House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)

General outline and financial impact

General Outline

This Bill proposes to insert new serious drug offences into Chapter 9 of the Criminal Code entitled 'Dangers to the Community'. Consistent with the general approach of the Criminal Code project, the amendments will assemble these very serious offences in the central statute rather than the Customs Act 1901 (Customs Act) which is primarily a regulatory statute. The inclusion of these offences will substantially complete Australian Government implementation of the Model Criminal Code, which was developed by State, Territory and Australian Governments during the last decade to achieve greater national consistency in the criminal law.

The import and export offences in proposed Division 307 are based on the existing offences in the Customs Act. The other offences are based on Chapter 6 of the Model Criminal Code. Chapter 6 was developed in 1998 by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC) after nationwide consultation. It takes into account the 1980 report of the Hon Mr Justice E S Williams who called for greater consistency in Australia's drug laws. The proposed new offences are principally targeted at organised illicit drug traders and commercially motivated drug crime. They remove legal loopholes being exploited by drug traders who structure the illegal trafficking of serious drugs in a way which avoids the full consequence of their conduct under the existing law. In particular, these new offences provide an avenue for accumulating the amount of drugs traded on multiple occasions within a specified period into a single offence to avoid traffickers escaping liability by manipulating the amount of drugs traded on each particular occasion.

Chapter 6 of the Model Criminal Code has been modified in some respects to take into account developments since 1998. The most significant of these is the increased trade in manufactured drugs and chemical substances used to make those drugs - precursors. Whilst the model offences focussed primarily on sale of precursors, the Bill also contains serious offences targeting those who manufacture or possess precursors for the purpose of manufacturing illicit drugs. To increase enforceability of the precursor offences, the Bill also includes a presumption of intent to manufacture an illicit drug where a person is illegally selling, manufacturing or possessing prescribed precursors.

The Bill includes additional offences that target those who endanger children during the drug manufacturing process. The new offences include a federal drug endangerment offence (based on the general endangerment offence in Chapter 5 of the Model Criminal Code) and new aggravated offences which increase penalties for those who engage in manufacturing where there is a danger to children.

The 1998 MCCOC report took an unconventional approach by not incorporating a presumption of commercial purpose (trafficking) where a threshold quantity of illicit drug is involved. To address concerns raised by law enforcement agencies during consultation on the model offences, the Standing Committee of Attorneys-General decided that it was preferable to incorporate a presumption of this kind. Accordingly, presumptions of commercial purpose are incorporated into the offences in the Bill.

The Bill will preserve the existing regulatory offences involving controlled substances, such as the scheme in place for the issuing licenses for the manufacture of controlled substances under the Narcotic Drugs Act 1967. Existing State and Territory regulatory schemes will continue to operate, and it will be a defence to the offences in the Bill if the relevant conduct is justified or excused under a law of the Commonwealth or a State or Territory.

Overlapping State and Territory drug offences will also continue to operate alongside the offences in Part 9.1 of the Criminal Code. This approach is consistent with the approach taken in other areas of criminal law, such as terrorism, fraud, computer crime, money laundering and sexual servitude. It is intended that drug offences will continue to be investigated in accordance with the established division of responsibility between federal and State and Territory law enforcement agencies. The Bill preserves the existing powers of law enforcement officers, including Customs officials and the Australian Federal Police, in relation to serious drugs offences.

Current federal drug offences employ a variety of terms to refer to illicit drugs. The Bill proposes to streamline these terms and employ consistent terminology for referring the illicit substances caught by its provisions. For offences relating to import and export the terms 'border controlled drugs', 'border controlled plants' and 'border controlled precursors' are used. For the other offences with broader domestic application the terms 'controlled drugs', 'controlled plants' and 'controlled precursors' are used. The specific substances that will be covered by each of these categories, together with the appropriate quantities, are set out in proposed Division 314.

In April 2002 at the Leaders' Summit on Terrorism and Multi-jurisdictional Crime all jurisdictions reaffirmed their commitment to implement Chapter 6 of the Model Criminal Code. Victoria, Tasmania and the ACT have implemented many of the provisions. It is hoped that the enactment of the proposed federal offences will encourage the remaining jurisdictions to implement the model offences.

The Bill also makes a number of minor amendments to some existing offences in the Criminal Code relating to children in armed conflict, and makes some amendments to other legislation.

Schedule 2 gives effect to an obligation under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. The Optional Protocol requires state parties to it to take all measures necessary to criminalise the recruitment or use in hostilities by armed groups not part of the State of persons under the age of 18 years. The Bill will comply with this obligation by amending the Criminal Code to provide that these activities constitute federal offences, punishable by imprisonment for up to 17 years.

Schedule 3 amends the Proceeds of Crime Act 2002 to enable a court to make a restraining order or forfeiture order over a bankrupt's property where the property has vested in the Official Trustee or a registered trustee under the Bankruptcy Act 1996.

Schedule 4 amends the Australian Federal Police Act 1979 to insert two specific functions and create an exception to the secrecy provision in that Act. The specific functions will clarify that the functions of the Australian Federal Police (AFP) extend to providing assistance to, and cooperating with, Australian and foreign law enforcement agencies, intelligence or security agencies and government regulatory agencies, and establishing, developing and monitoring peace, stability and security in other countries. The exception to the secrecy provision will clarify that the AFP can disclose personal information about a person with that person's consent.

Schedule 5 amends the Mutual Assistance in Business Regulation Act 1992 to facilitate transfer of responsibility from the Attorney-General to the Treasurer for consideration of requests received from foreign regulators for information, documents or evidence.

Schedule 6 amends the Financial Transaction Reports Act 1988 to clarify that cash dealers are not required to obtain multiple identification references from a person who is a signatory to different accounts with the cash dealer.

Schedule 7 repeals the Defence (Transitional Provisions) Act 1950 which no longer has any legal effect.

Schedule 8 makes a technical amendment to a new detention power recently added to the Customs Act to allow Customs officers to detain people who are on bail and are caught trying to leave Australia in breach of their bail conditions. This amendment will put beyond doubt that the detention power applies where the relevant bail condition is worded to prohibit the person 'from approaching an international departure point'.

Schedule 9 exempts AUSTRAC from the operation of the Freedom of Information Act 1982 (FOI Act) in relation to documents concerning information communicated to it under section 16 of the Financial Transaction Reports Act 1988. It also makes minor technical corrections to two items in Part II of Schedule 2 to the FOI Act.

