Chapter 3 - Key issues
3.1
This chapter discusses the key issues and concerns
raised in submissions, and in particular:
-
the Bill's interaction with state and territory
legislation;
-
fault elements and burdens of proof in the
Bill's drug offence provisions;
-
other specific aspects of the drug offence
provisions;
-
policy aspects of the drug offence provisions; and
-
other schedules of the Bill.
3.2
Most submissions received by the committee were
focussed on the drug offence provisions in Part 1 of Schedule 1 of the Bill,
and this chapter therefore focuses on these provisions.[49]
3.3
In general, the majority of submissions expressed
support for the Bill.[50] However, the Families and Friends for
Drug Law Reform (FFDLR) expressed serious misgivings about the Bill,
and queried whether the Bill would meet some of
its objectives.[51] The Law Council of
Australia (the Law Council) also raised a number of concerns in relation to the
Bill. Some submissions also raised issues in
relation to the Bill's interaction with state
and/or territory legislation.[52] This
is discussed further below.
Interaction with state and territory legislation
3.4
A key objective of the Bill
is 'to achieve national consistency in this very significant area of criminal
law'.[53] A number of submissions were
supportive of this objective, and the Bill as a means
of achieving this objective.
3.5
For example, the Australian National Council on Drugs
(ANCD) recognised 'the inherent benefits of the criminal justice sector
implementing a consistent approach across jurisdictions to the treatment of
serious drug offences.'[54] The ANCD was
particularly supportive of the development of a nationally consistent list of
drugs and quantities to be linked to the model drug offences.[55]
3.6
Similarly, Dr Gregor
Urbas welcomed the Bill's
'move towards greater consistency and uniformity in Australian drug law'.[56] He hoped that the Bill
would provide a 'more settled and comprehensive model for the States and
Territories to follow in reforming their own criminal laws.'[57]
3.7
The Queensland Police Service stated that the Bill
mirrors some of the provisions of Queensland's
Drugs Misuse Act 1990. The Queensland
Police Service also observed that the Bill would
not affect the operations of the Drugs
Misuse Act 1990 (Qld) 'because the Bill
expressly states that the Commonwealth law is not intended to limit the State
law'.[58] The Queensland Police Service
further submitted that:
Similar offences are currently being formulated for inclusion in
the State legislation and the new penalties proposed in the Bill
are consistent with existing State legislation.[59]
3.8
Similarly, the South Australia Police noted that draft
South Australian legislation to amend its Controlled
Substances Act 1985 (SA) is currently being considered, and that the changes
proposed in the draft state legislation and the Bill
are 'largely consistent with each other.'[60]
3.9
In contrast, Mr Brian
McConnell of the FFDLR argued that the Bill
is 'a radical and heavy-handed extension of the Commonwealth's legislative
authority into the criminal law on drugs.'[61]
The FFDLR were particularly concerned that the Bill
would give the Commonwealth greater control over the area of drugs, and
potentially provides a means to 'trump' several aspects of the law of some
states and territories. In particular, they were concerned about the impact on:
-
provisions for 'expiation notices' for minor
cannabis offences (under legislation in South Australia, Western Australia and
the Australian Capital Territory); and
-
legislation for the provision of syringes and
medically supervised injecting rooms (under legislation in New South Wales and the
Australian Capital Territory).[62]
3.10
Mr Bill
Bush from the FFDLR further queried the need
for Commonwealth legislation in this area at all:
...why is the Commonwealth at this stage enacting general drug
legislation applying across the Commonwealth?...[D]rug legislation has been
here for years and years, and it has been regulated...on the basis that it has
been adequately covered by state legislation.[63]
3.11
The Western Australia Police (WA Police) also expressed
concerns about aspects of the Bill's
relationship with state legislation. The WA Police had no objection to the
transfer of existing offences from the Customs Act into the Criminal Code.
However, the WA Police believed that other offences proposed in the Bill
could 'result in complicated over-regulation in relation to controlled drugs
and plants.'[64] The WA Police noted
that certain provisions in proposed Divisions 302, 303 and 305 of the Bill create
offences that are already provided for under state legislation such as the Misuse of Drugs Act 1981 (WA) (MDA). For
example, in relation to the manufacturing offences in proposed Division 305 of
the Bill, the WA Police argued that:
...all matters related to manufacturing of illicit drugs should be
controlled by State legislation without the complication of Commonwealth
legislation.[65]
3.12
At the same time, the Western Australian (WA)
Government submitted that:
The Bill provides for the
concurrent operation of the Commonwealth law alongside existing State and
Territory law, and if enacted, its provisions would not interfere with the
operation of our State regime. The new offences do, however, apply to drug
dealing interstate and give more flexibility to Commonwealth law enforcement
agencies to encroach on matters that were previously for exclusive
consideration by the State.[66]
3.13
The WA Government concluded that the Bill 'conforms
largely in content with the Western Australian regime and any divergences are,
in any event, in line with the overarching purpose and appropriate intentions
of our own regime.'[67]
3.14
At the hearing, a representative of the
Attorney-General's Department (the Department) acknowledged that if the Bill
is passed:
For the first time there will be a comprehensive range of drug
offences at Commonwealth level and that will give Commonwealth agencies the
flexibility to deal with the full range of conduct that they come across in the
course of drug investigations.[68]
3.15
The representative continued:
The objective of the Bill is not
to override state and territory laws. They will be preserved by the operation
of section 300.4. The aim is to avoid a situation where Commonwealth agencies
need to prosecute under state law or refer a case to state authorities in order
to deal with the full range of conduct that comes to light in a Commonwealth
investigation.[69]
3.16
Similarly, the Commonwealth Director of Public Prosecutions
(DPP) submitted that:
...section 300.4 provides that Part 9.1 is not intended to exclude
or limit the concurrent operation of any law of a State or Territory. This has
the effect that some alleged conduct might be prosecuted pursuant to State or
Commonwealth law.[70]
3.17
The DPP believed that the new Commonwealth offences,
particularly in proposed Divisions 302-306, would have the advantage that:
...in many circumstances it will not be necessary for joint trials
of Commonwealth and State/Territory offences to be conducted, as Commonwealth
provisions may be relied on. This will avoid the complexity involved in running
trials involving both Commonwealth and State/Territory offences.[71]
3.18
The DPP further noted the EM's statement that 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 enforcement agencies.[72]
3.19
Similarly, the Attorney-General stated in his second
reading speech that the offences in the Bill:
...will operate alongside state and territory offences to give
more flexibility to law enforcement agencies. This approach will ensure there
are no gaps between federal and state laws that can be exploited by drug
cartels.[73]
Fault elements and burdens of proof
Presumptions and absolute liability
3.20
Some submissions expressed concerns about the use of
presumptions, and the application of absolute liability, to certain elements of
some offences in the Bill.
