House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

Schedule 1 - Serious drugs

GENERAL OUTLINE

The purpose of Schedule 1 is to strengthen the Commonwealth's serious drug offences framework.

Illicit drugs have a terrible impact on the Australian community and cause a wide range of social, economic and personal harms. The amendments in this Schedule ensure that Commonwealth laws are up to date and allow for flexible, quick responses to new and emerging drug threats.

This Schedule will transfer the lists of substances to which the Commonwealth's serious drug offences apply from the Criminal Code to the Criminal Code Regulations 2002 (Cth), establish conditions and criteria for listing controlled and border controlled substances in regulations, improve emergency determination mechanisms by extending the listing period, and refine the criteria that must be satisfied before a determination can be made.

Part 1 - Amendments

Criminal Code Act 1995

Item 1 - subsection 300.1(1) of the Criminal Code

This item inserts '(the TINDAPS Convention)' after '20 December 1988' to clarify the expression, which is used in new sections 301.1, 301.2 and 301.3.

The TINDAPS Convention is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances , done at Vienna on 20 December 1988.

Item 2 - section 300.2 of the Criminal Code (definition of border controlled drug )

This item repeals the definition of border controlled drug from existing section 300.2 of the Criminal Code and replaces it with a reference to the definition provided for that term by proposed section 301.4 (see item 16 for a detailed description of the definition of border controlled drug ).

Item 3 - section 300.2 of the Criminal Code (definition of border controlled plant )

This item repeals the definition of border controlled plant from existing section 300.2 of the Criminal Code and replaces it with a reference to the definition provided for that term by new section 301.5 (see item 16 for a detailed description of the definition of border controlled plant ).

Item 4 - section 300.2 of the Criminal Code (definition of border controlled precursor )

This item repeals the definition of border controlled precursor from existing section 300.2 of the Criminal Code and replaces it with a reference to the definition provided for that term by proposed section 301.6 (see item 16 for a detailed description of the definition of border controlled precursor ).

Item 5 - section 300.2 of the Criminal Code (definition of commercial quantity )

This item repeals the definition of commercial quantity from existing section 300.2 of the Criminal Code, and in relation to a serious drug, controlled precursor, or border controlled precursor, and replaces it with a reference to the definition provided for that term by proposed section 301.10 (see item 16 for a detailed description of the definition of commercial quantity ).

Item 6 - section 300.2 of the Criminal Code (definition of controlled drug )

This item repeals the definition of controlled drug from existing section 300.2 of the Criminal Code and replaces it with a reference to the definition provided for that term by proposed section 301.1 (see item 16 for a detailed description of the definition of controlled drug ).

Item 7 - section 300.2 of the Criminal Code (definition of controlled plant )

This item repeals the definition of controlled plant from existing section 300.2 of the Criminal Code and replaces it with a reference to the definition provided for that term by proposed section 301.2 (see item 16 for a detailed description of the definition of controlled plant ).

Item 8 - section 300.2 of the Criminal Code (definition of controlled precursor )

This item repeals the definition of controlled precursor from existing section 300.2 of the Criminal Code and replaces it with a reference to the definition provided for that term by proposed section 301.3 (see item 16 for a detailed description of the definition of controlled precursor ).

Item 9 - section 300.2 of the Criminal Code

Determined is a new term introduced into Part 9.1 of the Criminal Code. The term determined has been introduced to assist with the interpretation of paragraphs 307.4(1)(b), 307.7(1)(c), 307.10(1)(c), and 308.1(1)(b), which have been amended by items 17 and 18 so that they do not apply to determined substances. This will mean that 'possession' offences and the offence of importing or exporting without commercial intent will not apply to substances listed by emergency determination. The rationale for this is described in detail at items 17 and 18.

This item defines determined in relation to a serious drug, controlled precursor or border controlled precursor. 'Serious drug' is defined in 300.2 as a controlled drug, border controlled drug, controlled plant and border controlled plant. Each of these terms is also defined in Subdivision A of Division 301 (see item 16 for the detailed descriptions of the definitions of these terms).

Paragraph 300.2(a) defines determined in relation to a 'serious drug' to mean determined by the Minister under the emergency determination mechanism at section 301.13 (see item 16 for detailed description of this mechanism).

Paragraph 300.2(b) defines determined in relation to a controlled precursor or border controlled precursor to mean determined by the Minister under the emergency determination mechanism for serious drug precursors at new section 301.14 (see item 16 for detailed description of this mechanism).

Item 10 - section 300.2 of the Criminal Code

A drug analogue was not previously defined in section 300.2 (the definition section of Part 9.1) of the Criminal Code. The definition of a drug analogue was included next to the lists of controlled and border controlled drugs in Division 314 of the Criminal Code.

This item inserts the definition of a drug analogue into section 300.2. A drug analogue is defined with reference to the definition provided for that term by new section 301.9 (see item 16 for a detailed description of the definition of drug analogue ).

Item 11 - section 300.2 of the Criminal Code

Listed is a new term introduced into Part 9.1 of the Criminal Code.

The term listed is generally defined to mean listed in the Criminal Code Regulations 2002 (Cth). The term has been introduced to assist with the definitions of controlled drugs (section 301.1), controlled plant (section 301.2), border controlled drugs (section 301.4), and border controlled plants (section 301.5).

