House of Representatives

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP

Schedule 9 - Drug importation

Item 1

Item 1repeals the definition of import in section 300.2 of the Criminal Code Act 1995 and substitutes it with a new definition. The new definition is as follows:

import , in relation to a substance, means import the substance into Australia and includes:

(a)
bring the substance into Australia, and
(b)
deal with the substance in connection with its importation.

Whereas the old definition provided:

import includes bring into Australia.

This amendment extends the definition of import to bring the current drug importation offences into line with earlier drug importation offences. The amendment reverses any inadvertent narrowing of the provisions that occurred when the previous drug offences in the Customs Act 1901 were replaced by new drug offences inserted into Division 300 of the Criminal Code Act 1995 through the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth).

Scope of the definition of 'import'

The New South Wales Criminal Court of Appeal decision in Campbell v R [2008] NSWCCA 214, compared the scope of the term 'import' used in the current Commonwealth drug importation offences with the scope of the term 'importation' that was used in the previous Commonwealth drug offences in the Customs Act 1901 .

The CCA held that the statutory context of the 307.11 offence, in contrast with earlier offence provisions 'suggests a precise rather than expansive, sense of the word 'imports''. The Court held:

'imports' under Division 307 of the Criminal Code Act 1995 , requires the controlled drugs and precursors to arrive in Australia from abroad and to be delivered to a point which would result in the goods remaining in Australia.

This point would generally be when the goods first arrive in Australia.

Effect of the new definition

The definition of import has been extended to include dealing with a substance in connection with its importation. As such, the new definition of import relates to a process that extends before and beyond the period of the goods being landed in Australia.

The effect of this amendment is that the Commonwealth drug importation offences will capture criminal activity related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs.

The terms 'deal with the substance in connection with its importation' paragraph (b) of the definition are intended to be broad their application. For example, paragraph (b) would capture the following dealings with the substance:

(a)
packaging the goods for importation into Australia
(b)
transporting the goods into Australia
(c)
recovering the imported goods after landing in Australia
(d)
making the imported goods available to another person
(e)
clearing the imported goods
(f)
transferring the imported goods into storage
(g)
unpacking the imported goods
(h)
arranging for payment of those involved in the importation process.

The examples above are not exhaustive.


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