3.21
For example, the Law Council noted that there are a
range of presumptions attached to certain offences in the Bill,
including:
-
presumptions, where a trafficable quantity of
drugs is involved, of an intention or belief to sell the substance;[74] and
-
presumptions of intention to manufacture, or to
sell where another person has manufactured a substance, where that manufacture
was not authorised by law (where required) and/or a marketable quantity of the
substance is involved.[75]
3.22
The Law Council further noted that, for many offences,
absolute liability attaches to the quantity of controlled drugs or plant.[76] Mr
John North,
President of the Law Council, stated that the Law Council was opposed to 'this
scheme of shifting the burden of proof upon the defendant by introducing a raft
of presumptions and absolute liability.'[77]
The Law Council argued that the operation of these presumptions and absolute
liability favour the prosecution, and 'effectively shifts the burden from
proving guilt to establishing innocence.'[78]
The Law Council felt that this was 'unfair and unjust' and undermined the
presumption of innocence as set out in article 14(2) of the International
Covenant on Civil and Political Rights (ICCPR).[79] Mr
North further explained:
...the trouble is if you are the innocent person who is caught up
in the absolute liability or in the presumptions and find yourself incarcerated
for 20 years to life on a serious matter when you are not guilty. That is the
reason why, for murder and everything else, we say that when the crown, with
all of its resources, goes against the individual, the crown should prove
things beyond reasonable doubt...[80]
3.23
The FFDLR were also concerned about the application of
absolute liability, particularly in relation to elements of the import-export
offences in proposed Division 307 of the Bill,[81] and recommended that:
The evidentiary rules in favour of the prosecution in cls. 307.6
and 307.9 and in related provisions should be trimmed back better to reflect
the basic rule of the criminal law that the prosecution should prove its case
beyond a reasonable doubt. [82]
3.24
However, the DPP submitted that:
Based on our practical experience in prosecuting drug matters,
in our submission providing for absolute liability in relation to this single
element is justified and vital to the effective operation of these offences.
Were it not applied, a requirement to prove fault in relation to this element
would undermine the effectiveness of the offence and its deterrent effect.
Currently, the objective fact of the amount of drug involved determines the
available penalty, though subjective knowledge as to the amount may be relevant
to the sentence imposed.[83]
3.25
Similarly, the FFDLR also raised concerns about the presumptions
in the Bill where a trafficable quantity of
drugs is involved. In particular, the FFDLR were concerned about the
application of this presumption in proposed sections 302.5 and 303.7 in the
context of user-dealers and cannabis growers. For example, the FFDLR argued
that a single, average size cannabis plant could meet the threshold for a
trafficable quantity of 250g (as specified in proposed section 314.2). The
FFDLR argued that a home cultivator and consumer of cannabis could therefore be
caught by these provisions, and as a result:
...the onerous burden will be thrown onto the cultivator of an
average size plant to prove that he or she was not cultivating to sell.[84]
3.26
The FFDLR disagreed with the statement in the EM that
trafficable quantity thresholds, at least in relation to cannabis, are
'indicative of an intention to sell rather than personal use'.[85] The FFDLR therefore suggested that the
reversal of the burden of proof in proposed sections 302.5 and 303.7 should be
deleted because it 'unfairly targets those whom drug policy and law should be
designed to help.'[86]
3.27
However, the DPP expressed support for these
provisions, stating that:
...this presumption is appropriate when such a [trafficable]
quantity is involved. The presumption does not apply if the person proves on
the balance of probabilities that he or she had neither that intention nor
belief.[87]
3.28
The DPP further maintained that:
In our view stating that absolute liability applies to quantity,
together with the burden discussed above on the defendant to establish a lack
of commercial intention are essential components of these offences, as without
them, the prosecution would face formidable difficulty in securing convictions.
The effective operation of these proposed offences is heavily dependent on
these provisions.[88]
3.29
However, Mr John
North of the Law Council argued that:
People get caught on a daily basis coming into Australia with
suitcases of drugs or drugs hidden in machinery or anything else, and
convictions are regularly obtained...If someone is found bringing drugs in on
their person then the presumption is there...It is a very difficult presumption
to get over. In other ways they are getting convictions on a daily basis in the
courts under the existing law. There is not an outcry that lots of drug
smugglers or drug dealers are walking the streets having been freed.[89]
3.30
In the same vein, Mr
Bill Bush of
the FFDLR argued that:
The government's intention should be to police existing drug
laws and, if necessary, to put more resources into the policing of those laws.
