House of Representatives

Explanatory Memorandum

Circulated By Authority of the Minister for Home Affairs, the Hon Brendan O'Connor MP

Schedule 1 - Amendments

Crimes Act 1914

Item 1 - amendment to subsection 85W(1)

This item omits the words 'prescribed narcotic substance within the meaning of the Customs Act 1901' in subsection 85W(1) and replaces it with a reference to 'a controlled drug, or a controlled plant, within the meaning of Part 9.1 of the Criminal Code'. The effect of the amendment will be to apply the offence in subsection 85W(1) to the controlled drugs and controlled plants listed in that Part.

The term 'prescribed narcotic substance' was defined in the Customs Act at the time section 85W was inserted as a sub-class of 'narcotic substances'. The definition of 'prescribed narcotic substance' was repealed by the Customs and Excise Legislation Amendment Act 1990 (the 1990 Act), which commenced on 21 December 1990. Due to an oversight, the effect of that repeal on the operation of section 85W was not taken into account and the reference in section 85W was not updated.

The amendment will address this oversight by giving effect, as closely as possible, to the original policy intention behind the offence in section 85W, when it was introduced into the Crimes Act in 1989 by the Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 . Applying the offence to the list of 'controlled drugs' and 'controlled plants' in the Criminal Code will ensure that the offence has similar coverage to the domestic drug offences in the Code, to which those lists apply, and to the original section 85W offence.

The section 85W offence will not apply to controlled precursors as these substances were not covered by the original offence.

This amendment to subsection 85W(1) will have prospective effect only, that is, it will only apply in relation to conduct engaged in on or after the day the amendment commences (that is, when it receives Royal Assent). Due to uncertainty surrounding the interpretation of section 85W(1) of the Crimes Act in its current form, it is appropriate not to apply the amendment retrospectively.

This item will also amend the heading of section 85W to replace the reference to 'narcotic substances' with a reference to 'controlled drugs or controlled plants', in accordance with the amendment to subsection 85W(1).

Item 2 - new subsections 85W(3 ), ( 3A) and (4 )

This item inserts new subsection 85W(3) to provide an exception to the offence of 'causing narcotic substances to be carried by post' for Australia Post and the RFDSA, their employees and other persons who perform services for or on their behalf. The item will also insert new subsection 85W(4), which defines certain terms relating to the proposed exception for the RFDSA Medical Chest Program.

This item also inserts new subsection 85W(3A) to provide an exception to the offence for persons or bodies, to be prescribed in Regulations, who facilitate the provision of vital medicines to remote Australian communities through Australia Post.

Subsection 85W(3 )

This subsection will provide that the offence in subsection 85W(1) does not apply to conduct engaged in by a person for the purposes of, and in accordance with, the 'Medical Chest Program' (as defined in proposed subsection 85W(4), and discussed below), where that person is acting in the course of their duties, powers and functions as an employee of Australia Post or an employee or contractor of the RFDSA.

Section 85E of the Act defines an employee , in relation to Australia Post, as a person who performs services for or on behalf of Australia Post, and an employee of such a person. The effect of the application of the section 85W definition will be that agents, contractors, employees and other officers of Australia Post (and their employees) involved in the Medical Chest program will be covered by the exception.

An RFDSA employee or contractor is defined in proposed new subsection 85W(4), and is explained below. The effect of this definition will be that agents, contractors, employees and other officers of the Royal Flying Doctor Service of Australia (and their agents, contractors, employees and other officers) involved in the Medical Chest program will be covered by the exception.

A defendant will bear an evidential burden in relation to subsection 85W(3). Section 13.3 of the Criminal Code Act 1995 provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). An evidential burden defence has been used because a defendant would be better placed to point to evidence that they engaged in conduct for the purposes of the Medical Chest Program and in the course of their duties as an employee or contractor of the relevant organisation.

Subsection 85W(3A )

This subsection will provide that the offence in subsection 85W(1) does not apply to conduct engaged in for the purposes outlined in paragraph 85W(3A)(a) by persons acting in the course of the duties, powers and functions referred to in paragraph 85W(3A)(b).

To be covered by the exception, the conduct must have been engaged in by a person for the purposes of, and in accordance with, a program prescribed by the Regulations that provides for the supply of packages of pharmaceutical products and medical supplies to remote locations.

