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Until recently, federal drug offences were contained in the Customs Act 1901 (Cth) as drug offences were mainly concerned with the export and import of drugs. The Customs Act is still relevant, as the Act sets out many search and detention powers. With the passage of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) (SDOA) the law concerning federal drug offences was transferred to the Criminal Code Act 1995 (Cth)  Chapter 9, Part 9.1. The amendments of the SDOA have brought Australian law into line with our international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

This chapter was written with reference to the Fitzroy Law Handbook Online.

Presumptions

Where a Commonwealth law requires the import or export to be authorised but it isn't, the person is taken to have imported or exported the substance with the intention of using some or all of the substance to manufacture a controlled drug and a belief that another intended to manufacture a controlled drug. These presumptions do not apply if the person proves on the balance of probabilities that he or she did not have that intention or belief.

To establish a precursor importation offence, the accused must have intended to use the precursor to manufacture a controlled drug and/or believed that another person intended to use the precursor to manufacture a controlled drug.

Offences

Federal drug offences include:

The new offences fall into two categories. The first category relates to the import and export of border controlled drugs and precursors (chemicals used to manufacture drugs) and is dealt with in Division 307 of the Criminal Code. The second category relates to domestic activity involving controlled drugs and precursors, such as trafficking and manufacture. These are dealt with in Division 308 of the Criminal Code. The offences in each category are tiered, based on the quantity of serious drug involved, with greater penalties being available where a ‘marketable’ or ‘commercial’ quantity is involved.

Attempting to commit any of these crimes, aiding and abetting in their commission, and conspiring to commit a crime are all offences in themselves (s11). Conviction for any of these can result in imprisonment or heavy fines.

Import-Export of Border Controlled Drugs

Division 307 of the Criminal Code provides for offences relating to the import and export of ‘border controlled drugs’. Section 300.2 defines ‘import’ to include ‘bring into Australia.’ Import into Australia occurs when the goods are landed or brought within the limits of a port with the intention of landing them. Goods are not imported simply by bringing them within the three-mile limit of Australian territorial waters.

Section 314.4 lists border controlled drugs and plants and sets out ‘marketable’ and ‘commercial’ quantities relevant to the various offences. The following table lists common border controlled drugs and sets out quantities.

Sections 307.1 to 307.4 of the Criminal Code relate to importing and exporting border controlled drugs and plants. The applicable penalty where a commercial quantity is involved is imprisonment for life or 7,500 penalty units or both. Where a marketable quantity is involved the applicable penalty is 25 years imprisonment or 5,000 penalty units, or both. There is a new tier of offence applying to any quantity with a penalty of 10 years or 2,000 penalty units, or both, provided there is a commercial purpose. In addition, there is an offence that applies to any amount with a penalty of two years or 400 penalty units, or both.

Import-Export of Border Controlled Precursors

Precursors are the ingredients for making illegal drugs, such as pseudo-ephedrine and ephedrime. 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 lists border controlled precursors and sets out quantities relevant to the various offences. Fourteen precursor chemicals are currently listed, with further additions likely.

The applicable penalty where a commercial quantity is involved is 25 years imprisonment or 5,000 penalty units, or both. Where a marketable quantity is involved the applicable penalty is 15 years or 3,000 penalty units, or both. There is a further offence where any quantity is involved and this carries a penalty of seven years or 1,400 penalty units, or both. The quantities for a commercial and a marketable quantity have been based on the amount of precursor necessary to manufacture the corresponding amount of border controlled drug.

A person commits an offence where the person imports or exports a border controlled precursor and either or both of the following apply:

  • the person intends to use any of the substance to manufacture a controlled drug; or
  • the person believes that another person intends to use any of the substance to manufacture a controlled drug.

Trafficking controlled drugs (Division 302)

Under the Criminal Code, a person traffics in a substance 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.

You can traffic in traffickable, marketable and commercial quantities. But traffickable quantities begin at 2.0 grams.

Cultivation of controlled plants

Cultivation of controlled plants requires a person to:

  • plant a seed, seedling or cutting;
  • transplant a plant;
  • nurture, tend or grow a plant;
  • guard or conceal a plant (including against interference or discovery by humans or natural predators);
  • harvest a plant, pick any part of a plant or separate any resin or other substance from a plant.

Cannabis is the only controlled plant under the Criminal Code. A traffickable quantity begins at 10 plants or 250 grams. The Act makes a distinction between cultivation of commercial, marketable and traffickable quantities.

Drug offences involving or harming children

There are offences in the Criminal Code directed at adults who involve children under 18 years of age in the drug trade. As well as a range of domestic offences, these include offences relating to procuring a child to pre-traffic in precursors, or import controlled drugs or border controlled precursors. Pre-trafficking includes selling the substance believing that the person to whom it is sold, or another person, intends to use any of the substance to manufacture a controlled drug (s306.1).

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