But to remove those protections which...are protections that were established
through many centuries and of which we are the inheritors—to do it for this
particular end, or for any reason, is unsound.[90]
3.31
However, a representative of the Department pointed out
that the use of rebuttable presumptions is not new in drug law:
There is nothing new about reversing the onus of proof in
relation to various elements. It is in the Customs Act. It is in state laws...law
enforcement community agencies...find those essential to the proper prosecution
of the offences. The reason is quite simple. Because it is very difficult to
know what is going on in the mind of a person, you have to look at the
surrounding circumstances...If you find somebody with a warehouse full of drugs,
you can assume they intend to sell it.[91]
3.32
Indeed, South Australia Police submitted that a similar
presumption occurs in section 32 of the Controlled
Substances Act 1985 (SA), noting that it had found that:
...the inclusion of an evidentiary presumption in the State
legislation has proven to be of significant benefit to this agency when
prosecuting drug sale and supply matters.[92]
3.33
Similarly, the WA Government observed that its MDA also
imposed a presumption of commercial intent where a specified threshold quantity
is involved. It noted, however, that the Bill
imposes this presumption in a wider range of circumstances, such as the
preparation, transportation or concealment of a trafficable quantity.[93]
Import-export offences – fault
elements
3.34
Some submissions also commented on the fault elements
in proposed Division 307 of the Bill. For
example, Dr Gregor
Urbas welcomed proposed Division 307,
stating his belief that this will bring 'a greater degree of clarity and
predictability to this area of Commonwealth criminal law.'[94] Dr
Urbas explained that section 233B of the
Customs Act has been problematic, noting that:
...there has been considerable judicial uncertainty about the mens rea or...fault elements for the
importation and possession offences under this provision.[95]
3.35
Dr Urbas
observed that the provisions of the Bill are
consistent with the courts' analysis of section 233B of the Customs Act, but:
...given the altogether more explicit drafting of the new
provisions, in conformity with the methodology underlying the Criminal Code,
there should now be little doubt as to the requisite fault elements for the
offence and the appropriate directions to give to a jury.[96]
3.36
Dr Urbas
concluded:
...it is to be hoped that the days of successful appeals based on
judicial uncertainty over the requisite physical and fault elements for the
central offence of narcotics importation are in the past. While s233B and the
caselaw it has generated have been important in shaping Australian criminal
law, and of considerable interest to legal academics, the greater certainty
provided by relocating this and other Commonwealth drug offences under the Criminal Code Act 1995 (Cth) is to be
welcomed.[97]
3.37
In contrast, the Law Council expressed opposition to
the proposed standards in the Bill. The Law
Council pointed to the history of section 233B of the Customs Act, and
suggested that the proposed amendments would replace the higher threshold of
'guilty knowledge' with a lower standard of 'recklessness'.[98] It argued further that:
A central objective of criminal law of deterring criminal
behaviour is better achieved by punishing a person who knowingly and
intentionally commits an offence.[99]
3.38
The Law Council concluded that:
...it is unnecessary to lower the fault element to recklessness as
there is authority that in appropriate circumstances the requisite intention or
knowledge may be inferred where there is awareness of a “real chance” that
drugs were imported...the High Court [has] held that it is sufficient to infer
intention or knowledge if the accused realised there was a likelihood that the
substance he or she was importing or had in his or her possession was a
prohibited drug.[100]
3.39
However, the Department and the DPP disagreed with the
Law Council's interpretation of the existing provisions in the Customs Act, and
its conclusion that the Bill would lower the
standards of proof required.[101] A
representative of the DPP stated that the provisions:
...do not involve lowering the proof; the stated aim was to
replicate the current proof requirements of the Customs Act in the proposed
offences in division 307 of the bill.[102]
3.40
Similarly, a representative of the Department stated that
'the approach that has been taken is that there should be no diminution of
existing law dealing with drug offences at Commonwealth level or with the
penalty levels that apply to them.'[103]
Indeed, the DPP submitted that, in relation to the offences in proposed Division
307:
The proposed offences require that the prosecution must prove
that a defendant was reckless as to whether the substance involved was a border
controlled drug. This replicates the existing position in section 233B of the
Customs Act 1901 after it was amended by the Crimes Legislation Amendment (Telecommunications Offences and Other
Measures Act (No 2) 2004 which came into effect on 28 September 2004. In our submission this is
appropriate.[104]
Other specific aspects of the drugs offence provisions
3.41
A number of other specific aspects of the drugs offence
provisions were also raised in submissions and evidence. Some of these are
discussed below.
Interim regulations
3.42
The Law Council raised concerns with the use of interim
regulations and emergency determinations in proposed Division 301 to prescribe
controlled substances and threshold quantities for 12 months. As Mr
John North
stated:
The interim regulations concern us because they will have an
effective life of 12 months and they will allow authorities to proscribe
substances that have not yet been checked by experts. The Law Council are
concerned that interim regulations could take effect without any adequate
public consultation and there would be great uncertainty created by regulations
due to lack of public knowledge. There is an absence of full consideration by
experts. The possibility of not enacting the legislative amendments prior to
the lapse of the interim regulations is also of concern.[105]
3.43
The Law Council therefore recommended that:
...interim regulations should be introduced once full
consideration by experts has occurred. This will provide some certainty and
minimise changes in the legal status of substances and plants. For the same
reasons, the Law Council also recommends that legislative amendments be
introduced as soon as practicable following the introduction of interim
regulations.[106]
3.44
Mr North
elaborated on this in response to the committee's questioning:
...the people who are brought before the courts under these new
bills need...to understand the law. You cannot understand the law if you do not
even know that a substance is prohibited because it is there by way of an
interim regulation. [107]
3.45
Mr North
explained that the Law Council's objections also flowed from the fact that criminal
liability for 'severe' penalties flowed from these regulations.[108]
3.46
A representative of the Department explained that the
purpose behind the interim regulations and emergency determinations is:
...to make this legislation responsive, flexible and able to be
effective. There have been situations where drugs have been on the way to Australia
or a new drug has been manufactured. The provision for emergency determinations
is meant to cover those situations. It can take time to get regulations, even
interim regulations, enacted.[109]
3.47
In response to the Law Council's concerns as to what
might happen if such a determination or interim regulation lapsed, the departmental
representative stated:
There is an assumption that, if the drug is seen to be a serious
enough risk by the responsible minister to make its way into an emergency
determination, eventually it will make its way into the schedule. It is
possible theoretically that parliament might decide not to pass an act or an
amendment to the schedule, but by that stage parliament would have passed up
the opportunity to disallow the emergency determination and the interim
regulations. It is not as though it will come as an amendment before the
parliament for the first time.[110]
3.48
The representative also pointed out that there are
qualifications in the Bill on the ability to
make such interim regulations and emergency determinations:
The minister has to be satisfied that taking the drug 'would
create a substantial risk of death or serious harm' or 'would have a physical
or mental effect substantially similar to that caused by taking' another
illicit drug and there is a substantial risk that the drug will be 'taken
without appropriate medical supervision'. [111]
3.49
In response to the committee's questioning, the
Department submitted that, once a particular substance has been prescribed in
regulations for a period of 12 months, it cannot be re-prescribed in
regulations.[112]
3.50
The committee also notes that, under the Legislative Instruments Act 2003, the interim regulations will be subject to
parliamentary scrutiny and possible disallowance, and will also be publicly
available on the Internet.