The definition directs the reader to specific paragraphs which provide for the listing of drugs and plants (controlled and border controlled) by a regulation. This item clarifies that:

•

a listed controlled drug is a drug listed by a regulation in accordance with paragraph 301.1(a)

•

a listed controlled plant is a plant listed by a regulation in accordance with

•

paragraph 301.2(a)

•

a listed border controlled drug is a drug listed by a regulation in accordance with paragraph 301.4(a), and

•

a listed border controlled plant is a plant listed by a regulation in accordance with paragraph 301.5(a).

The definition of listed also assists with the interpretation of what is a drug analogue for the purposes of the offence provisions in Part 9.1 (the definition of 'drug analogue' is found at section 301.9). The term listed does not include listed precursors (section 301.8). This means analogues of listed precursors will not be subject to the serious drug offences, which is in line with the current approach in Part 9.1 of the Criminal Code.

Item 12 - section 300.2 of the Criminal Code (definition of marketable quantity )

This item repeals the current definition of marketable quantity in section 300.2 of the Criminal Code and replaces it with a reference to the marketable quantity of a serious drug (as defined in new section 300.2 to mean a controlled drug, border controlled drug, controlled plant or border controlled plant), controlled precursor or border controlled precursor as defined by new section 301.11 (see item 16 for a detailed description of the definition of marketable quantity ).

Item 13 - section 300.2 of the Criminal Code

Serious drug is a new term introduced into Part 9.1 of the Criminal Code.

The term serious drug has been introduced to assist with the understanding of other new provisions in Part 9.1, in particular the definitions of commercial quantity, marketable quantity and the conditions for listing by regulation (new section 301.7, see item 16 for a detailed description of this provision)

Serious drug means a controlled drug (defined in section 301.1 and described at item 16), a controlled plant (defined in section 301.2 and described at item 16), a border controlled drug (defined in section 301.4 and described at item 16) or a border controlled plant (defined in section 301.5 and described at item 16). The definition does not include precursors.

The lists of controlled drugs, controlled plants, border controlled drugs and border controlled plants will be enacted in the Criminal Code Regulations 2002 (Cth).

The term 'serious drugs' is also used in headings throughout Part 9.1 of the Criminal Code (as amended), in this context the term is used for indicative purposes only and is not intended to define the scope of the provision.

Item 14 - section 300.2 of the Criminal Code

This item inserts 'TINDAPS Convention has the meaning given by section 300.1' into section 300.2 (the definition section of Part 9.1). This item refers the reader to the full name and details of the TINDAPS Convention (the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances , done at Vienna on 20 December 1988).

Item 15 - section 300.2 of the Criminal Code (definition of trafficable quantity )

This item repeals the current definition of trafficable quantity in section 300.2 of the Criminal Code and replaces it with a reference to the trafficable quantity of a controlled drug or a controlled plant as defined by section 301.12 (see item 16 for a detailed description of the definition of trafficable quantity ).

Item 16 - Division 301 of the Criminal Code

This item repeals Division 301, which provides for the listing of additional drugs, plants and precursors by interim regulations and emergency determination. Division 301 is replaced with the following provisions:

Division 301 - Serious drugs and precursors

Subdivision A - Serious drugs and precursors: definitions

Section 301.1 - meaning of 'controlled drug'

This item replaces the current definition of controlled drug in section 300.2 with a new definition which takes into account the amendments proposed to Part 9.1 by this Schedule, and clearly identifies that drug analogues are also controlled drugs for the purpose of the offence provisions in Part 9.1.

Under proposed section 301.1 a controlled drug is a substance, other than a growing plant, that is listed by a regulation as a controlled drug, a drug analogue of a controlled drug listed by a regulation, or a drug determined by the Minister as a controlled drug in accordance with the serious drug emergency determination mechanism at section 301.13. 'Regulation' refers to the Criminal Code Regulations 2002 (Cth).

Proposed subsection 301.1(2) indicates to the reader that the substances listed in the regulations as controlled drugs are internationally controlled substances (or analogues of internationally controlled substances) under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (see item 14).

A note has been included following proposed section 301.1 to explain to the reader that the Minister must be satisfied of certain conditions before a decision to list a controlled drug by regulation or by determination can be made. Before a controlled drug can be listed in a regulation, the Minister must be satisfied of the criteria in section 301.7. A controlled drug is listed indefinitely in regulations until removed. 'Regulation' refers to the Criminal Code Regulations 2002 (Cth).

Alternatively, a determination may be made by the Minister in relation to a controlled drug if at least one of the conditions in subsection 301.13(2) is satisfied. A determination to list a controlled drug may have effect for an initial period of up to 12 months, which in exceptional circumstances may be extended up to a total of 18 months from the time the determination is registered. Determinations and regulations are legislative instruments under the Legislative Instruments Act 2003 (Cth) and therefore subject to Parliamentary scrutiny and disallowance (see sections 301.13 and 301.7 for further details).

A further note is included directing the reader to the definition of drug analogue , which can be found at section 301.9. Drug analogues are defined as substances that have similar chemical structure to a controlled or border controlled drug and may be reasonably expected to have a similar pharmacological effect to that of that listed drug.

Section 301.2 - meaning of 'controlled plant'

This item replaces the current definition of controlled plant in section 300.2 with a modified definition that takes into account the amendments made to Part 9.1.

Under proposed section 301.2 a controlled plant is a growing plant that is either listed by a regulation as a controlled plant or has been determined by the Minister as a controlled plant in accordance with the serious drug emergency determination mechanism at proposed section 301.13. 'Regulation' refers to the Criminal Code Regulations 2002 (Cth).