Financial impact

There is no financial impact flowing directly from the offence provisions in this Bill.

Abbreviations used in the Explanatory Memorandum

Notes on clauses

Clause 1 - Short Title

This is a formal clause which provides for the citation of the Bill.

Clause 2 - Commencement

This clause sets out when the various parts of the Bill commence.

Sections 1-3 of the Bill (the short title, the commencement and the schedules provision) will commence on the day the Bill receives Royal Assent.

Part 1 of Schedule 1 of the Bill inserts new serious drugs offences into the Criminal Code, and will commence 28 days after Royal Assent. The purpose of delayed commencement is to allow time for those affected to become familiar with the scope of the new offences.

Part 2 of Schedule 1 of the Bill, which sets out necessary consequential amendments, will commence at the same time as Part 1 of Schedule 1 of the Bill.

Schedule 2 of the Bill, which inserts new offences into the Criminal Code for the use of children in armed conflict, will commence 28 days after the Bill receives Royal Assent, or the day the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict enters into force in Australia, whichever day is the later. The Minister for Foreign Affairs must make an announcement by notice in the Gazette on the day the Optional Protocol enters into force in Australia. If the Optional Protocol does not come into force in Australia, the provisions in Schedule 2 of the Bill will not commence.

Schedule 3 of the Bill, which amends the POC Act to enable a court to make a restraining order or forfeiture order under the POC Act over a bankrupt's property where the property has vested in the Official Trustee or a registered trustee under the Bankruptcy Act, will commence on the day the Bill receives Royal Assent.

Schedules 4 to 8 of the Bill, which contain minor amendments to other legislation, will commence on the day the Bill receives Royal Assent.

Part 1 of Schedule 9 of the Bill, which exempts documents received by AUSTRAC under section 16 of the FTR Act from disclosure under the FOI Act, will commence on the day the Bill receives Royal Assent.

Part 2 of Schedule 9 of the Bill, which contains minor technical amendments to the FOI Act, will commence on the day after the Bill receives Royal Assent.

Clause 3

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 - Serious Drug Offences

PART 1 - SERIOUS DRUG OFFENCES

Item 1 Part 9.1 of the Criminal Code

The offences in the Criminal Code Act 1995 are contained in a Schedule referred to as the Criminal Code. This item inserts proposed Part 9.1 into Chapter 9 of the Criminal Code, which contains offences that target conduct considered to be a danger to the community. Proposed Part 9.1 will contain the federal serious drug offences.

Updating and moving existing serious drugs offences into the Criminal Code is part of an ongoing process of placing all the Commonwealth's serious offences in the Criminal Code. The policy of having serious offences together in this way is not only a feature of the Commonwealth Criminal Code, but also the legislation of most jurisdictions throughout the world. It is also a feature of the Model Criminal Code which was developed by the federal, State and Territory Governments.

Proposed Division 300 - Preliminary

Proposed section 300.1 Purpose

Proposed section 300.1 describes the intended purpose of proposed Part 9.1 of the Criminal Code, which is to deal with the trafficking, manufacture and cultivation of drugs that are the subject of great local and international concern.

Proposed Part 9.1 of the Criminal Code will give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which Australia is a party. The TINDAPS Act also gives effect to that Convention, and it is intended that the TINDAPS Act be repealed as soon as the tables of controlled substances and border controlled substances in proposed Division 314 are expanded to cover all substances currently covered by the TINDAPS Act. The offences in the TINDAPS Act will then become redundant.

Proposed section 300.2 Definitions

Proposed section 300.2 contains definitions of terms used in proposed Part 9.1 of the Criminal Code.

Aggravated offence is defined with reference to the definition provided for that term by proposed section 310.4. In that proposed section, an offence will be an aggravated offence if the commission of the offence gives rise to a danger of harm to an individual who is under 14 years of age, and that danger of harm arises because the individual is exposed to the manufacture of a controlled drug or a controlled precursor.

Border controlled drug refers to a substance, other than a growing plant, that is covered by the offences relating to drug importation and exportation. Border controlled drugs are listed in proposed section 314.4. Proposed subsections 301.3(1)(a) and 301.8(1)(a) allow additional border controlled drugs to be prescribed in by interim regulations or by emergency ministerial determination where certain criteria are specified. Growing plants are excluded from the definition of border controlled drugs to avoid overlap with border controlled plants.

Border controlled plant refers to a growing plant that is covered by the offences relating to drug importation and exportation. Border controlled plants are listed in proposed section 314.5. Proposed subsections 301.391)(b) and 301.8(1)(b) allow additional border controlled plants to be prescribed by interim regulations or by emergency ministerial determination where certain criteria are specified.

Border controlled precursor refers to a substance that is covered by the offences relating to precursor importation and importation exportation. Border controlled precursors are listed in proposed section 314.6. Proposed subsections 301.4(1) and 301.9(1) allow additional border controlled precursors to be prescribed by interim regulations or by emergency ministerial determination where certain criteria are specified.

Child means an individual who is under 18 years of age.

Commercial quantity is a term used to denote a threshold amount of a controlled drug, controlled precursor, controlled plant, border controlled drug, border controlled precursor or border controlled plant. An offence in proposed Part 9.1 that involves a commercial quantity of a controlled substance or border controlled substance will attract the top-threshold maximum penalty (life imprisonment for offences involving drugs and plants and 25 years imprisonment for offences involving precursors). Commercial quantities are prescribed for a range of controlled substances and border controlled substances in proposed Division 314. Proposed sections 301.5 and 301.10 allow additional commercial quantities to be prescribed by interim regulations or an emergency ministerial determination where certain criteria are specified.

Commercial quantities of controlled drugs and border controlled drugs may be prescribed as either a pure or dilute quantity, or both (see discussion of proposed Division 312 below).

Conceal is defined inclusively in the Bill to mean to conceal or disguise, and includes to hide or remove from observation, to cover-up or keep from sight and failing to disclose, the nature, source, location or movement of a thing, the rights of any person with respect to a thing or the identity of an owner of a thing. MCCOC developed this definition after reviewing experiences with many different cases around Australia under different laws.

Controlled drug refers a substance, other than a growing plant, that is covered by the drug offences other than those relating to drug importation and exportation. Controlled drugs are listed in proposed section 314.1. Proposed subsections 301.1(1)(a) and 301.6(1)(a) allow additional controlled drugs to be prescribed by interim regulations or by emergency ministerial determination where certain criteria are specified. Growing plants are excluded from the definition of controlled drugs to avoid overlap with controlled plants.