Defences and alternative verdicts
3.51
The Law Council also commented on proposed Division
313, which sets out complete defences for conduct justified or excused under
state or territory law. The Law Council appreciated the need for these
defences, but stated its hope that:
...the prosecution would not pursue a matter to trial should its
investigation lead to a conclusion that the conduct was justified or excused
under a State or Territory law or where the circumstances, say a valid licence
was believed to be held though the relevant authority was found to make an
administrative error.[113]
3.52
However, the Law Council was opposed to the alternative
verdict provisions in proposed section 313.3, stating its belief that:
...alternative verdicts should only be permitted where the
prosecution has raised them at the outset of the trial at the very latest. This
is a basic safeguard to achieve procedural fairness.[114]
3.53
As Mr John
North of the Law Council explained:
...in the determination of any criminal charge against any person,
as a minimum they should be informed in detail of the charges against them and
have adequate time and facilities for the preparation of a defence. That does
not occur if you allow alternative verdicts, even at the time the judge is
summing up.[115]
3.54
In particular, the Law Council was concerned that these
provisions could breach the ICCPR:
According to the proposal, it would appear that an alternative
verdict can be raised by the judge or jury in the absence of an alternative
charge. This feature does not necessarily allow the defendant to be fully
informed of all the charges against him or her and to have adequate time to
prepare a defence, thereby breaching the ICCPR. Had all the charges been known,
the defendant would have been able to better prepare his or her defence.[116]
3.55
The Law Council also suggested that the alternative
verdict provisions could heighten the prospects of appeals on the basis of a
denial of procedural fairness.[117] The
Law Council therefore recommended that 'the use of alternative verdicts be
limited to circumstances where the alternative verdict is raised in the
indictment or at the outset of the trial and is truly an appropriate
alternative to the offence charged.'[118]
3.56
In contrast, the DPP expressed support for the
alternative verdict provisions in proposed Division 313, noting in particular
that:
Clause 313.3 is significant in relation to prosecutions in
providing flexibility as it allows for an alternative verdict where the trier
of fact is not satisfied that the defendant is guilty of the alleged offence
but is guilty of another offence against the Part and the maximum penalty for
the other offence is not greater. The trier of fact may find the defendant
guilty of that other offence, so long as the defendant has been accorded
procedural fairness in relation to that finding of guilt.[119]
3.57
A representative of the DPP also pointed out that there
are other alternative verdict provisions in the Criminal Code, for example, in
relation to money laundering offences.[120]
3.58
The committee also notes that proposed section 313.3
specifically states that the trier of fact may only find the defendant guilty
of another offence 'so long as the defendant has been accorded procedural
fairness in relation to that finding of guilt.'[121]
Import-export offences
3.59
As outlined in chapter 2, proposed Division 307 would
relocate the import-export offences from the Customs Act (particularly section
233B) into the Criminal Code. Both the DPP and the Australian Customs Service
(Customs) supported proposed Division 307 of the Bill.[122]
3.60
Customs noted
that the Bill 'addresses a number of important
issues for Customs in its role in border security and regulation as well as in
its investigation capability.'[123] In
particular, Customs accepted the removal of serious narcotic offences from the
Customs Act to the Criminal Code as proposed by the Bill.[124] Customs also noted that the Bill
maintains, and does not extend, appropriate law enforcement powers for the investigation
and prosecution of these offences.[125]
For example, Customs stated that the Bill would
maintain its existing powers to seize illicit drugs and precursors.[126]
3.61
However, the FFDLR expressed concern that, under proposed
Division 307, the possession of even small quantities of imported drugs would
be an offence, with quite severe penalties. The FFDLR suggested that possession
of imported drugs in small quantities typical of users and user-dealers should
be a separate offence (if at all), with much lower penalties.[127] As discussed elsewhere in this
report, the FFDLR and the Law Council both raised concerns with the presumption
and the application of absolute liability in this proposed division of the Bill.
Calculation of weight
3.62
The WA Police was concerned that proposed Division 312
of the Bill could potentially cause confusion in relation to the calculation of
the weight of drugs involved in the proposed offences. The WA Police submitted
that:
Under Western Australia
legislation, the total weight of the substance (drug + admixture) is taken to
be the relevant weight of the drug for the purposes of prosecution. In
contrast, s312.1 of the Bill sets out a complicated method of ascertaining
quantity based on purity or the quantity of the 'pure' form of the drug...The
MDA is more practical to apply as illicit drugs are rarely found in pure form,
but are most commonly found as a substance comprised of the drug 'cut' with an
admixture. The purity or percentage (ie strength) of the drug is then taken
into consideration at sentencing.[128]
3.63
However, the committee notes that the EM states that:
The quantities of controlled drugs and border controlled drugs
are able to be specified as either a pure or dilute quantity, or both...Dilute
quantities are not listed in proposed Division 314, however it is intended that
they will be added in future.[129]
3.64
The FFDLR also raised concerns about the calculation of
weights in relation to cannabis, pointing out their understanding that the dry
weight is only about 30% of the fresh weight.[130]
The FFDLR recommended that:
Given the vast discrepancy between dry and fresh weights of
cannabis and the prospect that if the prosecution used fresh weight genuine
consumer growers would routinely commit crimes carrying enormous penalties, the
weights specified for cannabis in cls. 314.1 and 314.2 should be specified to
be dry weight or dry weight equivalent.[131]
3.65
However a representative of the Department stated that
'our view of how this provision should be interpreted is that it is the weight
of the plant at the time it is seized.'[132]
The representative pointed out that:
...we do not think any other test is workable. What are you going
to do—take a plant and dry it, so it has to go through some chemical process?
