Senate

Revised Explanatory Memorandum

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

Schedule 5 -Drugs, plants and precursors

Schedule 5 amends the Criminal Code Act 1995 to list additional substances and quantities to be subject to the Commonwealth serious drug offences in Part 9.1 of the Criminal Code.

These amendments will list additional substances within the Criminal Code on the basis there is an illicit market or the potential for an illicit market to exist in Australia for those substances. This will enhance the ability of law enforcement agencies to deal with persons and organised crime groups involved in drug importation and other drug related activities.

These amendments will replicate the regulations that were enacted on 9 April 2011 through the Criminal Code Amendment Regulations 2011 (No 1 ) (the Regulations) which expire after 12 months from the date of commencement. The amendments to the Criminal Code in this Schedule will ensure that the substances and threshold quantities proscribed through the Regulations remain subject to the Commonwealth serious drug offences.

Part 9.1 of the Criminal Code contains the Commonwealth's serious drug offences, which are divided into domestic offences involving 'controlled' drugs, plants and precursors, and import/export offences involving 'border controlled' drugs, plants and precursors.

Division 314 of Part 9.1 contains two different sets of lists: one set that applies to the domestic offences and another set that applies to the import/export offences. These lists include threshold quantities for most of the listed substances, which are used for determining penalty levels. The quantity of the substance generally determines the level of seriousness of the crime. There are three levels of seriousness for offences involving controlled drugs and plants: a commercial quantity (the most serious), a marketable quantity and a trafficable quantity (less serious). Offences involving controlled precursors and border controlled drugs, plants and precursors are based on two levels of seriousness: a commercial quantity and a marketable quantity. When a quantity has not been listed for a particular substance, a possession or import/export offence with a lower penalty may apply for conduct involving any quantity of that substance.

The sets of lists applying to 'controlled' drugs, plants and precursors and their threshold quantities are contained in sections 314.1-314.3 of the Criminal Code. Subsection 314.1(1) lists the controlled drugs and their trafficable, marketable and commercial quantities. Subsection 314.3(1) lists the controlled precursors and their marketable and commercial quantities.

The set of lists that apply to import/export offences are the lists of 'border controlled' drugs, plants and precursors, and threshold quantities contained in sections 314.4 - 314.6 of the Criminal Code. Subsection 314.4(1) lists the border controlled drugs and their marketable and commercial quantities. Subsection 314.6(1) lists the border controlled precursors and their marketable and commercial quantities.

The quantities for each substance proposed to be listed through the amendments in this Schedule reflect the quantities prescribed in the Regulations. These quantities were determined by using the typical amount consumed for personal use, multiplied out to determine trafficable, marketable and commercial quantities, or based on quantities of comparable substances in the Criminal Code or as prescribed in other Australian jurisdictions.

Criminal Code Act 1995

Items 1-5 of Schedule 5 relate to the lists of controlled drugs and precursors that apply to domestic offences.

Item 1 - Subsection 314.1(1) of the Criminal Code (after table item 1)

This item inserts Benzylpiperazine (BZP) as item 1A on the list of controlled drugs in subsection 314.1(1) of the Criminal Code, which will make it subject to the controlled drug offences in Part 9.1 of the Criminal Code.

This item also inserts three quantities for Benzylpiperazine (BZP): a trafficable quantity of 2.0 grams, a marketable quantity of 250.0 grams, and a commercial quantity of 0.75 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of Benzylpiperazine (BZP) contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure Benzylpiperazine (BZP).

Item 2 - Subsection 314.1(1) of the Criminal Code (after table item 7)

This item inserts Ketamine as item 7A on the list of controlled drugs in subsection 314.1(1) of the Criminal Code, which will make it subject to the controlled drug offences in Part 9.1 of the Criminal Code.

This item also inserts three quantities for Ketamine: a trafficable quantity of 3.0 grams, a marketable quantity of 500.0 grams, and a commercial quantity of 1.0 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of Benzylpiperazine (BZP) contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure Ketamine.

Item 3 - Subsection 314.1(1) of the Criminal Code (after table item 9)

This item inserts Methcathinone as item 9A on the list of controlled drugs in subsection 314.1(1) of the Criminal Code, which will make it subject to the controlled drug offences in Part 9.1 of the Criminal Code.

This item also inserts three quantities for Methcathinone: a trafficable quantity of 2.0 grams, a marketable quantity of 250.0 grams, and a commercial quantity of 0.75 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of Methcathinone contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure Methcathinone.