The term 'controlled drug' was recommended by MCCOC because descriptive terms such as 'narcotic drug' (used in the Customs Act) no longer accurately reflect the variety of substances that would be appropriately captured by the drug trafficking provisions. Not all controlled drugs are narcotic in character.

Controlled plant refers to a growing plant that is covered by the plant offences other than those relating to importation and exportation. Controlled plants are listed in proposed section 314.2. Proposed subsections 301.1(1)(b) and 301.6(1)(b) allow additional controlled plants to be prescribed by interim regulations or by emergency ministerial determination where certain criteria are specified.

Controlled precursor refers to a substance that is covered by the precursor offences other than those relating to precursor importation and importation. Controlled precursors are listed in proposed section 314.3. Proposed subsections 301.2(1) and 301.7(1) allow additional controlled precursors to be prescribed by interim regulations or by emergency ministerial determination where certain criteria are specified.

Cultivate is defined with reference to the definition provided for that term in proposed subsection 303.1(1). In that proposed subsection, cultivate is defined inclusively to mean:

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planting a seed, seedling or cutting;

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transplanting a plant;

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nurturing, tending or growing a plant;

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guarding or concealing a plant, including for the purpose of protecting the plant against interference or discovery by humans or natural predators;

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harvesting a plant, which includes picking any part of a plant, or extracting or separating any resin or other substance from a plant.

Cultivates a plant is defined with reference to the definition provided for that term in proposed subsection 303.1(2). That proposed subsection provides that a person cultivates a plant if that person:

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engages in the cultivation of that plant;

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exercises some control or discretion over the cultivation of that plant; or

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provides finance to fund the cultivation of that plant.

This definition specifically extends liability beyond those who directly engage in the activity of cultivation. Although such persons may be caught by the Chapter 2 ancillary liability provisions, it is more appropriate to attribute primary liability to those who have distanced themselves from the actual cultivation but nevertheless have a central or organising role in it.

Cultivates a plant for a commercial purpose is defined with reference to the definition provided for that term by proposed section 303.3. That proposed section provides that a person cultivates a plant for a commercial purpose if that person cultivates a plant (as defined in proposed subsection 303.1(2)), and does so with one of the following commercial fault elements:

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the intention of selling that plant or any part of that plant, and/or any of that plant's products; or

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the belief that another person intends to sell that plant or any part of that plant, and/or any of that plant's products.

Export is to be interpreted according to the ordinary meaning of the term, and specifically includes taking something from or out of Australia.

Import is to be interpreted according to the ordinary meaning of the term, and specifically includes bringing something into Australia.

Manufacture is defined with reference to the definition provided for that term by proposed subsection 305.1(1). That proposed subsection provides an inclusive definition of manufacture to mean any process, other than the cultivation of a plant, by which a controlled drug or controlled precursor is produced. Although not limited to the examples provided in the proposed subsection, processes that would be regarded as manufacture for the purposes of proposed Part 9.1 are processes of extracting or refining a substance, and processes whereby one substance is transformed into another substance. Activities such as the preparation or packaging of drugs for sale are included within the definition of trafficking because of their connection with sale of controlled drugs.

This definition of manufacture is drawn from the terms of the Single Convention on Narcotic Drugs (1961), and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988).

Manufactures a substance is defined with reference to the definition provided for that term in proposed subsection 305.1(2). In that proposed subsection, a person manufactures a substance if that person:

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engages in the manufacture of that substance; or

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exercises control or discretion over the manufacture of that substance; or

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provides finance to fund the manufacture of that substance.

This definition specifically extends liability beyond those who directly engage in the activity of manufacturing. Although such persons may be caught by the ancillary criminal liability provisions in Chapter 2 of the Criminal Code, it is more appropriate to attribute primary liability to those who have distanced themselves from the actual manufacturing but nevertheless have a central or organising role in it.

Manufactures a substance for a commercial purpose is defined with reference to the definition provided for that term by proposed section 305.2. In that section, a person manufactures a substance for a commercial purpose if the person manufactures that substance and does so with one of the following commercial fault elements:

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with the intention of selling that substance, or any part of that substance; or

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believing that another person intends to sell that substance, or any part of that substance.

Marketable quantity is a term used to denote a threshold amount of a controlled drug, controlled precursor, controlled plant, border controlled drug, border controlled precursor or border controlled plant. An offence in proposed Part 9.1 that involves a marketable quantity of a controlled substance or border controlled substance will attract the middle-threshold maximum penalty (25 years imprisonment for offences involving drugs and plants and 15 years imprisonment for offences involving precursors). Marketable quantities are prescribed for a range of controlled substances and border controlled substances in proposed Division 314. Proposed sections 301.5 and 301.10 allow additional marketable quantities to be prescribed by interim regulations or an emergency ministerial determination where certain criteria are specified.

Marketable quantities of controlled drugs and border controlled drugs may be prescribed as either a pure or dilute quantity, or both (see discussion of proposed Division 312 below).

Possession generally means that a person has present physical custody or control over that thing, or has the thing in such a place that it gives them the right, power or ability to take that thing into custody. Examples of when a person would be in possession of a thing for the purposes of proposed Part 9.1 of the Criminal Code include cases where that person:

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holds, keeps or maintains that thing, either with or without rights of ownership;

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receives or obtains present physical custody of that thing;

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has some degree of control over the disposition of that thing, whether or not that thing is within that person's custody; or

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has sole or joint possession of that thing.

Pre-traffics is defined with reference to proposed section 306.1. The term pre-traffics is used in the context of the controlled precursor offences in proposed Division 306 (see commentary on proposed section 306.1, below). The term pre-trafficking reflects that the offences involving controlled precursors are preparatory to the actual trafficking of a controlled drug.

Procures an individual to pre-traffic is defined with reference to the meaning given to that term by proposed section 309.9 (see commentary on proposed section 309.9, below).

Procures an individual to traffic is defined by proposed section 309.6 (see commentary on proposed section 309.6, below).

Product of a plant is defined with reference to the definition provided for that term by proposed section 303.2. That section provides an inclusive definition of product of a plant, and although not limited to the things expressly mentioned in that section, the following constitute product of a plant for the purposes of proposed Part 9.1 of the Criminal Code:

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a seed of a plant;

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a part of a plant, whether alive or dead; or

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a substance that has been derived and/or separated from a plant.