A note has been included following section 301.2 to explain to the reader that the Minister must be satisfied of certain conditions before a decision to seek to list a controlled plant by regulation or by determination can be made. Before a controlled plant can be listed in a regulation, the Minister must be satisfied of the criteria in section 301.7. A controlled plant is listed indefinitely in regulations until removed.

Alternatively, a determination may be made by the Minister in relation to a controlled plant if at least one of the conditions in subsection 301.13(2) is satisfied. A determination to list a controlled plant may have effect for an initial period of up to 12 months, which may in exceptional circumstances be extended up to a total of 18 months from the time the determination is registered. Determinations and regulations are legislative instruments under the Legislative Instruments Act 2003 (Cth) and therefore subject to Parliamentary scrutiny and disallowance (see sections 301.13 and 301.7 for further details).

Proposed subsection 301.2(2) indicates to the reader that the substances listed in the regulations as controlled plants are internationally controlled substances (or analogues of internationally controlled substances) under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (see item 14).

Section 301.3 - meaning of 'controlled precursor'

This item replaces the current definition of controlled precursor in section 300.2 with a new definition to take into account the amendments made to Part 9.1 and to clearly identify that salts or esters of a listed controlled precursor are also controlled precursors for the purpose of the offence provisions in Part 9.1 of the Criminal Code. Salts or esters of controlled precursors are included as they represent equivalent chemical forms in which the controlled precursors are commonly available.

Under proposed section 301.3, a controlled precursor is a substance, including a growing plant, that is listed by a regulation as a controlled precursor, a salt or ester of a listed controlled precursor, or a controlled precursor determined by the Minister in accordance with the serious drug precursor emergency determination mechanism at section 301.14.

A note has been included following section 301.3 to explain to the reader that the Minister must be satisfied of certain conditions before a decision to list a controlled precursor by regulation or by determination can be made. Before a controlled precursor can be listed in a regulation, the Minister must be satisfied of the criteria in section 301.8, that is that there is a risk that the substance will be used to unlawfully manufacture a controlled drug (other than a substance determined by the Minister in accordance with 301.13 or 301.14). A controlled precursor is listed indefinitely in regulations until removed. 'Regulation' refers to the Criminal Code Regulations 2002 (Cth).

Alternatively, a determination can be made by the Minister in relation to a controlled precursor if satisfied that there is an imminent and substantial risk that the substance will be used to unlawfully manufacture a controlled drug (subsection 301.14(2)). A controlled precursor may be listed for a period of up to 18 months from the time the determination is registered.

Proposed subsection 301.3(2) indicates to the reader that the substances listed in the regulations as controlled precursors are internationally controlled substances (or analogue of internationally controlled substances) under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (see item 14).

A further note is included directing the reader to the definition of drug analogue , which can be found at section 301.9. A drug analogue is defined as a substance that has a similar chemical structure to a controlled or border controlled drug and may be reasonably expected to have a similar pharmacological effect to that of the listed drug.

Section 301.4 - meaning of 'border controlled drug'

This item replaces the current definition of border controlled drug in section 300.2 with a new definition which takes into account the amendments made to Part 9.1 and clearly identifies that drug analogues are also border controlled drugs for the purpose of the offence provisions in Part 9.1 of the Criminal Code.

Under new section 301.4, a border controlled drug is a substance, other than a growing plant, that is listed by a regulation as a border controlled drug, a drug analogue of a border controlled drug listed by a regulation, or a drug determined by the Minister as a border controlled drug in accordance with the serious drug emergency determination mechanism at section 301.13.

A note has been included following section 301.4 to explain to the reader that the Minister must be satisfied of certain conditions before a decision to list a border controlled drug by regulation or by determination can be made. Before a border controlled drug can be listed in a regulation, the Minister must be satisfied of the criteria in section 301.7. A border controlled drug is listed indefinitely in regulations until removed. 'Regulation' refers to the Criminal Code Regulations 2002 (Cth).

Alternatively, a determination may be made by the Minister in relation to a border controlled drug if at least one of the conditions in subsection 301.13(2) is satisfied. A determination to list a border controlled drug may have effect for a period of up to 18 months from the time the determination is registered.

A further note is included directing the reader to the definition of drug analogue , which can be found at section 301.9. A drug analogue is defined as substance that has a similar chemical structure to a controlled or border controlled drug and may be reasonably expected to have a similar pharmacological effect to that of the listed drug.

Section 301.5 - meaning of 'border controlled plant'

This item replaces the current definition of border controlled plant in section 300.2 with a new definition to take into account the amendments made to Part 9.1 of the Criminal Code.

Under proposed section 301.5 a border controlled plant is a growing plant that is listed by a regulation as a controlled plant or a substance that has been determined by the Minister as a border controlled plant in accordance with the serious drug emergency determination mechanism at section 301.13. 'Regulation' refers to the Criminal Code Regulations 1995 (Cth).

A note has been included following section 301.5 to explain to the reader that the Minister must be satisfied of certain conditions before a decision to list a border controlled plant by regulation or by determination can be made. Before a border controlled plant can be listed in a regulation, the Minister must be satisfied of the criteria in section 301.7. A border controlled plant is listed indefinitely in regulations until removed. 'Regulation' refers to the Criminal Code Regulations 2002 (Cth).

Alternatively, a determination can be made by the Minister in relation to a border controlled plant if satisfied of the conditions in subsection 301.13(2)). A determination to list a border controlled plant may have effect for a period of up to 18 months from the time the determination is registered.