What if there is a paddock full of plants? It is hard enough to count them,
harder to weigh them, virtually impossible to dry them all in some scientific
way and weigh the dry product.[133]
Aggregation
3.66
The DPP welcomed the provision in proposed Division 311
to enable charges to be brought based on combined amounts of drugs, plants or
precursors.[134] The DPP noted the EM's
explanation that:
The primary object of the [aggregation] provision[s] is to
expose offenders who engage in frequent small dealings to the higher penalties
usually reserved for those who deal in bulk quantities.[135]
3.67
However, the DPP commented that:
If enacted, whether or not these provisions were utilised would
depend on the circumstances involved. For example, they would not be
appropriate where individual dealings involved substantial amounts and the
laying of separate charges would be necessary to reflect the criminality
involved.[136]
3.68
The WA Government also appeared to support these
provisions, submitting that:
Significantly, the Bill closes
the legal loopholes that are exploited by drug traffickers who fragment their
commercial dealings to avoid the full consequences of the law...The Western
Australian regime does not provide for the accumulation of transactions in this
way.[137]
3.69
In contrast, the Law Council expressed concern about aspects
of proposed section 311.2, which allows parcels of controlled drugs to be
combined where the prosecution can show that the defendant was involved in an
organised commercial activity. As the EM notes, there is no restriction on the
amount of time over which the organised commercial activity takes place in
order to use this type of aggregation.[138]
The Law Council suggested that:
...section 311.2(2) which permits the prosecution to not provide
exact dates of alleged occasions of trafficking and exact quantities trafficked
on each occasion should be removed. The Law Council considers that details
pertaining to each alleged act should be specified and supporting evidence in
relation to each act provided by the prosecution.[139]
3.70
The FFDLR recognised that there is a valid role for
aggregation at higher levels in the drug distribution pyramid. However, the
FFDLR pointed out the MCCOC report admitted that 'aggregation of small
transactions has the potential to amplify the liability of habitual users who
engage in frequent small sales to sustain a habit.'[140] The FFDLR therefore suggested that
aggregation should not be permitted for an offence under proposed section 302.4
of trafficking in less than a marketable quantity of controlled drugs.[141]
3.71
However, the EM states that:
Evidence that a large quantity was involved in a particular
transaction is often a good indication that the offender was a major dealer.
However, seizure of a small quantity is less often a good indication of minor
dealing. This is because the particular
person may have taken care to avoid large transactions on any particular
occasion (to try to avoid the higher penalties), or an offender who is a major
supplier may have simply been caught with a small quantity because stocks were
low at that time.[142]
3.72
The committee also notes the MCCOC report's conclusion
that:
...there is a limit to the precision with which the effects of
criminal prohibitions can be limited to their intended targets. Though
culpability for dealing in commercial quantities may be less when the offender
is an habitual users, this is a consideration which must be addressed in
sentencing rather than in the definition of the aggravated forms of
trafficking.[143]
Offences involving children
3.73
Some submissions were particularly supportive of the Bill's
provisions relating to the endangerment of children in the trafficking and
manufacture of drugs.[144] For example,
the WA Government submitted that:
These measures recognise the harm that may be caused to innocent
bystanders to clandestine laboratories and provides an appropriate deterrent to
such acts...the inclusion of specific provisions in drug legislation renders
offenders placing children in danger in these circumstances more amenable to
justice.[145]
3.74
The WA Police noted that, while there are currently no
provisions in drugs legislation in its state which specifically relate to
children, it is:
...developing a proposal that will deal with drug offences
relating to the endangerment of children. As part of this exercise Western
Australia Police will take into consideration the draft provision of the Commonwealth
Bill in framing any equivalent State legislation.[146]
3.75
The FFDLR noted the Attorney-General's comments that
the Bill 'also provides important protection to children', particularly through the offences for
endangering children during the drug manufacturing process, or using children
to traffic drugs.[147] However, the FFDLR
suggested that consideration should be given to the harm caused to children and
young people by the Bill as a result of
'excessive reliance on criminal prohibitions against drug use.'[148] The FFDLR argued that the Bill,
if enacted, would 'expose hundreds of thousands of young people across the
country to a new set of Commonwealth crimes.'[149]
They pointed to research indicating that a high number of children had used
illicit drugs, or were at risk of trying out illicit drugs, and argued that
under the Bill, 'a big proportion of Australian children will be serious drug
offenders.'[150] They also noted that
children are excluded from liability for the offences under proposed Division
309 (offences for people using children to traffic drugs), but not the other
offences in the rest of the Bill.[151] As Mr
Brian McConnell
observed:
Parents do not want their children's life chances destroyed by a
conviction for a serious drug offence...children should not be disproportionately
punished for the youthful indiscretion of dabbling in drugs.[152]
Precursor offences
3.76
In relation to the proposed precursor offences in proposed
Division 306 of the Bill, the WA Government
noted that similar measures were recently inserted into the WA MDA.[153] However, the WA Police observed the
offences in the Bill only relate to:
...prescribed controlled precursors (essential chemical
ingredients such as pseudoephedrine). However, the MDA is broader and more
practical in that it also includes substances and chemicals that facilitate the manufacturing process,
such as iodine and hypophosphorous acid.[154]
Penalties
3.77
The WA Government observed that there are significantly
larger penalties for the possession of equipment for manufacture than in the WA
legislation.[155] Otherwise, the WA
Government submitted that the penalties proposed by the Bill:
...are not identical with penalties in the WA Act, however they do
conform generally in the sense of the ratio of culpability to punishment. The
new increased penalties in the Bill that apply to the manufacture of commercial
quantities of controlled drugs represent a general deterrent in the face of
increasing manufacture and trade in 'designer drugs'. Those measures appear
appropriate in that context.[156]
3.78
On other hand, the FFDLR argued that the penalties in
the Bill are disproportionate and 'draconian'.[157] These concerns are discussed further
in the section on 'impact of the Bill' later in
this chapter.