Requisite fraction is defined with reference to the definition provided for that term by proposed subsection 312.2(3). That proposed subsection provides that a requisite fraction is:

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for a trafficable quantity of a controlled drug or controlled plant, the actual quantity of that controlled drug or plant, whichever is applicable, divided by the smallest trafficable quantity of that controlled drug or plant (as applicable); or

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for a marketable quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, the actual quantity of the drug, plant or precursor, whichever is applicable, divided by the smallest marketable quantity of that drug, plant or precursor (as applicable); or

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for a commercial quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, the actual quantity of the drug, plant or precursor, whichever is applicable, divided by the smallest commercial quantity of the drug, plant or precursor (as applicable).

Requisite fractions are relevant when working out quantities where different kinds of drugs, plants or precursors are involved in a prosecution under a particular offence, and the prosecution seeks to rely on the aggregation provisions in proposed Division 311.

Sell is defined inclusively in the Bill, and is best described by way of example. To sell a thing includes to dispose, or to agree to dispose, of the thing to a purchaser for a price, or otherwise exchange the thing for something else. The examples provided in proposed section 300.2 explicitly include barter or exchange, and an agreement to sell, within the definition of sell for the purposes of proposed Part 9.1 of the Criminal Code.

Supply is defined inclusively in the Bill and will retain its ordinary meaning. Under this definition, there is no requirement for a sale to take place for there to be a supply and an agreement to supply is sufficient to constitute supply for the purposes of proposed Part 9.1 of the Criminal Code. This term is relevant to the trafficking offences and also some of the offences involving children.

Taking is defined to mean taking the substance or plant, or a product of the plant, into the body. This definition is designed to capture a wide range of activities, including absorbing through the skin, inhaling, smoking, injecting or ingesting.

Trafficable quantity is a term used to denote the threshold amount of a controlled drug or controlled plant which gives rise to a presumption of commercial intention. Trafficable quantities are prescribed for a range of controlled drugs and controlled plants in proposed Division 314. Proposed sections 301.5 and 301.10 allow additional trafficable quantities to be prescribed by interim regulations or an emergency ministerial determination where certain criteria are specified.

Trafficable quantities of controlled drugs may be prescribed as either a pure or dilute quantity, or both (see discussion of proposed Division 312 below).

Traffics is defined by proposed section 302.1 (see commentary on proposed section 302.1, below).

Transport is defined to include deliver. It is envisaged that 'transport' would retain its ordinary meaning and hence include the act of carrying or conveying a thing from one place to another.

Proposed section 300.3 Geographical jurisdiction

Part 2.7 of the Criminal Code provides general jurisdictional provisions, including provision for extraterritorial application of offences in the Criminal Code. Part 2.7 also provides for specific categories of extended geographical jurisdiction (see sections 15.1 to 15.4).

Proposed section 300.3 states that the extended jurisdiction provided for in section 15.2 of the Criminal Code (Category B jurisdiction) applies to all of the serious drugs offences proposed in this Bill, that is, all offences in proposed Part 9.1 of the Criminal Code.

Category B jurisdiction enables an offence to operate:

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when the conduct constituting the alleged offence occurs wholly or partly either in Australia, or on board an Australian aircraft or an Australian ship; or

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when the conduct constituting the alleged offence occurs wholly outside Australia and a result, whether or not the complete result, of that conduct occurs either in Australia, or on board an Australian aircraft or an Australian ship; or

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when the conduct constituting the alleged offence occurs wholly outside Australia and the defendant is an Australian citizen, an Australian resident or a body corporate incorporated under an Australian law, and there is a corresponding offence in the law of the local jurisdiction (being the jurisdiction in which the offence was committed); or

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when the conduct constituting an alleged ancillary offence occurs wholly outside Australia, and the conduct constituting the primary offence to which that alleged ancillary offence relates occurs, or is intended to occur, wholly or partly either in Australia or on board an Australian aircraft or ship.

Although Category B jurisdiction is broad, its operation is limited to capturing the conduct of those who are Australian citizens or residents at the time of the offence. The application of Category B jurisdiction would mean that, regardless of where the conduct constituting the offence occurs, if the person engaging in that conduct is an Australian citizen or resident, that person would be able to be prosecuted in Australia provided there is a corresponding offence under the law of the jurisdiction where the offence was committed. The extension of jurisdiction in this way is of particular importance to the proposed trafficking and import-export offences.

Proposed section 300.4 Concurrent operation intended

The purpose of proposed subsection 300.4(1) is to ensure that State and Territory laws that create overlapping offences, or that regulate activities in relation to controlled substances and border controlled substances, will continue to operate alongside proposed Part 9.1. This approach of allowing overlapping federal, State and Territory offences to operate concurrently is consistent with Parliament's approach with other serious crimes, such as terrorism, serious harm, fraud, money laundering and sexual servitude offences.

Subsection 4C(2) of the Crimes Act protects defendants from double jeopardy by preventing multiple penalties being imposed for substantially the same conduct.

Proposed section 300.5 Particular identity of drugs, plants and precursors

Proposed section 300.5 clarifies that where a defendant is prosecuted for an offence under proposed Part 9.1 of the Criminal Code, if the elements of that offence require the prosecution to prove that the defendant knew, or was reckless as to whether, a substance or plant was a controlled substance or border controlled substance, it will not be necessary for the prosecution to prove that the defendant knew, or was reckless as to, the particular identity of the controlled substance or border controlled substance. For example, in a case involving importation of heroin it would be sufficient if the defendant knew or was reckless as to whether the white powder they were dealing in was a border controlled drug - it is not necessary to prove that the defendant knew, or was reckless as to whether, the substance was heroin.

Proposed Division 301 - Listing additional drugs, plants and precursors

Controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants and border controlled precursors are the substances covered by the offences in proposed Part 9.1. The substances falling within each of those categories, and their threshold quantities, are listed in proposed Division 314. Additional substances and threshold quantities may be prescribed by either interim regulations (with a 12-month lifespan) or emergency determinations (ministerial determinations with a 28-day lifespan). The purpose of proposed Division 301 is to set out the circumstances in which interim regulations and emergency determinations can be made.

