of
the drug so manufactured or believing that another person intends to do so; or
- they manufacture that precursor with the intention of selling it
to another person and believing that the other person intends to use any of it
to manufacture a controlled drug; or
- they possess the precursor with the intention of using any of it
to manufacture a controlled drug and with the intention of selling any of the
drug so manufactured.
5.66
Division 306 of the Criminal Code sets out new domestic offences
of pre-trafficking in controlled precursors. The offences have the same
three-tier structure and penalties as the offences for importing precursors: 25
years or 5,000 penalty units ($550,000), or both, for a commercial quantity; 15
years or 3,000 penalty units ($330,000), or both, for a marketable quantity;
and seven years or 1,400 penalty units ($154,000), or both, for any quantity.
The quantities for commercial and marketable quantities are based on the amount
of precursor necessary to manufacture the corresponding amount of border
controlled drug.[52]
Commercial manufacture of drugs
5.67
Division 305 of the Criminal Code addresses the commercial
manufacture of controlled drugs. 'Manufacture' is defined in section 305.1 to
mean any process by which a substance is produced. This includes the process of
extracting or refining a substance and the process of transforming a substance
into another substance. A person manufactures a substance when the person is
engaged in its manufacture, exercises control or direction over its
manufacture, or provides finance for its manufacture. The commercial dimension
of this offence is reflected in the requirement contained in section 305.2 that
to be guilty of a section 305.1 offence a person must manufacture the substance
with the intention of selling any of it or believing that another person intends
to sell any of it.
5.68
Division 305 of the Criminal Code also provides for three tiers
of offences based on quantity. The penalties are the same as for the
trafficking offences: imprisonment for life or 7,500 penalty units ($825,000),
or both, for manufacturing a commercial quantity of controlled drugs;
imprisonment for 25 years or 5,000 penalty units ($550,000), or both, for
manufacturing a marketable quantity; and imprisonment for 10 years or 2,000
penalty units ($220,000), or both, for manufacturing any quantity of drugs.[53]
Drug offences involving children
5.69
Division 309 of the Criminal Code contains offences directed at
adults who involve children under 18 years of age in the drug trade. Section
309.3 lists the offence of supplying a marketable quantity of controlled drugs
to children for trafficking, which carries a penalty of imprisonment for life
or 7,500 penalty units ($825,000), or both. Where a child is supplied with any
quantity of controlled drugs for trafficking, section 309.4 provides for a penalty
of 25 years imprisonment or 5,000 penalty units ($550,000), or both.[54]
Adequacy of the legislation
5.70
Comparing the old and new legislation, Dr Andreas Schloenhardt, from the
University of Queensland, observed that the new legislation covers precursors
more adequately than did the offences contained in the Customs Act 1901.
The new division 306 specifically provides penalties for offences involving
precursors.[55]
5.71
The Australian Federal Police (AFP) submission to the inquiry indicates
that the amendments to the Criminal Code have had 'significant
implications for Commonwealth law enforcement.'[56]
In particular, the submission notes that the tiering provisions have improved
the AFP's ability to focus on importation and trafficking of large amounts of
illegal drugs and precursors. The submission states that the scope of operation
of the legislation is expanded through section 300.3, which establishes
jurisdiction over Australians operating overseas. This is achieved through the
application of division 15 of the Criminal Code, which allows some
criminal activities engaged in by Australian citizens or residents when abroad
to be subject to Australian criminal law.
5.72
The addition of Commonwealth offences for selling, manufacturing or possessing
precursors has filled gaps in the previous legislative regime. In evidence, Ms Melinda
Cockshutt, from the Commonwealth Attorney-General's Department, observed that,
in particular, the creation of parallel domestic offences enabled the AFP to
pursue convictions for drug offences where the offences might not have involved
the import or export of the controlled precursor.[57]
5.73
Evidence from several witnesses suggest that, at a Commonwealth level,
the scope and intent of the amendments introduced by the SDO Act are currently
adequate to combat AOSD importation, manufacturing and trafficking effectively.[58]
The Attorney-General's Department submitted:
The SDO Act represents a significant step
forward in the fight against ATS [AOSD] and drugs in general. It has created a
range of offences to inhibit the supply of ATS to the Australian community
through decreasing ATS manufacture and trafficking. It also aims to protect
children from the harms associated with ATS. The Commonwealth continues to
encourage all States and Territories to include similar offences in their
individual drug legislation.[59]
5.74
Similarly, the ACC endorsed the effectiveness of the new precursor
offences and regulatory measures:
The enactment of the Law and Justice Amendment (Serious Drug
Offences and Other Measures) Bill 2005, coupled with the actions of
rescheduling by the National Drugs and Poisons Schedule Committee, will
significantly decrease the risk of diversion of precursor chemicals
(particularly pseudoephedrine) in Australia.[60]
5.75
Dr Schloenhardt identified significant improvements in the application,
construction and substantive operation of the new legislative regime, saying
that it removed potential ambiguity of judicial interpretation and was easier
to use:
The legislation does remove many of the difficulties and
uncertainties of former s 233B Customs Act 1901 (Cth). The principles under
Chapter 2 of the Criminal Code (Cth) now apply more consistently to federal
drug offences and there is less room for judicial interpretation of the
elements of federal drug offences. The new legislation is significantly easier
to use (and understand).[61]
5.76
The Committee has recommended elsewhere that the legislation dealing
with illicit drugs be evaluated. However, the Committee also considers that the
effectiveness of the provisions of SDO Act should be
evaluated within two years of commencement, and that it be reviewed every two
years after that to ensure that it is achieving the objectives set for it.