Consultation with state and
territory governments
3.79
The Queensland Police Service submitted that it had not
been consulted about the Bill.[158] In response to the committee's
questioning on the level of consultation in relation to the Bill,
the Department noted that neither the draft Bill,
nor an exposure draft of the Bill, had been
provided to state and territory governments prior to its introduction to Parliament.[159] However, the Department did note that
many provisions of the Bill were subject to
extensive consultation as part of the MCCOC Model Criminal Code development
process.[160] In particular, the
Department submitted that:
In 2002, Commonwealth, State and Territory jurisdictions
resolved at the Leaders Summit on Terrorism and Multi-jurisdictional Crime to
implement the model offences recommended in the MCCOC Report.[161]
3.80
The Department also noted that the Working Party
established by the Ministerial Council on Drug Strategy[162] includes representatives of state
and territory governments and police. The Department further submitted that
departmental representatives attended a meeting of the Working Party in July
2005 and gave a presentation on the Bill.[163]
3.81
Further, the committee notes that several state
agencies made submissions to this inquiry, and the overwhelming majority of
these appeared to be supportive of the Bill.[164]
Policy aspects
of the Bill
3.82
Concerns were also raised in submissions and evidence
in relation to policy aspects of the Bill, particularly
the impact of the Bill on smaller scale drug
crime; and on the supply of illicit drugs. These are discussed below.
Impact of the
Bill
3.83
The FFDLR raised a number of concerns about the impact
of the Bill on smaller scale drug crime. In
particular, the FFDLR argued that the Bill:
...is far from confined to serious drug
offences by large scale suppliers. It is a radical extension of Commonwealth legislative
authority into the criminal law of drugs with potential application to every
drug user in the country. Moreover, it does this in a heavy handed way. Actions
that in plain language would not be regarded as 'serious crimes' will be
labelled as serious drug offences to which draconian penalties will apply.[165]
3.84
In contrast, Drug Free Australia believed that the
characterisation of offences as 'serious offences' was appropriate given the
serious consequences associated with drug use, including adverse individual and
public health consequences, and other wider considerations such as crime and
public amenity.[166] Drug Free
Australia submitted that:
...any manufacture, importation, interference with, trafficking,
possession, or use of goods generally known as ‘illicit drugs’ is a most
serious matter of a criminal nature and should therefore be dealt with in an
appropriately serious manner before the courts.[167]
3.85
However, while the FFDLR appeared to support the Bill where
it targets commercially motivated drug crime further up the supply chain, they were
particularly concerned that the Bill might transform user-dealers into 'very
serious criminals'.[168] Mr
Brian McConnell
explained:
The attention given to the commercial manufacture of controlled
drugs is appropriate, but that is the top end of the market. Families and
Friends for Drug Law Reform are more concerned about the bottom end of the
market. We have grave concerns that the bill characterises as serious drug
offences a host of activities among users at the bottom of the drug
distribution pyramid. In plain language, these may be drug offences but they
are not serious drug offences. They are offences involving possession and
dealing in small quantities. A number of these are not even recommended in the
report of the Model Criminal Code Officers Committee.[169]
3.86
In particular, the FFDLR were concerned that dealing in
small quantities of drugs will be caught by the provisions of the Bill.
Mr McConnell
pointed out that:
By way of example, under clause 302.4 a young person who has
grown just one mature cannabis plant weighing at least 250 grams could be
expected to be found guilty of trafficking and could be liable to be imprisoned
for 10 years or fined $220,000 or to suffer both penalties. Given the quantity,
the onus of proof would fall on him to prove that he did not intend to sell any
of it. As another example, a young woman who bought ecstasy tablets for a night
out with a few friends would face similarly draconian consequences.[170]
3.87
The FFDLR also raised objections to the possession
offence in clause 308.1 of the Bill, arguing
that it:
...is a new catch-all provision for the mere possession of even
small quantities of drugs. It can be aimed only at drug users. They will end up
with a conviction under “serious drug offences” legislation that can blight
their whole life and be liable to two years in prison, a fine of $44,000 or
both.[171]
3.88
The FFDLR pointed to recent research indicating that
2,510,100 Australians can be expected to use drugs in any 12 month period. The
FFDLR submitted that this offence would therefore make 'serious' criminals out
of those Australians – or every seventh member of the community.[172] The FFDLR therefore made a number of
recommendations for amendments to the Bill,
which were:
...intended to restore some balance in this bill so that its
application does not cause more harm to the young people we should protect and
does not undermine some of the basic tenets that form the foundation of our
criminal justice system.[173]
3.89
These recommendations included the removal of a range of
offences relating to 'mere possession' or dealing in small quantities of drugs;
and changes to the burden of proof in relation to certain offences.[174] Some of the FFDLR's suggestions are
considered in the discussion of specific offences earlier in this chapter.