Different criteria apply to the making of each of these instruments, which are designed for urgent cases or as an interim measure pending full consideration by appropriately qualified persons and potential amendment to proposed Division 314. The interim regulations and emergency ministerial determinations will be subject to a level of Parliamentary scrutiny as they must be tabled in Parliament and are subject to Parliamentary disallowance processes. As interim regulations and emergency ministerial determinations have a limited lifespan, any long-term additions to the lists of controlled substances, border controlled substances or threshold quantities will need to be made through amendment to proposed Division 314.

Proposed Subdivision A - Interim regulations

This proposed subdivision sets out the regulation-making powers for the interim regulations.

Interim regulations are designed to cater for the situation where there are reasons to justify the temporary prescription of a substance (for up to a year) pending full consideration by experts and the provision of expert advice to the Minister.

Recent events, culminating in the Customs Amendment Act 2004, have highlighted the need for threshold quantities to be capable of being prescribed interim regulations. This includes threshold quantities being prescribed for: new substances being added by interim regulations; and for any substances that are already prescribed in proposed Division 314 but do not have quantities prescribed.

Proposed section 301.1 Interim regulations - controlled drugs and controlled plants

Proposed subsection 301.1(1) contains the interim regulation-making power to prescribe substances as controlled drugs and controlled plants for the purposes of the proposed Part 9.1 offences. The Governor-General may only make the interim regulation under this power if all the conditions set out in proposed subsection (2) are met.

Proposed subsection 301.1(2) sets out the conditions for the making of interim regulations. All of these conditions must be satisfied.

Proposed paragraph (a) says that the Minister must be satisfied that taking the substance or plant concerned would (i) create a substantial risk of death or serious harm; or (ii) would have a physical or mental effect substantially similar to that caused by taking a substance or plant already listed or described in proposed section 314.1 or 314.2. Serious harm is defined in the Dictionary to the Criminal Code. Taking is defined in proposed section 300.2 to mean taking the substance or plant, or a product of the plant, into the body. This definition is designed to capture a wide range of activities, including inhaling, smoking, injecting or ingesting.

Proposed paragraph (b) says that the Minister must be satisfied that there is substantial risk that the substance or plant will be taken without appropriate medical supervision - that is, in circumstances where the substance is amenable to abuse.

Proposed subsection 301.1(3) prevents an interim regulation from having a lifespan over one year. If the substance or plant is to remain prescribed beyond that time it will need to be added to the list in proposed Division 314 through legislative amendment.

Proposed section 301.2 Interim regulations - controlled precursors

This proposed subsection allows interim regulations to prescribe substances as controlled precursors. The Governor-General may only exercise this power if all the condition set out in proposed subsection (2) is met.

The condition in proposed subsection 301.2(2) is that the Minister must be satisfied that there is a substantial risk that the substance will be used to unlawfully manufacture a controlled drug. The manufacture 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 condition contains the necessary nexus to illicit drug manufacture (which is also used as a major indicator of criminality in the context of the precursor offences in proposed Part 9.1).

Proposed subsection 301.2(3) prevents the interim regulation from having a lifespan over one year. If the precursor is to remain prescribed beyond that time it will need to be added to the list in proposed Division 314 through legislative amendment.

Proposed section 301.3 Interim regulations - border controlled drugs and border controlled plants

Proposed subsection 301.3(1) allows interim regulations to prescribe substances as border controlled drugs and border controlled plants. The Governor-General may only exercise this power if all the conditions set out in proposed subsection (2) are met.

Proposed subsection 301.3(2) sets out the conditions for the making of interim regulations. All of these conditions must be satisfied.

Proposed paragraph (a) says that the Minister must be satisfied that taking the substance or plant concerned would (i) create a substantial risk of death or serious harm; or (ii) would have a physical or mental effect substantially similar to that caused by taking a substance or plant already listed or described in proposed section 314.1 or 314.2. Serious harm is defined in the Dictionary to the Criminal Code. Taking is defined in proposed section 300.2 to mean taking the substance or plant, or a product of the plant, into the body. This definition is designed to capture a wide range of activities, including inhaling, smoking, injecting or ingesting.

Proposed paragraph (b) says that the Minister must be satisfied that there is substantial risk that the substance or plant will be taken without appropriate medical supervision - that is, in circumstances where the substance is amenable to abuse.

Proposed paragraph (c) prevents the interim regulation from having a lifespan over one year. If the substance or plant is to remain prescribed beyond that time it will need to be added to the list in proposed Division 314 through legislative amendment.

Proposed section 301.4 Interim regulations - border controlled precursors

This proposed subsection allows interim regulations to prescribe substances as border controlled precursors. The Governor-General may only exercise this power if the condition set out in proposed subsection (2) are met.

The condition in proposed subsection 301.4(2) is that the Minister must be satisfied that there is a substantial risk that the substance will be used to unlawfully manufacture a controlled drug. The manufacture 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 condition contains the necessary nexus to illicit drug manufacture (which is also used as a major indicator of criminality in the context of the precursor offences in proposed Part 9.1).

Proposed paragraph (a) says that the Minister must be satisfied that there is a substantial risk that the substance will be used to unlawfully manufacture a controlled drug. The manufacture 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 condition contains the necessary nexus to illicit drug manufacture (which is also used as a major indicator of criminality in the context of the precursor offences in proposed Part 9.1).

Proposed paragraph (b) prevents the interim regulation from having a lifespan over one year.

Proposed section 301.5 Interim regulations - commercial, marketable and trafficable quantities

Proposed subsections 301.5(1) and 301.5(4) allow interim regulations to prescribe commercial, marketable and trafficable quantities for controlled drugs and controlled plants, and commercial and marketable quantities for controlled precursors, border controlled drugs, border controlled plants and border controlled precursors. This is a power that exists alongside the broad powers to prescribe new controlled substances and border controlled substances in interim regulations..

Proposed subsections (2) and (5) provide that interim regulations prescribing threshold quantities may only have a life of up to one year.

Proposed subsections (3) and (6) ensure that interim regulations can prescribe a threshold quantity for a particular substance that is listed in proposed Division 314 as a controlled substance or border controlled substance in circumstances where proposed Division 314 has not already prescribed that threshold quantity for that particular substance. For example, proposed section 314.5 provides that 'any plant of the genus Lophophora' is a border controlled plant, but does not specify any marketable or commercial quantity for that plant. The consequence of this is that the offences involving marketable and commercial quantities of border controlled plants will not be able to apply to that particular controlled plant. Proposed subsections (3) and (6) make clear that interim regulations could later prescribe marketable and commercial quantities for that border controlled plant as those quantities have not already been prescribed in the Act.