The relevant conduct must also have been engaged in by a person in performing or exercising his or her duties, powers or functions in his or her capacity as:

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Australia Post, or an employee of Australia Post (defined in section 85E of the Act to mean a person providing services for or on behalf of Australia Post, or the employee of such a person)

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a body, or the holder of an office or position that is prescribed by the Regulations in relation to the prescribed program, or

•

an employee of, or person who performs services for on or behalf of, a government, body or other person that is prescribed in the Regulations.

The amendment would therefore enable Regulations to be made under the Crimes Act prescribing the programs to which, and the bodies or persons to whom, the exception in proposed subsection 85W(3A) applies. If a body or person is prescribed, employees or agents of that body or person would also be covered by the exception.

Note 1 to the provision is an aid to interpretation of proposed paragraph 85W(3A)(b) which indicates that, under subsection 33(3A) of the Acts Interpretation Act 1901 , the Regulations may prescribe a body, person or a class of bodies or persons, and may make different provisions with respect to different classes of bodies or persons.

Note 2 to the provision indicates that a defendant will bear an evidential burden in relation to subsection 85W(3A). Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). An evidential burden defence has been used because a defendant would be better placed to point to evidence of the matters set out in the exception in proposed subsection 85W(3A).

Subsection 85W(4 )

This subsection will provide definitions relevant to the exception in proposed new subsection 85W(3).

The Medical Chest Program is defined as the program administered and operated by or on behalf of the RFDSA for the supply of packages of pharmaceutical products and medical supplies to remote locations across Australia.

The RFDSA has been providing packages of pharmaceutical products and medical supplies (referred to as 'Medical Chests') as part of its Medical Chest Program since the 1930s. Medical Chests contain a range of non-pharmaceutical and pharmaceutical items, which enable emergency treatment to be given to people living and working in remote areas. The Chests are an important on-site tool to enable RFDSA medical practitioners to treat people via telemedicine for many conditions and to provide necessary treatment, including pain relief, for those requiring emergency evacuation.

The precise definition of 'Medical Chest Program' in the Bill will provide very clear parameters around the scope of the proposed exception and ensure that there are no unintended consequences for the operation of the offence in subsection 85W(1).

An RFDSA employee or contractor is defined to include a person who is one of the following:

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an employee of the RFDSA

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a person other than an employee (defined to mean an RFDSA contractor ) who performs services for or on behalf of the RFDSA, or

•

an employee or person who performs services for or on behalf of any of the persons in the second category, above.

The definition of Royal Flying Doctor Service of Australia includes an exhaustive list of the entities that comprise the RFDSA, and therefore fall within the scope of the proposed exception.

The RFDSA operates in a federated structure and the bodies that comprise it have their own Board and Management. These bodies are listed in paragraphs (a) to (g) of the definition of Royal Flying Doctor Service of Australia . Each body operates independently, both financially and operationally, and is either currently engaged in arranging for the provision of Medical Chests under the Medical Chest Program, or may do so in the future.

The definition will also apply to a body that assumes responsibility for performing the same (or substantially the same) functions that had been performed by a listed body that has stopped performing those functions, under the Program. This will avoid the need to revisit the provision where one of the bodies operating as part of the RFDSA changes the name under which it operates (for example, as part of a restructure of the service or a reallocation of functions).

Item 3 - Application

This item sets out the application of the amendment made by items 1 and 2 of Schedule 1. Sub-item (1) provides that the amendment to subsection 85W(1) applies in relation to conduct engaged in by a person on or after the day item 1 commences (that is, the day the Act receives Royal Assent). This is also discussed under item 1, above.

Sub-item (2) provides that new subsections 85W(3), (3A) and (4) apply, on or after the commencement of item 2 (that is, the day the Act receives Royal Assent), to conduct engaged in before, on or after the commencement of the Act.

The effect of this sub-item will be to enable those who would otherwise be covered by the offence to seek to rely on the exception in a prosecution initiated after commencement, including in prosecutions relating to conduct engaged in before commencement.

The effect of the retrospective application of proposed subsections 85W(3) and (4) in this Bill will be to extend the protection for accused persons in the particular circumstances covered by the exception to conduct engaged in before the issue was identified by Australia Post and the RFDSA.

The effect of the retrospective application of proposed subsection 85W(3A) will be to extend the protection for persons in the particular circumstances covered by the exception and the Regulations made under the Crimes Act regardless of when the conduct occurred.