3.90
However, Drug Free Australia submitted its belief that:
It is wrong to argue that something so serious is “mere
possession” of small quantities of illicit drugs, or even the use of small
quantities of illicit drugs for that matter, play any less of a part in the
seriousness of the overall illicit drug problem. Without the user the entire
supply chain breaks down as having no purpose.[175]
3.91
In this context, the committee also notes that MCCOC
considered the exclusion of dependent users from the proposed offences, and
concluded that this would be 'unwise' and politically divisive. The MCCOC report
concluded:
Political acceptability aside, the consequences in terms of harm
minimisation, are incalculable. The restrictions which would be necessary to
avoid creating loopholes for abuse might deprive the defence of all practical
effect. To the extent to which lenience is justifiable, when trafficking by
dependent users is in issue, discriminating exercise of the prosecutorial and
sentencing discretions offers a more flexible method of mitigating the harms
associated with law enforcement.[176]
3.92
Mr Bill
Bush of the FFDLR responded to the
suggestion that prosecutorial and sentencing discretions are the appropriate
manner of dealing with those at the lower end of the drug market as follows:
Why don’t we just have, under the penal code, one sentencing
provision: life imprisonment and a $10 million fine? The fact is that in the
media the seriousness of the proscribed offence is used as an argument in
relation to the expectations of the community of the penalty that should be
imposed. It is an indication to the police in their work as to the seriousness
of the offence for which they should be deploying their resources. It means
something. It is not just an irrelevant thing.[177]
3.93
Mr Bush
continued:
...the effect of a particular level of penalty affects the
response of those who administer the law and it affects the response of the
courts. They have to get their cue as to what the parliament regards as the
level of penalty to be applied. That is done by the reference to the penalty
that is imposed in the act...it sends a message.[178]
3.94
In response to the FFDLR's concerns as to the impact of
the Bill, a representative of the Department
stated that 'possession of a plant for personal use is not caught by these
provisions.'[179] The representative
further pointed out that:
There is nothing in this [A]ct which is going to criminalise
something that is not already criminal at state level. This is the concept of
consistency with state law that I talked about...There can be differences with
penalties, expiation notices and diversion schemes. If you go to specific state
laws you may very well find that in some states a person who is prosecuted
under one of these provisions would be dealt with in a different way. And that
is something we decry. Basically what we want to see at the Commonwealth level
is consistent drug laws...We see this as very much a trigger or a basis for the
Commonwealth to now go to the states, which have not all enacted MCCOC model
laws, and say, 'Please do so. Let us have some consistent laws.'[180]
Reducing the supply of illicit
drugs
3.95
The Attorney-General stated in his second reading
speech that:
This bill demonstrates the government's commitment to reduce the
supply of illicit drugs by strengthening anti-drug laws.[181]
3.96
However, the FFDLR disputed whether the Bill
would actually achieve this aim.[182]
In particular, they argued that there are 'persuasive reasons to believe that
repressive measures at the retail level do not lead to any significant reduction
in availability of drugs'.[183] They
pointed to relevant research, and other reasons including that:
-
the level of illicit drug use in various
countries bears no direct relationship to the repressiveness of measures
against that use; and
-
in Australia a reduction in cannabis usage has
accompanied the relaxation of cannabis law enforcement.[184]
3.97
The FFDLR also queried whether the Bill
would reduce the supply of illicit drugs by disrupting distribution networks at
the border and within Australia.[185] By way of example, the FFDLR argued
that the recent 'heroin drought' in Australia
was not brought about by law enforcement, but by a number of other
circumstances.[186]
3.98
In contrast, Drug Free Australia submitted that:
The strong nexus between supply and use of illicit drugs should
never be overlooked, nor can it be discounted that the primary aim of supply is
aimed at inducting persons to, and prolonging use.[187]
3.99
Further, the DPP submitted that:
Intercepting drugs before they enter the community and are
distributed has always been regarded as vital...substantial and deterrent
sentences are required in order to protect the community and the seriousness of
this offending is reflected in the courts imposing very substantial prison
sentences, including the most severe penalty, life imprisonment in the most
grave cases.[188]
Other schedules in the Bill
Schedule 4 – Australian Federal Police
Act 1979
3.100
Some submissions commented on the amendments to the AFP
Act in Schedule 4 of the Bill, which would clarify
that the functions of the AFP extend to providing assistance to, and
cooperating with, Australian and foreign law enforcement agencies, intelligence
or security agencies and government regulatory agencies.
3.101
In particular, the WA Government observed that the
provisions to clarify the scope of the AFP's functions 'may provide an avenue
for increased involvement by the AFP in matters previously handled by State law
enforcement agencies.'[189]
3.102
The Law Council supported these amendments in
principle, but believed that:
...the AFP should not assist countries in circumstances in which
the assistance could potentially lead to a person being sentenced to treatment
that is harsh, cruel and inhumane by international standards. For instance, in
assisting Indonesian authorities in relation to drug traffickers, there is a
risk that a person who is convicted of a drug offence could be sentenced to
death.[190]
3.103
The Law Council therefore suggested that the AFP should
only provide such assistance where there is a memorandum of understanding (MOU)
between Australia
and the foreign jurisdiction. The Law Council suggested that such an MOU should
state that cruel, harsh or inhumane treatment or punishment, such as the death
penalty, would not be applied where the AFP assisted in the process of
conviction.[191]
3.104
Mr John
North of the Law Council noted the recent
case of the 'Bali 9' as an example of the problems that
may arise in this situation. The 'Bali 9' refers to nine Australians arrested
in Bali, Indonesia, earlier this year, who were allegedly involved in smuggling
heroin.[192] Mr North
commented:
The Bali nine is an unfortunate situation
because, as we understand it, the AFP cooperation with the Indonesians occurred
at the police to police level, not at the government level. I understand that
had our Attorney-General and others been involved the Bali
nine would not be open to charges that carry the death penalty. The Australian
government at this moment understands that the death penalty should not be
there. I believe that the cooperation was at the police to police level, and we
are saying that needs to be looked at.[193]
3.105
Mr North
further explained:
Our information is that the AFP acted according to internal
policy and not with any MOU or any other government interference in place,
because we wonder whether the Australian government would have wanted them
arrested there and be subject to the death penalty. I have spoken personally to
the Attorney-General, and the Australian government, as I understand it,
remains very much opposed to placing Australians in jeopardy of the death
penalty.[194]
3.106
In response to the committee's questioning on this
issue, the AFP noted that it may sometimes have an MOU with a particular
country. However, a representative of the AFP stated that:
The Australian Federal Police have an internal guideline which
replicates government policy in relation to how we go about investigating
offences that may attract the death penalty. It clearly sets out what
information we will pass over to foreign law enforcement agencies, what we will
not and at what stages we will do that.[195]
3.107
However, the AFP noted that the guidelines distinguish
between situations where no charges have been laid and situations where charges
have been laid under the law of that foreign country.[196] Once a person has been charged with
an offence that carries the death penalty, advice must be provided to the
Attorney-General and the Minister for Justice and Customs. However, up until that
point, the guidelines state that the AFP may provide such assistance as is
requested, irrespective of whether the investigation may later result in
charges being laid which may attract the death penalty.[197]
3.108
The committee understands that, in cases where the
Australian Government receives a formal request for assistance from a foreign
government to investigate an offence which carries the death penalty, the Mutual Assistance in Criminal Matters Act
1987 provides the Attorney-General or the Minister for Justice and Customs
with a discretion to refuse to provide assistance at the point before charges
have been laid. Where a person has been charged with, or convicted of, an
offence which carries the death penalty, the responsible Minister must
refuse to provide the assistance unless there are special circumstances.[198] Assistance not involving coercive
powers and given directly by police or other law enforcement agencies is not
regulated by the Mutual Assistance in
Criminal Matters Act 1987, but by administrative direction. That is, in the
AFP's case, by the above-mentioned guidelines.[199]
Schedule 8 – bail conditions
3.109
Customs expressed support for a technical amendment to section
219ZJC of the Customs Act in Schedule 8 of the Bill.