Section 301.6 - meaning of 'border controlled precursor'

This item replaces the current definition of border controlled precursor in section 300.2 with a new definition that takes into account the amendments made to Part 9.1 of the Criminal Code. The definition clearly identifies that salts, esters and immediate precursors of a listed border controlled precursor are also border controlled precursors for the purpose of the offence provisions in Part 9.1.

Salts and esters of border controlled precursors are included as they represent equivalent chemical forms in which border controlled precursors are commonly available. Immediate precursors of border controlled precursors are included as they represent substances from which border controlled precursors may be directly obtained in a chemical manufacturing process.

Under proposed section 301.6 a border controlled precursor is a substance, including a growing plant, that is listed by a regulation as a border controlled precursor, a salt or ester of a listed border controlled precursor, an immediate precursor of listed border controlled precursor, or a border controlled precursor determined by the Minister in accordance with the serious drug precursor emergency determination mechanism at section 301.14.

A note has been included following section 301.6 to explain to the reader that the Minister must be satisfied of certain conditions before a decision to list a border controlled precursor, by regulation or by a determination can be made. Before a border controlled precursor can be listed in a regulation, the Minister must be satisfied of the criteria under section 301.8, that is that there is a risk that the substance will be used to unlawfully manufacture a controlled drug (other than a substance determined by the Minister in accordance with sections 301.13 or 301.14 which relate to the listing by emergency determination). A border controlled precursor is listed indefinitely in regulations until removed. 'Regulation' refers to the Criminal Code Regulations 1995 (Cth).

Alternatively, a determination can be made by the Minister in relation to a border controlled precursor if satisfied of the conditions in subsection 301.14(2), that is that that there is an imminent and substantial risk that the substance will be used to unlawfully manufacture a controlled drug. A determination to list a border controlled precursor may have effect for a period of up to 18 months from the time the determination is registered.

Subsection 301.6(2) provides that, for the purposes of subsection 301.6(1), an immediate precursor of a precursor listed in regulations means a chemical or compound (other than another precursor that is so listed) that is an immediate precursor in the manufacture by a chemical process of the listed precursor. This definition has been taken from current subsection 314.6(3) of the Criminal Code.

Section 301.7 - serious drugs - conditions for listing by regulation

This item is a new provision to Part 9.1 of the Criminal Code

Currently, the listings and quantities of 'controlled' and 'border controlled' drugs, plants and precursors are contained within Division 314 of the Criminal Code. An amendment to the listings (for example to add an additional drug to the list of 'controlled drugs') requires a legislative amendment. The legislative process may delay the timely listing of a substance as a controlled or border controlled substance in the Criminal Code, and this may be exploited by entrepreneurial criminals and organised crime groups.

'Serious drug' is defined in section 300.2 as controlled drugs, border controlled drugs, controlled plants and border controlled plants. Each of these terms is also defined in new Subdivision A of Division 301.

Given the growing markets in new and emerging substances, law enforcement agencies consider that it is increasingly important that swift action can be taken to proscribe new substances, where appropriate. Transferring the listings of illicit (controlled or border controlled) substances to regulations will improve the Government's ability to be responsive as the illicit drugs market evolves, allowing new and emerging substances to be included in regulations more quickly than listing substances in the Criminal Code. This would be consistent with the recommendation of the Model Criminal Code Officers Committee which developed the model criminal offences relating to serious drugs in 1998. The Committee recommended that lists of controlled substances and threshold quantities be contained in regulations 'so that they can be quickly and easily updated'. ^[1]

In circumstances where enough is known about a substance, in particular its effect, it is appropriate for a new drug or plant to be prescribed in the Criminal Code Regulations 2002 (Cth) where the indefinite listing in regulations is warranted.

The intention of section 301.7 is to capture only illicit substances. Before a substance can be listed in regulations the Minister must be satisfied that the substance or plant is likely to be taken without appropriate medical supervision. To be taken without medical supervision in this context means to be used in circumstances beyond those considered appropriate for medical or therapeutic purposes. In addition to this, the Minister must also be satisfied of one or more the five listed criteria in paragraph 301.7(b) before a regulation may be made.

For a substance to be listed in regulations, the Minister must be satisfied that:

(i)

taking the substance or plant would create a risk of death or harm

(ii)

taking the substance would have a physical or mental effect substantially similar to that caused by taking a listed serious drug

(iii)

the substance has the capacity to cause physiological dependence

(iv)

possession or conduct is proscribed under a similar law of another jurisdiction, or

(v)

the substance or plant poses a substantial risk to the health or safety of the public.

The criteria at paragraph 301.7(b) are consistent with the approach taken by other jurisdictions such as Queensland, New Zealand and the United States, for listing illicit substances subject to criminal offences.

The processes differ for listing a substance through the determination mechanism and permanently in regulations. There are also important differences between some of the requirements for making an emergency determination as compared to making a regulation.

A determination is made by the Minister and is a quicker process than having a substance listed in regulations. For a determination to be made, the Minister must be satisfied that there is an imminent and substantial risk that the drug or plant will be taken without appropriate medical supervision. In contrast, the process of preparing a regulation does not require the Minister to be satisfied that there is an 'imminent and substantial' risk associated with the substance before a regulation may be made. If the Minister is satisfied of 301.7(a) and one of the criteria in section 301.7(b), a regulation may be prepared for consideration by the Governor-General. This difference reflects that the emergency determination mechanism should only be used in the cases that require immediate action to control a high risk substance.