Item 4 - Subsection 314.1(1) of the Criminal Code (after table item 11)

This item inserts 4-Methylmethcathinone (4-MMC) as item 11A on the list of controlled drugs in subsection 314.1(1) of the Criminal Code, which will make it subject to the controlled drug offences in Part 9.1 of the Criminal Code.

This item also inserts three quantities for 4-Methylmethcathinone (4-MMC): a trafficable quantity of 2.0 grams, a marketable quantity of 250.0 grams, and a commercial quantity of 0.75 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of 4-Methylmethcathinone (4-MMC) contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure 4-Methylmethcathinone (4-MMC).

Item 5 - Subsection 314.3(1) of the Criminal Code (after table item 8)

This item inserts Phenylpropanolamine as item 8A on the list of controlled precursors in subsection 314.3(1) of the Criminal Code, which will make it subject to the controlled precursor offences in Part 9.1 of the Criminal Code.

This item also inserts two quantities for Phenylpropanolamine: a marketable quantity of 400.0 grams, and a commercial quantity of 1.2 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of Phenylpropanolamine contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure Phenylpropanolamine.

Items 6-12 of Schedule 5 relate to the lists of border controlled drugs and precursors that apply to import and export offences.

Item 6 - Subsection 314.4(1) of the Criminal Code (after table item 20)

This item inserts Benzylpiperazine (BZP) as item 20A on the list of border controlled drugs in subsection 314.4(1) of the Criminal Code, which will make it subject to the border controlled drug offences in Part 9.1 of the Criminal Code.

This item also inserts two quantities for Benzylpiperazine (BZP): a marketable quantity of 2.0 grams, and a commercial quantity of 0.75 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of Benzylpiperazine (BZP) contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of Benzylpiperazine (BZP).

Item 7 - Subsection 314.4(1) of the Criminal Code (after table item 83)

This item inserts Ketamine as item 83A on the list of border controlled drugs in subsection 314.4(1) of the Criminal Code, which will make it subject to the border controlled drug offences in Part 9.1 of the Criminal Code.

This item also inserts two quantities for Ketamine: a marketable quantity of 3.0 grams, and a commercial quantity of 1.0 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of Ketamine contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure Ketamine.

Item 8 - Subsection 314.4(1) of the Criminal Code (after table item 93)

Item 8 in conjunction with item 10 in Schedule 5 below, corrects the order of the listing for Methamphetamine within subsection 314.4(1). Methamphetamine is currently listed as table item 99 within subsection 314.4(1), but as the table list is organised alphabetically, it should be listed as table item 93A. This amendment does not have any practical impact. Methamphetamine will continue to be listed as a border controlled drug in subsection 314.4(1), to be subject to the border controlled drug offences of Part 9.1, and will continue to have the same two threshold quantities: a marketable quantity of 2.0 grams, and a commercial quantity of 0.75 kilograms. These quantities are pure quantities.

Item 9 - Subsection 314.4(1) of the Criminal Code (table item 95)

This item inserts two threshold quantities for Methcathinone. Methcathinone is already listed as a border controlled drug in subsection 314.4(1) (table item 95), but does not have any threshold quantities listed. Quantities are proposed to be added to the list to increase the range and severity of offences that a person can be charged with in relation to this substance.

This item inserts the following two quantities for Methcathinone: a marketable quantity of 2.0 grams and a commercial quantity of 0.75 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of Methcathinone contained in a mixture of other substances. In such a case the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure Methcathinone.

Item 10 - Subsection 314.4(1) of the Criminal Code (after table item 99)

This item repeals the listing of Methamphetamine as table item 99 within subsection 314.4(1). Item 8 of this Schedule, re-inserts the listing for Methamphetamine as a new table item 93A. This amendment will correct the listing of Methamphetamine, to ensure the table is organised alphabetically.

Item 11 - Subsection 314.4(1) of the Criminal Code (after table item 104)

This item inserts 4-Methylmethcathinone (4-MMC) as item 104A on the list of border controlled drugs in subsection 314.4(1) of the Criminal Code, which will make it subject to the border controlled drug offences in Part 9.1 of the Criminal Code.

This item also inserts two quantities for 4-Methylmethcathinone (4-MMC): a marketable quantity of 2.0 grams, and a commercial quantity of 0.75 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of

4-Methylmethcathinone (4-MMC) contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure 4-Methylmethcathinone (4-MMC).

Item 12 - Subsection 314.6(1) of the Criminal Code (table item 10)

This item inserts two threshold quantities for Phenylpropanolamine. Phenylpropanolamine is already listed as a border controlled precursor in subsection 314.6(1) (as table item 10) but does not have any threshold quantities listed. Quantities are proposed to be added to the list to increase the range and severity of offences that a person can be charged with in relation to this substance.