Proposed Subdivision B - Emergency determinations

The purpose of the emergency determination mechanism is to allow new substances to be prescribed as controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants or border controlled precursors for the purposes of proposed Part 9.1 of the Criminal Code. Emergency determinations can only be made where certain criteria are met and for a finite timeframe, pending further analysis as to whether those substances should have that classification on an indefinite basis. Recent events, culminating in the Customs Amendment Act 2004, have highlighted the need for the emergency scheduling mechanism to also allow threshold quantities to be prescribed both for the new substances being added and for any substances that are already prescribed in the interim regulations but do not have quantities prescribed.

Emergency determinations will be legislative instruments and fall under the regime established by the LI Act.

Proposed section 301.6 Emergency determinations - controlled drugs and controlled plants

Proposed subsection 301.6(1) gives the relevant Minister the power to make emergency determinations listing substances as controlled drugs and controlled plants for the purposes of proposed Part 9.1 of the Criminal Code.

Proposed subsection 301.6(2) lists the conditions about which the Minister must be satisfied in order to make an emergency determination under proposed subsection 301.6(1).

Proposed paragraph (a) is the same as the condition in proposed paragraph 301.1(2)(a) for the making of an interim regulation prescribing controlled drugs or controlled plants.

Proposed paragraph (b) builds on the condition required in proposed paragraph 301.1(2)(b) for the making of an interim regulation prescribing controlled drugs or controlled plants. For the emergency determination, the additional element is that there must be an imminent and substantial risk that the substance or the plant will be taken without appropriate medical supervision. The additional element of imminence reflects the fact that emergency determinations are designed to target only the most urgent cases where swift action is required.

Proposed subparagraph 301.6(2)(b)(ii) contains an alternative criterion that the Minister is satisfied that there is an imminent and substantial risk that the substance will be imported and made available for taking without medical supervision. This is intended to cover situations where there is an imminent and substantial risk that the substance or the plant will be introduced into the Australian community and made available in circumstances beyond those considered appropriate for medical or therapeutic purposes - this is, in circumstances where the substance or plant will be amenable to abuse.

Proposed section 301.7 Emergency determinations - controlled precursors

Proposed subsection 301.7(1) gives the Minister the power to make emergency determinations listing substances as controlled precursors for the purposes of proposed Part 9.1 of the Criminal Code.

Proposed subsection 301.7(2) lists the conditions about which the Minister must be satisfied in order to make an emergency determination under proposed subsection 301.7(1).

Proposed paragraph (a) builds on the condition required in proposed subsection 301.2(2) for the making of an interim regulation prescribing controlled precursors. For the emergency determination, the additional element is that there must be an imminent and substantial risk that the substance will be used to unlawfully manufacture a controlled drug. The additional element of imminence reflects the fact that emergency determinations are designed to target only the most urgent cases where swift action is required.

Proposed paragraph 301.7(2)(b) contains an alternative criterion that the Minister is satisfied that there is an imminent and substantial risk that the substance will be imported (and therefore introduced to the Australian community) and made available for illicit drug manufacture.

Proposed section 301.8 Emergency determinations - border controlled drugs and border controlled plants

Proposed subsection 301.8(1) gives the relevant Minister the power to make emergency determinations listing substances as border controlled drugs and border controlled plants for the purposes of proposed Part 9.1 of the Criminal Code.

Proposed subsection 301.8(2) lists the conditions about which the Minister must be satisfied in order to make an emergency determination under proposed subsection 301.8(1).

Proposed paragraph (a) is the same as the condition in proposed paragraph 301.3(2)(a) for the making of an interim regulation prescribing border controlled drugs or border controlled plants.

Proposed paragraph (b) builds on the condition required in proposed paragraph 301.3(2)(b) for the making of an interim regulation prescribing border controlled drugs or border controlled plants. For the emergency determination, the additional element is that there must be an imminent and substantial risk that the substance or the plant will be taken without appropriate medical supervision. The element of imminence reflects the fact that emergency determinations are designed to target only the most urgent cases where swift action is required.

Proposed subparagraph 301.8(2)(b)(ii) contains an alternative criterion that the Minister is satisfied that there is an imminent and substantial risk that the substance will be imported and made available for taking without medical supervision. This is intended to cover situations where there is an imminent and substantial risk that the substance or the plant will be introduced into the Australian community and made available in circumstances beyond those considered appropriate for medical or therapeutic purposes - this is, in circumstances where the substance or plant will be amenable to abuse.

Proposed section 301.9 Emergency determinations - border controlled precursors

Proposed subsection 301.9(1) gives the relevant Minister the power to make emergency determinations listing substances as border controlled precursors for the purposes of proposed Part 9.1 of the Criminal Code.

Proposed subsection 301.9(2) lists the conditions about which the Minister must be satisfied in order to make an emergency determination under proposed subsection 301.9(1).

Proposed paragraphs (a) and (b) build on the condition required in proposed subsection 301.4(2) for the making of an interim regulation prescribing border controlled precursors. For the emergency determination, the additional element is that there must be an imminent and substantial risk that the substance will be used to unlawfully manufacture a controlled drug. The element of imminence reflects the fact that emergency determinations are designed to target only the most urgent cases where swift action is required.

Proposed paragraph 301.9(2)(b) contains an alternative criterion that the Minster is satisfied that there is an imminent and substantial risk that the substance will be imported (and therefore introduced to the Australian community) and made available for illicit drug manufacture.

Proposed section 301.10 Emergency determinations - commercial, marketable and trafficable quantities

Proposed subsections 301.10(1) and 301.10(3) allow emergency determinations to prescribe commercial, marketable and trafficable quantities for controlled drugs and controlled plants, and commercial and marketable quantities for controlled precursors, border controlled drugs, border controlled plants and border controlled precursors.

Proposed subsections (2) and (4) ensure that emergency determinations can prescribe a threshold quantity for a particular substance that is listed in proposed Division 314 as a controlled substance or border controlled substance in circumstances where proposed Division 314 has not already prescribed that threshold quantity for that particular substance. For example, proposed section 314.5 provides that 'any plant of the genus Lophophora' is a border controlled plant, but does not specify any marketable or commercial quantity for that plant. The consequence of this is that the offences involving marketable and commercial quantities of border controlled plants will not be able to apply to that particular controlled plant.