Recommendation 8
5.77
The Committee recommends that a review of the provisions of the Law
and Justice Legislation Amendment (Serious Drug and Other Offences) Act 2005
be undertaken not later than December 2007, and that it be amended to provide
for regular reviews of the effectiveness of the provisions at two-year
intervals after the initial review.
The deterrent potential of
penalties
The prohibition model
5.78
The penalties under the Model Criminal Code are intended to act as a
substantial deterrent to AOSD and precursor importation, manufacture and
distribution. The Commonwealth Director of Public Prosecutions submission
states:
Offences relating to the importation and possession of drugs,
including amphetamines and other synthetic drugs, are amongst the most serious
Commonwealth offences. The CDPP submits in the courts that substantial and
deterrent sentences are required in order to protect the community.[62]
5.79
However, a number of witnesses questioned the deterrent value of
penalties for drug offences:
Harsher penalties for users will do nothing to deter them, and
will only exacerbate the us and them dynamic.[63]
5.80
In his submission, Andrew Macintosh, the Deputy
Director of the Australia Institute, argued that '[p]eople with a propensity to
use drugs are generally not deterred by legal sanctions'.[64]
A prohibition approach—in which 'the manufacture, import, supply, possession
and use of these drugs are crimes carrying harsh penalties'—is based on the
deterrence theory, which assumes that increasing the costs of supplying and
using drugs will reduce the market size and thus the harms that flow from it.[65]
Mr Macintosh argued that this reasoning was flawed, as decisions regarding drugs
were rarely made rationally:
This theory assumes that people's decisions are a product of
rational processes whereby the costs and benefits of a proposed course of
action are meticulously weighed before an action is taken.[66]
5.81
Dr Schloenhardt also raised concerns about the deterrent value of
penalties. He expressed doubt that the new offences and the slightly higher
penalties contained in the Criminal Code 'will deter large-scale
operators in a growing illicit market'.[67]
Dr Schloenhardt explained that the deterrent value of penalties may affect
the consumers rather than the producers of AOSD:
People can be deterred by penalties and
not use drugs. I do not think any serious drug trafficker can really be
deterred by our penalties. He has other ways to keep himself immune from
investigation.[68]
Consistency
5.82
The Committee considers that another factor with the potential to
undermine the deterrent value of the new penalties is the national
inconsistency of AOSD-related laws.
5.83
The Committee is concerned that inconsistency between jurisdictions in
the severity of sentences imposed for the same category of AOSD-related crime
will have the potential to undermine the deterrent effect of those penalties in
two ways. First, where the principles underlying the calculation and
application of penalties are unclear, those penalties are unlikely to act as a
specific or known deterrent. Second, where state systems are producing
disparate penalty or sentencing outcomes, the deterrent effect of the federal
laws could, at best, be undermined and, at worst, be consciously avoided by
organised criminals selecting certain jurisdictions in which to undertake their
activities.
5.84
Accordingly, the Committee supports the adoption of offences and penalty
regimes based on the SDO Act by those states that have not yet done so.
5.85
The Committee is of the opinion that the effectiveness of the SDO Act
amendments to the Criminal Code would be strengthened by greater
national consistency in the offence and penalty regimes in place to combat
AOSD-related crime.
Recommendation 9
5.86
The Committee recommends that the states and territories consider
adopting drug offence regimes based on the Law and Justice Legislation
Amendment (Serious Drug and Other Offences) Act 2005 with the aim, as far
as is practically possible, of establishing greater national consistency in the
offences and penalties that apply to crimes related to amphetamines and other
synthetic drugs (AOSD).