This item also inserts the following two quantities for Phenylpropanolamine: a marketable quantity of 3.2 grams, and a commercial quantity of 1.2 kilograms. These quantities are pure quantities. This is relevant where a prosecution relates to a quantity of Phenylpropanolamine contained in a mixture of other substances. In such a case, the prosecution will need to prove that the mixture contained the relevant threshold quantity of pure Phenylpropanolamine.

Customs Act 1901

Schedule 5 also amends the Customs Act to remove an anomaly relating to the seizure of border controlled drugs, plants and precursors (border controlled substances).

The Australian Customs and Border Protection Service (Customs and Border Protection) performs a key role in preventing, deterring and detecting prohibited, harmful and illegal goods from entering Australia. In relation to illicit drugs, plants and precursors, Customs and Border Protection is empowered to seize substances defined by regulation 5 of the Customs (Prohibited Imports) Regulations 1956 (PI Regulations) and border controlled substances as defined in Part 9.1 of the Criminal Code that have been unlawfully imported.

There is considerable overlap in the substances in the PI Regulations and the border controlled drugs, plants and precursors as defined in the Criminal Code. For example, both regimes list opium. The reason for this duplication is that the Criminal Code and the PI Regulations perform different functions. The Criminal Code generally prohibits the possession, trafficking, cultivation, sale, manufacture, import and export of certain drugs, plants and precursors, and applies high penalties to those offences depending on the quantities of the substance. The PI Regulations prohibit the unlawful importation of certain substances while still facilitating the legitimate importation of listed substances.

Anomalies in Seizure Powers

Anomalies currently exist in relation to the circumstances where Customs and Border Protection officers can exercise their powers of seizure.

a.

Customs and Border Protection officers can seize without a warrant any unlawfully imported prohibited import pursuant to section 203B of the Customs Act (at a Customs Place). Many border controlled drugs, plants and precursors as defined in the Criminal Code are also prohibited imports.

b.

Customs and Border protection officers can seize without a warrant any unlawfully imported border controlled drug or plant as defined in the Criminal Code pursuant to section 203C of the Customs Act (outside a Customs Place) if it is also a prohibited import under the PI Regulations.

c.

Where the unlawfully imported border controlled drug, plant or precursor is not also a prohibited import under the PI Regulations, Customs and Border Protection officers can only seize the drug, plant or precursor with a warrant (section 203 of the Customs Act).

It is anomalous that Customs and Border Protection officers can seize without a warrant some unlawfully imported border controlled substances under the Criminal Code, but others require a warrant.

The Customs, Excise and Bounty Legislation Amendment Act 1995 introduced into the Customs Act the provisions enabling Customs and Border Protection to seize certain unlawfully imported border controlled substances. This Act formed part of the Government's response to the Review of the Australian Customs Service (the "Conroy Review"). The Senate Legal and Constitutional Legislation Committee considered the measures concluding that they achieved '... the correct balance between judicial scrutiny to protect the rights of individuals on the one hand, and the ability of the Australian Customs Service to protect the community through seizing prohibited goods ...' at the time the serious drug import-export offences were in the Customs Act itself. However, these offences were subsequently removed from the Customs Act and, along with definitions of border controlled drugs, plants and precursors, inserted into the Criminal Code by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 . The anomaly dates back to this transition.

It is considered that all unlawfully imported border controlled substances should be subject to the same seizure regime established as part of the Government's response to the Conroy Review. The different approaches currently in existence are inefficient, placing an unnecessary administrative burden on Customs and Border Protection officers and others. Rectifying this anomaly has become a priority in light of the recent emergence of a drug analogues market.

Drug Analogues

Drug analogues are chemical compounds that share similar chemical structures and properties to other controlled illicit drugs. The majority of drug analogues have no or very limited legitimate scientific, industrial or medicinal uses and people have typically marketed them as 'legal' substitutes for illicit drugs such as methamphetamine and MDMA. The Australian Crime Commission has recently assessed in its Organised Crime in Australia 2011 report that, in recent years, users have increasingly sought out specific drug analogues to the point where a market for these substances now exists. Consistent with this assessment, the number and weight of drug analogues detected at the Australian border has risen substantially since late 2009.

Pursuant to section 314.4(2) of the Criminal Code, border controlled drugs are defined to include analogues of the border controlled drugs specifically listed in the Criminal Code. While being subject to control under the Criminal Code, the vast majority of drug analogues are not also prohibited imports under the PI Regulations. Consequently, Customs and Border Protection officers cannot seize many drug analogues detected at the border unless first obtaining a warrant.