Proposed subsections (3) and (6) make clear that an emergency determination could later prescribe marketable and commercial quantities for that border controlled plant as those quantities have not already been prescribed in the Act.

Proposed section 301.11 General rules - period of effect, publication etc.

This section applies generally to emergency determinations made under proposed Subdivision B.

Proposed subsection 301.11(1) says that an emergency determination has effect from the day it is registered (within the meaning of the LI Act) and for up to 28 days from the date of registration. The emergency determination may specify that it has effect for a period less than 28 days.

Proposed subsection 301.11(2) establishes an extension mechanism for emergency determinations. If exceptional circumstances have prevented the making of interim regulations to the same effect as the emergency determination, the Minister may make a further emergency determination extending the period of the original emergency determination by up to 28 days.

The original emergency determination may only be extended once under this mechanism.

Proposed subsection 301.11(3) reserves the use of the emergency determination mechanism for the most urgent cases by preventing more than one emergency determination being made in relation to a particular substance or plant. If the relevant substance is to remain on the list after the 28 day timeframe expires it will need to be prescribed in interim regulations. All other cases should be dealt with under interim regulations provided for in proposed Subdivision A.

Proposed subsection 301.11(4) establishes an additional requirement beyond the minimum standards set out in the LI Act. Under this subsection, the Minister must, on or before the day on which it is registered (a) make a public announcement of the emergency determination, and (b) cause a copy of that announcement to be published on the Internet and in newspapers circulating in each State, the Australian Capital Territory and the Northern Territory. A public announcement of this kind is considered appropriate given that the emergency determination will affect the scope of serious criminal offences.

Proposed subsection 301.11(5) clarifies that the announcement under proposed subsection 301.11(4) is not a legislative instrument.

Proposed section 301.12 General rule - inconsistency with regulations

This provision ensures that an emergency determination made under proposed Subdivision B has no effect to the extent of any inconsistency with an interim regulation made under proposed Subdivision A.

Proposed Division 302 - Trafficking in controlled drugs

The trafficking offences target dealings in controlled drugs. The range of conduct covered by the exhaustive definition of traffics is broad: the trafficking offences are proposed to extend beyond sale to the ancillary activities of transport and delivery, as well as preparatory conduct such as preparation for supply, packaging, and possession with the intention of selling a drug.

There will be three grades of trafficking offence, based on the quantity of controlled drug involved: commercial quantity (attracting a maximum penalty of life imprisonment), marketable quantity (attracting a maximum penalty of 25 years imprisonment), and the general trafficking offence which has no minimum quantity (attracting a maximum penalty of 10 years).

Absolute liability as to quantity

For the two most serious trafficking offences, absolute liability attaches to the circumstance of quantity of controlled drug. This means that the prosecution does not need to prove that the defendant either knew, or was reckless as whether, the quantity involved was a commercial quantity (where the top tier offence is alleged) or a marketable quantity (where the middle tier offence is alleged).

The qualified defence of mistake as to quantity in proposed section 313.4 operates to protect a defendant who mistakenly believed that a lesser quantity of drug was involved. That qualified defence operates where the defendant can prove, on the balance of probabilities, that at the time of the alleged offence he or she mistakenly believed that the quantity of the drug involved was less than the relevant threshold quantity. In those circumstances the trier of fact (judge or jury) may find the defendant not guilty of the alleged offence, and instead find the defendant guilty of a lesser offence. The appropriate lesser offence will depend on the quantity of drug that the defendant mistakenly believed was involved.

For example, in a prosecution for the most serious offence of trafficking a commercial quantity of controlled drugs, if the defendant can prove that he or she mistakenly believed that a marketable quantity was involved, the defendant can instead be found guilty of the lesser offence of trafficking a marketable quantity of controlled drugs (carrying a maximum penalty of 25 years imprisonment rather than life imprisonment). In order for the qualified defence to operate, it is not necessary for the defendant to prove that his or her belief as to quantity was a reasonable belief.

Applying absolute liability to the element of quantity and applying a qualified defence of mistake as to quantity will markedly improve the enforceability of these offences. This approach was recommended by MCCOC in 2003 as a modification to the model offences originally proposed in its 1998 report, and was also endorsed by the Standing Committee of Attorneys-General.

Proposed section 302.1 Meaning of traffics

Proposed section 302.1 provides definitions for 'traffics' and 'preparing a substance for sale'. These definitions form necessary elements of the proposed trafficking offences.

Proposed subsection 302.1(1)

Proposed subsection 302.1(1) outlines when a person 'traffics' in a substance for the purposes of the serious drugs offences in proposed Part 9.1 of the Criminal Code.

The central form of the trafficking offence is sale of a controlled drug: the meaning of 'sell' is defined to include a range of conduct, including an agreement to sell. Commercial purpose - the intention to sell or the belief that another will sell - is an element of the offence that is included in the meaning of 'traffics' for most types of trafficking. However, the commercial element is not included where trafficking is by sale, because it is implicit in the conduct of selling.

Trafficking by preparation for supply, transporting, or guarding or concealing a controlled drug targets individuals who engage in an activity which may be closely related to sale by another. For these kinds of trafficking, the prosecution does not need to show that the other person actually intended to sell the drug. The requirement of belief that another intended to sell can be satisfied even if the accused was mistaken, if the intentions of the other person cannot be ascertained, or if the other person's sale never took place.

Where trafficking is by possession, the person themselves must be shown to have the intention to sell: the more restrictive fault element in this kind of trafficking reflects the more passive and preliminary nature of the conduct of the accused who merely possesses a controlled drug.

For trafficking offences involving a trafficable quantity of a controlled drug, the trafficable quantity presumption applies to assist in proving the element of commercial intent. The operation of the trafficable quantity presumption is explained further in the discussion of proposed section 302.5 below.

Proposed section 302.2 Trafficking commercial quantities of controlled drugs

Proposed Part 9.1 of the Criminal Code provides for three grades of trafficking offences, distinguished by the quantity of controlled drugs involved. Proposed section 302.2 makes it an offence to traffic in a commercial quantity of a controlled drugs, the most serious drug trafficking offence proposed in Part 9.1.

For the purposes of proposed paragraph 302.2(1)(a), a person traffics in a substance if the person engages in any of the forms of trafficking set out in proposed section 302.1. This proposed paragraph contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to traffic in the drug. In addition, all forms of trafficking except trafficking by sale have special fault elements that must accompany the relevant conduct - the commercial purpose. For example, in a case of trafficking by transportation, the prosecution must establish that the defendant intended to transport the substance, as well establishing that the person intended to sell any of the substance or believed that another person intends to sell any of it.