State legislation
5.87
Drug offences under state legislation have traditionally focused on use,
possession and trafficking, and have had no international aspect, which is the
province of federal laws. Inevitably, no two states are exactly alike in their
offence and penalties legislation, although some states have at least partially
adopted the regime set out in the Model Criminal Code. In its submission, the
ACC noted:
...there remains some lack of uniformity of drug offences
throughout Australia...The lists of controlled substances and quantities covered
by State and Territory drug legislation also vary by jurisdiction.[69]
5.88
The Bills Digest to the SDO Act notes, for example, that 'there
is considerable variation between jurisdictions in the area of simple cannabis
possession.'[70]
In the ACT, Northern Territory, South Australia and Western Australia,
possession of small amounts of cannabis—an amount that is 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, while possession of up to 50 grams attracts a fine of $200. However, in
NSW and Tasmania, the penalties for possession of cannabis are more severe: a
fine of up to $2,200 or two years imprisonment in NSW and a fine of up to
$5,000 or two years imprisonment in Tasmania.[71]
5.89
The problems in operating across these disparate legislative regimes
were highlighted in evidence by the Detective Inspector Frederick Scupham, Assistant
Divisional Officer, Organised Crime Division, Western Australia Police, who told
the Committee that the constraints imposed by state borders militate against
effective policing—principally because the criminals are not similarly
constrained. He continued:
A recent operation between the WA Police, the Australian Crime
Commission and New South Wales Police was Operation Schumacher...it was very
evident that the criminal element were in fact working on a national basis...It
was really only...the facility under the ACC Act that enabled us to [police them
nationally] without having restrictions or borders.[72]
5.90
Detective Inspector Scupham indicated that variations in drug
legislation from state to state add to the limitations on special projects,
irrespective of how closely the state agencies work.
5.91
Detective Chief Superintendent Denis Edmonds, Officer in Charge,
Strategy and Support Branch, Crime Service, South Australia Police, reinforced
the need for uniformity in drug laws across the states. He told the Committee
that, while there is movement towards national consistency for the more serious
offences such as drug manufacture and trafficking, and some consistency on the
code of conduct for reporting the sale of precursor chemicals, jurisdictional
differences remain for possession of precursor chemicals or clandestine
laboratory equipment.[73]
5.92
Dr Andreas Schloenhardt, from University of Queensland, also noted the
potential for the fragmented state regimes to favour organised crime. He
observed that the 'modern and sophisticated' Commonwealth laws widen the gap
between the federal and state drug offence regimes. [74]
Dr Schloenhardt told the Committee:
...if you look at the present-day drug offences that exist in Queensland
compared to those of the Commonwealth, the gap could not be wider. There is no
precursor offence in Queensland. It is a sophistication in detail that our drug
misuse act does not have.[75]
5.93
The Committee notes that the Queensland parliament passed amendments to
the Drugs Misuse Act 1986 earlier this year which go some way towards
criminalising the possession of certain items and substances that are
precursors for the manufacture of dangerous drugs.
5.94
Like Queensland, New South Wales has not adopted the model drug
legislation, although there have been amendments to the Drug Misuse and
Trafficking Act 1985 that prohibit possession of precursors as well
as possession of equipment such as the glass pipes used to smoke ice.
5.95
In his submission, Dr Schloenhardt observed that the diversity of and
discrepancies in the drug laws of the Commonwealth, the states and the
territories remain a significant obstacle in criminalising AOSD-related
activities.[76]
Dr Schloenhardt expressed the view that the work of investigators and
prosecutors would be made easier by a more uniform approach:
In the long-term, it may be desirable to consolidate
jurisdiction over drug offences (along with other aspects of criminal law and
criminal justice) in a single, federal jurisdiction, thus avoiding
administrative obstacles as well as discrepancies between legislation.[77]
5.96
Similarly, the Queensland Alcohol and Drug Research and Education Centre
argued:
The current legislative and regulatory powers available to
criminal justice agencies in Australia for the control of illegal drug markets
are largely adequate. Greater consistency in laws and regulation between state
jurisdictions may improve regulatory effectiveness.[78]
5.97
The Committee notes that there has not been adequate time since the SDO
legislation commenced to collect data on prosecutions under the new legislation.
In evidence, the Committee was advised that there are several bodies that could
monitor the success of the new legislation, as it appears that the Model
Criminal Code Officers Committee no longer performs that function.[79]
5.98
The Committee considers that it is crucial to measure the effectiveness
of the current legislation as part of considering the longer-term possibility
of developing a national drug law that encompasses federal and state
jurisdictions as well as standardised penalties and systems for administering
international and domestic offences.
Recommendation 10
5.99
The Committee recommends that the Commonwealth government undertake
regular reviews of the effectiveness and interaction of Commonwealth and state
drug legislation.
Recommendation 11
5.100
The Committee recommends that the Commonwealth government continue to
work with the state and territory governments to encourage national consistency
of offences relating to amphetamines and other synthetic drugs (AOSD) and
precursor chemicals.