Before a regulation is made consultation will take place between relevant Commonwealth agencies (including the Attorney-General's Department, the Australian Federal Police, the Australian Customs and Border Protection Service, the Department of Health and Ageing, and the Australian Crime Commission) to ensure consistency across Commonwealth instruments as much as possible and so that all available information in relation to a new substance is considered.

A regulation made by the Governor General to list a new substance will be a legislative instrument. An emergency determination by the Minister will also be a legislative instrument. The regulation or determination will be referred to the Senate Standing Committee on Regulations and Ordinances for consideration ( Legislative Instrument Act 2003 ) where it will be scrutinised to ensure (among other things) that it does not unduly trespass on personal rights and liberties and it is in accordance with the provisions in the Criminal Code. In accordance with section 42 of the Legislative Instrument Act 2003 the regulation will also be subject to disallowance.

Section 301.8 - serious drug precursors - conditions for listing by regulation

This item is a new provision to Part 9.1 of the Criminal Code.

Before a regulation may be made to list a substance as a controlled precursor or a border controlled precursor, the Minister must be satisfied that there is a risk that the substance will be used to unlawfully manufacture a controlled drug (other than a controlled drug determined by the Minster under the emergency determination mechanism).

The definition of 'controlled drug' is found at section 301.1. A controlled drug is a substance, other than a growing plant, that is listed by a regulation as a controlled drug, a drug analogue of a listed controlled drug; or a drug determined by the Minister as a controlled drug under section 301.13.

The manufacture of a controlled drug can be unlawful according to any or a number of federal, State or Territory laws. Because precursors have a wide range of legitimate uses, this provision identifies the necessary nexus to illicit drug manufacture. Manufacturing a controlled drug is a major indicator of criminality in the context of the precursor offences in Part 9.1 of the Criminal Code.

Section 301.9 - meaning of 'drug analogue'

Existing subsections 314.1(2) and 314.4(2) of the Criminal Code provide the definition of drug analogue . The amendments proposed in this Schedule would repeal these two sections and enact section 301.9, which contains a similar definition of a drug analogue.

Drug analogues are substances that have a similar chemical structure, and may be expected to have a similar pharmacological effect, to that of a controlled or border controlled drug listed in regulations (in accordance with section 301.7).

Subsection 301.9(2) provides that a drug analogue does not include a substance that is itself a listed controlled drug or border controlled drug. This is consistent with the existing provisions for drug analogues in the Criminal Code.

Subdivision B - Serious drugs and precursors: commercial, marketable and trafficable quantities

Section 301.10 - meaning of 'commercial quantity'

Section 301.10 is a new provision which brings together the current provisions found at subsections 314.1(5) and 314.4(4) of the Criminal Code with the commercial threshold quantities found in the list of substances at section 314 of the Criminal Code. For ease of reading this item provides a table which indicates to the reader all possible meanings of 'commercial quantity' that apply to the offences in Part 9.1 of the Criminal Code.

In relation to all serious drugs (other than analogues), controlled precursors and border controlled precursors, the minimum commercial quantity to be taken into account when applying the offences in Part 9.1 is the commercial quantity listed in the regulations for that substance.

In relation to any drug, plant or precursor covered by an emergency determination, the minimum commercial quantity is the quantity determined by the Minister in accordance with the emergency determination provision at section 301.15.

In relation to a drug analogue of a controlled drug or border controlled drug, the minimum commercial quantity is the commercial quantity listed in the regulations for that controlled drug or border controlled drug. If a substance is a drug analogue of two or more listed controlled drugs or border controlled drugs then the minimum commercial quantity of the drug analogue is calculated by taking the smallest commercial quantity of the two or more listed drugs.

A note has been included in section 301.10 to refer the reader to the definition of drug analogue at section 301.9. A drug analogue is a substance that has a similar chemical structure, and may be expected to have a similar pharmacological effect, to that of a controlled or border controlled drug.

Section 301.11 - meaning of 'marketable quantity'

Section 301.11 is a new provision which brings together the current provisions found at subsections 314.1(4) and 314.4(3) with the marketable threshold quantities found in the list of substances at section 314 of the Criminal Code. For ease of reading this item provides a table which indicates to the reader all possible meanings of 'marketable quantity' that apply to the offences in Part 9.1 of the Criminal Code.

In relation to all serious drugs (other than analogues), controlled precursor and border controlled precursors listed by a regulation the minimum marketable quantity to be taken into account when applying the offences in Part 9.1 is the marketable quantity listed in the regulations for that substance.

In relation to any drug, plant or precursor covered by an emergency determination, the minimum marketable quantity is the quantity determined by the Minister in accordance with the emergency determination provision at section 301.15.

In relation to a drug analogue of a controlled drug or border controlled drug, the minimum marketable quantity is the marketable quantity listed in the regulations for that controlled drug or border controlled drug. If a substance is a drug analogue of two or more listed controlled drugs or border controlled drugs then the minimum marketable quantity of the drug analogue is calculated by taking the smallest marketable quantity of the two or more listed drugs.

A note has been included in section 301.11 to refer the reader to the definition of drug analogue at section 301.9. A drug analogue is a substance that has a similar chemical structure, and may be expected to have a similar pharmacological effect, to that of a controlled or border controlled drug.

Section 301.12 - meaning of 'trafficable quantity'

Section 301.12 is a new provision which brings together the current provision at subsection 314.1(3) of the Criminal Code with the trafficable threshold quantities found in the list of substances at section 314 of the Criminal Code. For ease of reading, this item provides a table which indicates to the reader all possible meanings of 'trafficable quantity' that apply to the offences in Part 9.1 Criminal Code.