Objective

The objective of the amendments is to provide a consistent approach to the manner in which Customs and Border Protection officers can seize unlawfully imported border controlled substances. The amendments would enable Customs and Border Protection officers to seize without a warrant all unlawfully imported border controlled drugs, plants, and precursors.

Safeguards and Limitations on Seizure Power

The powers that enable Customs and Border Protection officers to seize without a warrant unlawfully imported border controlled substances are subject to a range of safeguards. These safeguards limit the circumstances and locations in which these powers can be exercised and govern the manner in which such seizures must be dealt with. For example, Customs and Border Protection officers can only exercise their powers under section 203C of the Customs Act to seize 'narcotic goods' (border controlled drugs and plants) without a warrant outside of a Customs Place if it is necessary in order to prevent the goods from being concealed, lost or destroyed. Customs and Border Protection officers are also required under section 204 of the Customs Act to (as soon as reasonably practicable) deliver seizures of border controlled drugs and plants into the custody of the AFP.

In many cases, the substances that are subject to control under the Criminal Code but not under the PI Regulations have very limited, if any, legitimate scientific, medical or industrial uses. In most cases, there is no existing Commonwealth legislation authorising importation. This amendment will therefore enhance Customs and Border Protection's ability to prevent, deter and detect prohibited, harmful and illegal goods from entering the Australian community by enabling the consistent application of its powers to seize unlawfully imported border controlled drugs, plants and precursors.

This Bill will not:

•

disrupt any other safeguards in the Customs Act governing the circumstances where seizure powers can be exercised, and how seizures must be dealt with

•

alter the scope of substances which are subject to control at the Australian border

•

permit Customs and Border Protection to seize more substances than it can currently seize (with and without a warrant)

•

impact on the operation of the lawful authority defence in section 10.5 of the Criminal Code, or

•

impact on the ability for a legitimate importer to bring controlled substances into Australia pursuant to a licence/permit or exemption under the PI Regulations or other any other Commonwealth legislation that authorises their importation.

Item 13 - Subsection 4(1)

This item inserts a new definition into the Definitions section of the Customs Act of 'border controlled precursor'. A border controlled precursor will have the same meaning as in Part 9.1 of the Criminal Code, which defines a border controlled precursor to mean a substance (including a growing plant): listed or described as a border controlled precursor in section 314.6; or prescribed by regulations under subsection 301.4(1); or specified in a determination under subsection 301.9(1).

Item 14 - Subsection 183UA(1) (definition of special forfeited goods)

The current definition of 'special forfeited goods' in subsection 183UA(1) means forfeited goods that are referred to in paragraph 229(1)(b), (e) or (n). Section 229 identifies the types of goods that shall be forfeited to the Crown. Forfeited goods include all prohibited imports (listed at paragraph (b)).

This item repeals the definition of 'special forfeited goods' in subsection 183UA(1) and replaces it with an expanded definition that includes the scope of the existing definition plus goods that are smuggled, unlawfully imported, exported, or conveyed that are narcotic goods or consist of a border controlled precursor .

Narcotic goods are defined in section 4 of the Customs Act as goods that consist of a narcotic substance, and a narcotic substance is defined as a border controlled drug or a border controlled plant.

This amendment will allow all unlawfully imported border controlled drugs, plants and precursors to be treated as special forfeited goods in the Customs Act.

This will enable Customs and Border Protection officers to seize without a warrant border controlled drugs, plants and precursors at Customs Places, such as designated ports, airports and wharfs (pursuant to section 203B).

It will also enable Customs and Border Protection officers to seize without a warrant all unlawfully imported narcotic substances or border controlled drugs and plants (not only those listed as prohibited imports) outside a Customs Place, such as a remote beach (pursuant to section 203C).

Item 15 - Subsection 183UA(1) (paragraph (b) of the definition of special forfeited goods)

The following amendment will only be required if the Customs Amendment (Military End-Use) Bill 2011 which is currently before Parliament commences before the commencement of this Bill.

The Customs Amendment (Military End-Use) Bill 2011, which is currently before Parliament seeks to amend the definition of special forfeited goods to extend the scope of the existing definition to reference a new paragraph (as a listing of a forfeited good) listed in section 229 of the Customs Act.

This item would replicate the amendment in the Customs Amendment (Military End-Use) Bill 2011 to ensure the amendment in that Bill continues to apply following the commencement of this Schedule. This amendment would have no substantive impact on the application of the amendments proposed in this Schedule.