Section 219ZJC currently provides a power for Customs to detain a person at the
border where they are subject to a warrant or certain bail conditions. Customs
explained in its submission that:
Customs is concerned that as there are a variety of ways in
which bail conditions may be expressed, the existing effect of s.219ZJC could
be to be unable to provide a basis for detention unless there is a specific
reference to the bailee not leaving Australia.
This might be the case even if following what was required by the bail
conditions could have the effect of preventing the person departing Australia.[200]
3.110
Customs explained that this amendment would ensure that
Customs would have the power to detain a person at the Australian border where
that person is subject to bail conditions which effectively prevent them from
leaving Australia,
however that bail condition is expressed.[201]
A representative of Customs further explained in response to the committee's
questioning on this issue that:
...we already have a clause that enables a person on bail to be
detained at the port of entry. All this does is to clarify the situation where
we have a range of different ways in which the condition might be expressed. It
ensures that, however it is expressed, we can still detain someone.[202]
3.111
The representative continued:
It is simply that bail conditions were expressed in different
ways, and you could take the view that at times the effect of the wording was
to prevent a person leaving the country. But on a strict reading, it did not
actually say that. What we were after was an amendment that ensured that,
however the condition was expressed, we could still take the action.[203]
3.112
The committee notes there are conditions on the
detention powers of Customs officers under section 219ZJC, including that the
person must be delivered, as soon as practicable, into the custody of a police
officer to be dealt with according to law.[204]
Schedule 2 – children in armed
conflict
3.113
The Human Rights and Equal Opportunity Commission
(HREOC) welcomed the proposed amendments in Schedule 2 of the Bill
to implement Australia's
obligations under the Optional Protocol. HREOC noted that the Optional Protocol
was the subject of inquiry and report by the Joint Standing Committee on
Treaties.[205] In particular, HREOC
noted that Defence Instruction (General) PERS 33-4 sets out, among other
matters, the minimum age of voluntary recruits into the Australian Defence
Force. HREOC supported the recommendation of the Joint Standing Committee on
Treaties that this Defence Instruction should be made readily accessible to the
public, for example, by making it available on the Department of Defence
website.[206] However, the committee
considers that this issue is outside the scope of this inquiry.
The committee's view
3.114
The committee acknowledges that the overwhelming
majority of the submissions received during this inquiry supported the Bill.
3.115
The committee notes that issues were raised during the
inquiry in relation to the interaction of the Bill
with state and territory legislation. However, the committee notes that the Bill
provides for the concurrent operation of state and territory legislation, and
that the state government agencies that provided evidence to the committee
generally supported the Bill. The committee
further acknowledges the evidence that the intention is that the Bill
will give law enforcement agencies greater flexibility, and that drug offences
will continue to be investigated in accordance with the established division of
responsibility between federal, state and territory enforcement agencies. In
particular, the committee supports the need for greater national consistency in
Australian drug law.
3.116
In relation to the concerns raised about the use of
presumptions and absolute liability in the Bill,
the committee considers that these provisions have been adequately justified in
the Explanatory Memorandum and by departmental representatives. In particular,
the committee received evidence that similar presumptions are used in many
state laws, and that the defence of mistake is available where absolute
liability applies. The committee further notes that the use of absolute
liability was supported by MCCOC, and endorsed by the Standing Committee of
Attorneys-General. However, the committee suggests that the Working Party
established by the Ministerial Council on Drug Strategy may wish to examine
whether the thresholds for 'trafficable quantities' of controlled drugs and
plants are set at an appropriate level.
3.117
The committee also received evidence of concerns about
the potential impact of the Bill, particularly
on smaller scale drug crime. However, the committee notes that many of the
offences in the Bill already exist at the state
and territory level. The committee also acknowledges the MCCOC report's
conclusions that this issue can best be addressed in prosecution and/or
sentencing processes.
3.118
As to the other specific issues raised in relation to
the drug offence provisions in the Bill, the
committee considers that the Explanatory Memorandum, the Department and the DPP
have adequately responded to these concerns. The committee therefore considers
that these provisions of the Bill are appropriate.
3.119
In relation to the other schedules of the Bill,
the committee acknowledges the evidence of Customs in relation to the need to
clarify the detention power in the Customs Act relating to bail conditions (in Schedule
8 of the Bill). The committee also notes that there
are conditions in the Customs Act on the exercise of this power.
3.120
However, in relation to Schedule 4 of the Bill,
the committee acknowledges concerns that the AFP is providing assistance in
matters in foreign countries which may result in Australians facing the death
penalty. The committee particularly notes the Law Council's suggestion that the
AFP should only provide such assistance where there is an MOU between Australia
and the foreign jurisdiction which states that cruel, harsh or inhumane
treatment or punishment such as the death penalty would not be applied where
the AFP assisted in the process of conviction. The committee is also concerned that
AFP internal guidelines do not appear to adequately deal with this situation.
The committee therefore recommends that the Australian Government, in
conjunction with the AFP and other stakeholders, review its policy and
procedures on this issue. In particular, the Australian Government should ensure
appropriate ministerial supervision of assistance provided by Australian law
enforcement agencies, where that assistance may expose Australians overseas to
cruel, harsh or inhumane treatment or punishment, including the death penalty.
Recommendation 1
3.121 The committee recommends that the Australian Government,
in conjunction with the Australian Federal Police and other stakeholders, review
its policy and procedures on international police to police assistance. In
particular, the Australian Government should ensure appropriate ministerial
supervision of assistance provided to overseas jurisdictions by Australian law
enforcement agencies, where that assistance may expose Australians overseas to
cruel, harsh or inhumane treatment or punishment, including the death penalty.
Recommendation
2
3.122 Subject to the preceding recommendation, the committee
recommends that the Senate pass the Bill.
Senator Marise Payne
Chair
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