Trafficable quantities are only prescribed for controlled drugs and controlled plants in the Criminal Code. The minimum trafficable quantity to be taken into account when applying the offences in Part 9.1 is the trafficable quantity listed in the regulations for that substance.

The quantity threshold tiers (i.e trafficable, marketable and commercial quantities) currently in place for substances listed in the Criminal Code will not be amended by this Schedule.

In relation to controlled drugs or controlled plants covered by an emergency determination the minimum trafficable quantity is the quantity determined by the Minister in accordance with the emergency determination provision at section 301.15.

In relation to a drug analogue of a controlled drug or border controlled drug the minimum trafficable quantity is the trafficable quantity listed in the regulations for that controlled drug or border controlled drug. If a substance is a drug analogue of two or more listed drugs then the minimum trafficable quantity of the drug analogue is calculated by taking the smallest trafficable quantity of the two or more listed drugs.

To assist in interpreting section 301.12, a note has been included which directs the reader to the definition of drug analogue at section 301.9. A drug analogue is a substance that has a similar chemical structure, and may be expected to have a similar pharmacological effect, to that of a controlled or border controlled drug. A drug analogue of a listed controlled or border controlled drug is itself a drug for the purposes of the offence provisions in Part 9.1 of the Criminal Code.

Subdivision C - Serious drugs and precursors: emergency determinations

Section 301.13 - emergency determinations - serious drugs

This item adopts, with some modification, existing sections 301.6 and 301.8 of the Criminal Code which deals with the power to make emergency determinations for listing substances as controlled and border controlled drugs and plants.

The emergency determination mechanism aims to increase public safety by ensuring that substances with unknown or unidentified harms can be prohibited in a responsive manner, until such time as an appropriate assessment has been made.

In order to make a determination under section 301.13, the Minister must first be satisfied that there is an imminent and substantial risk that the substance or plant will be taken without appropriate medical supervision. In this context, to be 'taken without medical supervision' means to be used in circumstances beyond those considered appropriate for medical or therapeutic purposes. This may include circumstances where there is not yet evidence available that the substance is being taken without medical supervision in Australia, but there is evidence from other countries that the substance is available in circumstances beyond those considered appropriate for medical or therapeutic purposes, and there is a risk the substance may be amenable to abuse in Australia. The requirement for the Minister to consider whether the substance may be taken without medical supervision reflects existing sections 301.6 and 301.8 of the Criminal Code.

Once satisfied that there is an imminent and substantial risk that the substance or plant will be taken without appropriate medical supervision the Minister must then consider the conditions in paragraph 301.13(b). For a determination to be made, the Minister must be satisfied of one or more of the following:

(i)

taking the substance or plant may create a risk of death or harm

(ii)

taking the substance or plant may have a physical or mental effect substantially similar to that caused by taking a listed serious drug

(iii)

there is limited or no known lawful use of the substance or plant in Australia, and the substance or plant has been found by a public official in the course of the performance of the official's duties

(iv)

the substance or plant may pose a substantial risk to the health or safety of the public.

Subsections 301.13(b)(i),(ii) and (iv) include the word 'may' to reflect that there may be risks associated with the substance, but these risks may not be able to be confirmed by evidence at the time. This will enable the proscription of the substance through a determination, pending expert advice to determine whether the substance should be proscribed in regulations in the longer term.

Subsection 301.14(3) makes it clear that the Minister cannot make more than one determination in relation to a particular substance or plant. Threshold quantities of drugs listed through determinations may be prescribed through the determination in accordance with section 301.15.

Before an emergency determination to list a new substance is made under section 301.13, consultation will take place between relevant Commonwealth agencies (including the Attorney-General's Department, the Australian Federal Police, the Australian Customs and Border Protection Service, the Department of Health and Ageing, and the Australian Crime Commission) to ensure consistency across Commonwealth instruments as much as possible and so that all available information in relation to a new substance is considered.

The processes differ for listing a substance through the determination mechanism and permanently in regulations. There are also important differences between some of the requirements for making an emergency determination as compared to making a regulation.

A determination is made by the Minister and is a quicker process than having a substance listed by regulations. For a determination to be made the Minister must be satisfied that there is an imminent and substantial risk that the drug or plant will be taken without appropriate medical supervision. Alternatively, the process of preparing a regulation does not require the Minister to be satisfied that there is an 'imminent and substantial' risk associated with the substance before a regulation may be made. I f the Minister is satisfied of 301.7(a) and one of the criteria in section 301.7(b), a regulation may be prepared for consideration by the Governor-General. This difference reflects that the emergency determination mechanism should only be used in the cases that require immediate action to control the substance.

An emergency determination will be a legislative instrument. The determination will be referred to the Senate Standing Committee on Regulations and Ordinances for consideration ( Legislative Instrument Act 2003 ) where it will be scrutinised to ensure (among other things) that it does not unduly trespass on personal rights and liberties and it is in accordance with the provisions in the Criminal Code. In accordance with section 42 of the Legislative Instrument Act 2003 the determination will also be subject to disallowance.

Section 301.14 - emergency determinations - serious drug precursors

This item adopts, with some modification, current sections 301.7 and 301.9 of the Criminal Code. Section 301.14 gives the Minister the power to make emergency determinations listing substances as a controlled precursor or border controlled precursor for the purposes of Part 9.1 of the Criminal Code. In order to make a determination under section 301.14, the Minister must first be satisfied that there is an imminent and substantial risk that the substance will be used to unlawfully manufacture a controlled drug.

