Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)General outline and financial impact
General outline
The Customs Act 1901 (Customs Act) includes serious drug offences, such as drug importation offences. The maximum penalties for those offences vary depending on the quantity of drug involved. Offences involving 'trafficable quantities' of prescribed drugs carry penalties of up to 25 years imprisonment, whereas those involving 'commercial quantities' of prescribed drugs carry penalties of up to life imprisonment. The different penalty levels reflect the relative seriousness of, for example, importing a commercial quantity of a drug compared to importing a smaller trafficable quantity.
The drugs to which the offences apply, and the corresponding quantities, are set out in schedule VI to the Customs Act. That schedule does not prescribe commercial quantities for all of the listed drugs.
Recently, there have been instances where large quantities of drugs for which the Customs Act does not prescribe a commercial quantity have been imported into Australia. In the absence of a prescribed commercial quantity, it has not been possible for judges to consider imposing life imprisonment penalties and they have been limited to the maximum penalty for offences involving trafficable quantities, being 25 years imprisonment. In recent cases involving the importation of large quantities of methylamphetamine, courts have commented on the unavailability of the full spectrum of penalties in the determination of appropriate sentences.
The Bill will prescribe commercial quantities for all those drugs in Schedule VI of the Customs Act for which a commercial quantity is not currently prescribed. This will ensure that judges have appropriate sentencing discretion in relation to drug importation offences involving large quantities of drugs.
Financial impact
There is no financial impact flowing directly from the offence provisions in this Bill.
Notes on clauses
This is a formal clause which provides for the citation of the Bill.
This clause sets out when the Bill commences. The Bill will commence on the day the Bill receives Royal Assent.
This clause makes it clear that Schedules to the Bill will amend the Acts set out in those Schedules in accordance with the provisions set out in each Schedule.
Schedule 1 - Amendment of the Customs Act 1901
The Customs Act 1901 (Customs Act) provides for serious penalties for illicit dealings (such as importing or exporting) in 'narcotic substances' across the Australian border. The penalties for these offences vary according to the quantity of the narcotic substance involved: generally, a commercial quantity attracts up to life imprisonment, and a trafficable quantity attracts up to 25 years imprisonment.
Commercial and trafficable quantities for narcotic substances can be set out in either Schedule VI of the Customs Act, or in the Customs (Narcotic Substances) Regulations. The Bill will prescribe commercial quantities for all those narcotic substances in Schedule VI for which a commercial quantity is not currently prescribed. It is not possible to provide for the new commercial quantities by regulation because the substances in question are dealt with in the schedule to the Customs Act.
In setting the commercial quantity of narcotic substance that is suitable for an offence which may attract a penalty of life imprisonment, regard has been given to the 'commercial quantities' prescribed in the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 and relevant quantities prescribed in State drug legislation.
This clause is necessary to ensure that the amendments to Schedule VI have prospective application by applying only to those offences committed after the commencement of this Schedule.