International treaties and
obligations
5.101
The principal conventions on drugs that govern Australia's international
obligations are:
- the United Nations Single Convention on Narcotic Drugs of 1961,
as amended by the 1972 protocol;
- the United Nations Convention on Psychotropic Substances of 1971;
and
- the United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances of 1988.
5.102
During the course of the inquiry, and as discussed in chapter 2, the
issue of international involvement in the supply of AOSD and precursors was
raised. In particular, the Committee heard that there is growing evidence of
trafficking of AOSD to and through the South Pacific islands. Anecdotal
evidence supports concerns in Australia and the international community about
growing levels of AOSD abuse in some Pacific island nations.[80]
Many South Pacific countries do not have adequate laws and penal codes to
criminalise the activities associated with AOSD manufacture, trafficking and
sale. Further, only five of the 15 South Pacific nations have ratified relevant
international instruments and the three key UN drug conventions listed above. Dr
Schloenhardt argued:
The lack of comprehensive drug laws along with weaknesses in the
regulation of the financial markets in many countries make the Pacific islands
particularly vulnerable to AOSD and other drug trafficking and to the
laundering of proceeds of AOSD and other drug-related crime.[81]
5.103
The need to strengthen regional approaches to the control of AOSD was
identified in a number of submissions. The AFP emphasised the importance of
strong international law enforcement cooperation in AFP operations. Examples
include:
- the AFP's international network, which provides a conduit for
intelligence obtained and for coordination of overseas operations affecting Australia's
interests. The AFP submission states that '[a]pproximately 84 per cent of all
high-impact work undertaken by the AFP in 2003-04 involved the international
network;[82]
- the establishment of transnational crime centres for drug
investigations and related crime; and
- the signing of memoranda of understanding (MOUs) with key
international law enforcement agencies. The AFP states that the MOUs focus on
combating transnational crime and developing police cooperation, and encompass
measures to target illicit drug trafficking.[83]
5.104
In evidence, Federal Agent Michael Phelan, National Manager, Border
Intelligence Network, Australian Federal Police, told the Committee that the
AFP posts in Western Europe are '100 per cent devoted to AOSD intelligence
gathering, as are posts in the Philippines, Malaysia, Indonesia and Bangkok'.[84]
5.105
The AFP submission also notes that amendments to the Criminal Code
'broadened the scope of law enforcement operations to include greater
geographical jurisdiction over Australians operating overseas'.[85]
This is a reference to section 8(1)(bf) of the Australian
Federal Police Act 1979, a provision that, according to the explanatory
memorandum to the SDO Act, specifically allows 'police services and police
support services to assist and cooperate with law enforcement agencies,
intelligence or security agencies and government regulatory agencies, both in
Australia and overseas'.[86]
The explanatory memorandum continues:
This will ensure that the AFP can undertake activities that do
not have an immediate, apparent nexus to traditional “police services”. For
example, educational activities such as instructing the police force of another
country in the techniques of forensic investigation to build that country's
expertise in that area.[87]
5.106
The Committee considers that the AFP's activities in interrupting
internationally-sourced supplies of AOSD and their precursors and efforts in
providing education and support for neighbouring nations will contribute
significantly to the strategy of supply reduction.
Conclusion
5.107
The Committee considers that the SDO Act amendments to the Criminal
Code are clearly a significant step forward in creating a legislative
framework that recognises the particular issues surrounding the importation,
trafficking and possession of AOSD precursor chemicals. The adoption of the code
across state jurisdictions, coupled with uniform sentencing practices,
would assist in achieving greater consistency between states and the
Commonwealth in prosecuting precursor drug offences, and enhance the deterrent
effect of the new division 309 penalties.
5.108
Commonwealth agencies in collaboration with each other and state law
enforcement agencies have developed, and are continuing to develop, a range of
strategies and administrative arrangements that deal with AOSD importation,
manufacture and distribution. The Committee is confident that law enforcement
agencies currently have sound and evolving legislative and administrative frameworks
to assist them in their collaborative efforts against AOSD in Australia. The
Committee concurs with the following view expressed by the Australian Customs
Service:
AOSD will continue to pose a considerable challenge for
Australian law enforcement agencies in the coming years. It is only by
fostering expertise and capability within law enforcement and through law
enforcement agencies continuing to work closely together—including with their
regulatory, health and research partners—that the excellent outcomes that have
been achieved in recent years in reducing the supply of these drugs to the
Australian community will continue to be surpassed.[88]
5.109
The following chapter examines the specific law enforcement approaches
to reducing the supply of AOSD in Australia, and critiques the adequacy of that
response.
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