The definition of 'controlled drug' is found at section 301.1. A controlled drug is a substance, other than a growing plant, that is listed by a regulation as a controlled drug, a drug analogue of a listed controlled drug; or a drug determined by the Minister as a controlled drug under section 301.13 (which outlines the emergency determination mechanism).

The manufacture of a controlled drug can be unlawful according to any or a number of federal, State or Territory laws. Because precursors have a wide range of legitimate uses, this provision identifies the necessary nexus to illicit drug manufacture. Manufacturing a controlled drug is a major indicator of criminality in the context of the precursor offences in Part 9.1 of the Criminal Code.

Before an emergency determination to list a new controlled precursor is made under section 301.14, consultation will take place between Commonwealth agencies (the Attorney-General's Department, the Australian Federal Police, the Australian Customs and Border Protection Service, the Department of Health and Ageing, the Australian Crime Commission and other relevant agencies) to ensure consistency across Commonwealth instruments as much as possible and so that all available intelligence in relation to a new substance is considered.

Subsection 301.14(3) makes it clear that the Minister cannot make more than one determination in relation to a particular substance or plant.

An emergency determination will be a legislative instrument. The determination will be referred to the Senate Standing Committee on Regulations and Ordinances for consideration ( Legislative Instrument Act 2003) and will be scrutinised to ensure (among other things) that it does not unduly trespass on personal rights and liberties and it is in accordance with the provisions in the Criminal Code. In accordance with section 42 of the Legislative Instrument Act 2003 the determination will also be subject to disallowance.

Section 301.15 - emergency determinations - commercial, marketable and trafficable quantities

Subsection 301.15(1) allows the Minister to, by legislative instrument, prescribe quantities of a substance when an emergency determination is made. This replaces the (more complex) approach taken in existing section 301.10 of the Criminal Code. The Minister may prescribe commercial, marketable or trafficable quantities for controlled drugs and controlled plants, and commercial and marketable quantities for controlled precursors or border controlled precursors.

Subsection 301.15(2) restricts the Minister's power under subsection 301.15(1). The Minister may only make a determination specifying the quantity of a substance if there is no regulation in force at the time that specifies the quantity of that drug or precursor. This ensures that the quantities prescribed in regulations have precedence over those made in determinations.

A note is included to indicate to the reader that the definitions of commercial quantity, marketable quantity and trafficable quantity in Subdivision B (sections 301.10, 301.11 and 301.12) allow for quantities of serious drugs and precursors to be listed in regulations.

Section 301.16 - emergency determinations - effectiveness

This provision applies to emergency determinations made under new Subdivision C and adopts with modification current subsection 301.11(1) and section 301.12 of the Criminal Code

Under the current provisions in the Criminal Code a determination has effect for 28 days, or such shorter period as specified. However, evidence to support ongoing listing will not necessarily be readily available when the substance first comes to the attention of the Government, particularly when a substance is new and emerging. A 28 day period is insufficient time to obtain and assess such evidence sufficiently for a decision to be made on ongoing listing. Consequently, there may be difficulties and subsequent delays in satisfying the requirements for the listing of a new substance.

This was shown when the interim regulation mechanism was used for the first time in April 2011 to proscribe four drugs and one precursor (and threshold quantities) to be subject to Part 9.1 of the Criminal Code. These substances were Benzylpiperazine (BZP), Ketamine, Methcathinone, 4-Methylmethcathinone (4-MMC) and Phenylpropanolamine. ^[2] For the more novel substances (BZP and 4-MMC), it was difficult to obtain evidence to satisfy the particular requirements for listing. A significant proportion of this information was obtained from the European Monitoring Centre for Drugs and Drug Addiction and international sources found online.

When little is known about a substance, it is difficult to obtain enough information about the harms and effects of the substance in time to prevent their entry to the Australian market or their proliferation within Australia. The benefit of an emergency determination is that the Government can act quickly to prevent trade in potentially harmful substances.

Subsection 301.16(1) aims to provide sufficient time for appropriate analysis, information gathering and consultation to be undertaken, by extending the 28 day period to provide that an emergency determination has effect for an initial period up to 12 months from the time that the determination is registered (within the meaning of the Legislative Instruments Act 2003 ). The 12 month period of effect is considered appropriate in order to allow for expert analysis in determining the harms of a substance and, on the basis of this assessment, for an informed decision to be made about whether it should be listed indefinitely in the regulations. The 12 month period is also consistent with the approach taken by the United States and New Zealand for temporary or emergency listing of substances

Subsections 301.16(2) and 301.16(3) establish an extension mechanism for emergency determinations. If exceptional circumstances prevent the listing by regulation of the substance or quantity, these subsections provide that the Minister may extend by legislative instrument the period in which the determination is in force for a further period or periods, providing that the determination is in force for no longer than 18 months after the time of registration.

Subsection 301.16(4) ensures that an emergency determination made under Subdivision C has no effect to the extent that it is inconsistent with a regulation made to list a substance under Subdivision A.

Section 301.17 - emergency determinations - publication

Section 301.17 adopts current subsections 301.11(4) and (5) of the Criminal Code which establish an additional requirement on the Minister when making an emergency determination under Subdivision C.

Subsection 301.17(1) provides that on or before the day on which the determination is registered, the Minister must (a) make a public announcement of the determination, and (b) cause a copy of the announcement to be published on the internet and in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory.

A public announcement is considered appropriate given the serious criminal offences that are enlivened by the determination that a substance is subject to Part 9.1 of the Criminal Code. An announcement made under subsection 301.17(1) is not a legislative instrument under the Legislative Instrument Act 2003 (Cth).

Item 17 - at the end of paragraphs 307.4(1)(b), 307.7(1)(c) and 307.10(1)(c) of the Criminal Code

This item adds 'other than a determined border controlled drug or a determined border controlled plant' at the end of paragraphs 307.4(1)(b), 307.7(1)(c) and 307.10(1)(c).

Emergency determinations are designed to cater for the situation where there are reasons to justify the urgent proscription of a substance, allowing substances with suspected but unconfirmed harms to be prohibited quickly pending full consideration by experts. If harms are then identified, the Minister would be able to consider preparing a regulation for the permanent listing of the substance in regulations.

On the basis that an emergency determination can be made in relation to a substance where the known risks may not yet be fully substantiated and that may later be found to have no known harms, it is not appropriate to subject an individual to criminal punishment on the basis of possessing a small quantity of the substance or importing/exporting border controlled substance without commercial intent.

For this reason, Part 9.1 of the Criminal Code has been amended so that a person cannot be subject to an offence against section 307.4, 307.7, 307.10, in relation to a substance that is subject to an emergency determination.

Remaining offence provisions in Part 9.1 will continue to apply with respect to substances subject to an emergency determination (as applicable).

Item 18 - at the end of paragraph 308.1(1)(b) of the Criminal Code

This item adds 'other than a determined controlled drug' to the end of paragraph 308.1(1)(b)

Emergency determinations are designed to cater for the situation where there are reasons to justify the urgent proscription of a substance, allowing substances with suspected but unconfirmed harms to be prohibited quickly pending full consideration by experts. If harms are then identified, the Minister would then be able to consider preparing a regulation for the permanent listing of the substance in regulations. On the basis that an emergency determination can be made in relation to a substance where the known risks may not yet be fully substantiated and that may later be found to have no known harms, it is not appropriate to subject an individual to criminal punishment on the basis of possessing a small quantity of the substance.

For this reason, Part 9.1 of the Criminal Code has been amended so that a person cannot be subject to an offence against section 308.1 (possessing controlled drugs) in relation to a substance that is subject to an emergency determination.

The remaining offence provisions in Part 9.1 will continue to apply with respect to substances subject to an emergency determination (as applicable).

Item 19 - Division 314 of the Criminal Code

This item repeals existing Division 314 of the Criminal Code.

Existing Division 314 of the Criminal Code currently contains the listings and quantities of 'controlled' and 'border controlled' drugs, plants and precursors. These listings are to be moved to the Criminal Code Regulations 2002 (Cth).

It is considered appropriate to transfer the listings of illicit substances to the regulations in order to allow the Government to respond swiftly to proscribe new substances that arise as the illicit drugs market evolves. In addition, it will permit new and emerging substances to be included in the regulations more quickly than listing substances in the Criminal Code, where an amendment to the list requires a legislative amendment. This is consistent with the recommendation of the Model Criminal Code Officers Committee which developed the model criminal offences relating to serious drugs in 1998.

Customs Act 1901

Item 20 - subsection 51A(1)

This item omits the phrase, '301.8 or 301.9 of the Criminal Code' from existing subsection 51A(1) of the Customs Act 1901 , and replaces it with the phrase 'Subdivision C of Division 301 of the Criminal Code (which deals with emergency Ministerial determinations of serious drugs and precursors)'.

This is a consequential amendment which is necessary as a result of item 16, which repeals Division 301 of the Criminal Code.

Item 21 - subsection 112A(1)

This item omits the phrase, '301.8 of the Criminal Code' in existing subsection 112A(1) of the Customs Act 1901 , and replaces it with the phrase 'section 301.13 of the Criminal Code (which deals with emergency Ministerial determinations of serious drugs)'.

This is a consequential amendment which is necessary as a result of item 16, which repeals Division 301 of the Criminal Code.

Item 22 - subsection 112A(3)

This item omits the phrase '301.9 of the Criminal Code' from existing subsection 112A(3) of the Customs Act 1901 , and replaces it with the phrase 'section 301.14 of the Criminal Code (which deals with emergency Ministerial determinations of serious drug precursors)'.

This is a consequential amendment which is necessary as a result of item 16, which repeals Division 301 of the Criminal Code.

Part 2 - Application and transitional

Item 23 - Application - offences committed after commencement

This is a formal clause that specifies that the amendments made by this Act apply to offences committed (or alleged to have been committed) on or after the commencement of the Act.

A note has been included which cross references section 2 of the Act, which provides that the Act commences on a day fixed by proclamation or 6 months following Royal Assent (whichever is earlier).

Item 24 - Transitional - listing of existing serious drugs and precursors by regulation

This item explains that substances listed in the Criminal Code before the commencement of this schedule will remain in the same class of substance. For example, amphetamine is listed as a controlled drug in section 314.1 of the Criminal Code, following the commencement of the Schedule, amphetamine will remain a controlled drug and be listed as a controlled drug in the Criminal Code Regulations 2002 (Cth). The Minister will not need to be satisfied of the criteria in new sections 301.7 or 301.8 (which relate to listing of new serious drugs and precursors by a regulation, explained in item16 above) for the substances currently subject to the offences in Part 9.1 of the Criminal Code.