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 302.2(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Commercial quantities will vary depending on the type of drug involved. Proposed subsection 302.2(3) applies absolute liability to the circumstance that the quantity is a commercial quantity (see overview of proposed Division 302 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is life imprisonment or 7,500 penalty units, or both.

Proposed section 302.3 Trafficking marketable quantities of controlled drugs

Proposed section 302.3 makes it an offence to traffic in a marketable quantity of a controlled drug. This offence is less serious than the offence of trafficking commercial quantities of controlled drugs in proposed section 302.2, but is more serious than the base offence of trafficking in controlled drugs in proposed section 302.4.

For the purposes of proposed paragraph 302.3(1)(a), a person traffics in a substance if the person engages in any of the forms of trafficking set out in proposed section 302.1. This proposed paragraph contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to traffic in the drug. In addition, all forms of trafficking except trafficking by sale have special fault elements that must accompany the relevant conduct - the commercial purpose. For example, in a case of trafficking by transportation, the prosecution must establish that the defendant intended to transport the substance, as well establishing that the person intended to sell any of the substance or believed that another person intends to sell any of it.

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 302.3(2) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of drug involved. Proposed subsection 302.3(3) applies absolute liability to the circumstance that the quantity is a marketable quantity (see overview of proposed Division 302 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is 25 years imprisonment or 5,000 penalty units, or both.

Proposed section 302.4 Trafficking controlled drugs

Proposed section 302.4 makes it an offence to traffic in controlled drugs. This offence is the least serious of the trafficking offences. The prosecution only needs to prove that the person has trafficked in a controlled drug - there is no element of quantity.

For the purposes of proposed paragraph 302.4(1)(a), a person traffics in a substance if the person engages in any of the forms of trafficking set out in proposed section 302.1. This proposed paragraph contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to traffic in the drug. In addition, all forms of trafficking except trafficking by sale have special fault elements that must accompany the relevant conduct - the commercial purpose. For example, in a case of trafficking by transportation, the prosecution must establish that the defendant intended to transport the substance, as well establishing that the person intended to sell any of the substance or believed that another person intends to sell any of it.

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 302.4(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is 10 years imprisonment or 2,000 penalty units, or both.

Proposed section 302.5 Presumption where trafficable quantities are involved

Trafficable quantity presumption

Proposed subsection 302.5(1) provides that where the prosecution can show that a trafficable quantity is involved in the offence, the relevant commercial element of the trafficking offence need not be proven, but is presumed. It is intended that a trafficable quantity will be set at an amount less than a marketable quantity. The trafficable quantity threshold will reflect the strong likelihood that an offence involving larger amounts will be commercially motivated, rather than intended for personal use.

The way in which the trafficable quantity presumption interfaces with the requirements of proof may be illustrated by way of example. For instance, in a prosecution for trafficking (by transportation) of a marketable quantity of controlled drug, the prosecution would have to prove that the defendant trafficked in a substance. This could be partially established by showing that the defendant transported a substance, and intended to transport that substance. However, the meaning of 'traffics' in proposed section 302.1 also attaches an additional commercial purpose to this conduct. Where the prosecution can also establish that a trafficable quantity of the controlled drug was involved in the offence, the person is taken to have the necessary commercial intention in the meaning of 'traffics' without the prosecution having to expressly prove it.

For those prosecutions involving less than a trafficable quantity, the prosecution will need to expressly prove commercial purpose to make out the trafficking offence.

The trafficable quantity presumption in proposed section 302.5 has no operation where the trafficable quantity has been established through the aggregation provision in proposed section 311.2 (see commentary for that section).

Defence - absence of commercial purpose

If the prosecution shows that there is a trafficable quantity of controlled drug involved in the offence and engages the trafficable quantity presumption, proposed subsection 302.5(2) makes available to the defendant a defence of absence of commercial purpose. If the defendant can prove on the balance of probabilities that he or she did not have both the relevant intention and belief, the defendant would then only be guilty of a base possession offence under proposed section 308.1, rather than any of the commercially motivated trafficking offences in proposed Division 302.

The defendant bears the legal burden when establishing the defence in proposed subsection 302.5(2). Trafficable quantities of controlled drugs are threshold quantities that will be set on the basis that they are indicative of an intention to sell rather than personal use. This factor is considered sufficient justification to reverse the onus of proof for this fault element through the operation of the presumption of commercial purpose. The standard of proof for the defendant to rebut the presumption is the lesser standard: on the balance of probabilities.

Proposed section 302.6 Purchase of controlled drugs is not an ancillary offence

The extensions of criminal responsibility in Chapter 2 of the Criminal Code will apply to extend the scope of the trafficking offences to those who attempt to traffic or conspire with others to engage in trafficking.

Proposed section 302.6 is designed to ensure that a person who only purchases a drug for personal use is not guilty of being an accomplice in the sale. If that person purchases with some additional criminal purpose, for example, to on-sell, that person should be exposed to the full complement of ancillary liability if not also primary liability for trafficking. However, this provision ensures that purchase alone does not make the buyer an accomplice in the vendor's crime.

Proposed Division 303 - Commercial cultivation of controlled plants

The purpose of this proposed Division is to target those who cultivate controlled plants for commercial purposes, rather than those who cultivate plants for personal use.

As in the trafficking offences, there will be three grades of cultivation offence, based on the quantity of controlled plants involved: commercial quantity (attracting a maximum penalty of life imprisonment), marketable quantity (attracting a maximum penalty of 25 years imprisonment), and no minimum quantity (attracting a maximum penalty of 10 years).

Absolute liability as to quantity

For the two most serious cultivation offences, absolute liability attaches to the circumstance of quantity of controlled plant. This means that the prosecution does not need to prove that the defendant either knew, or was reckless as whether, the quantity involved was a commercial quantity (where the top tier offence is alleged) or a marketable quantity (where the middle tier offence is alleged).

The qualified defence of mistake as to quantity in proposed section 313.4 operates to protect a defendant who mistakenly believed that a lesser quantity of plant was involved. That qualified defence operates where the defendant can prove, on the balance of probabilities, that at the time of the alleged offence he or she mistakenly believed that the quantity of the plant involved was less than the relevant threshold quantity. In those circumstances the trier of fact (judge or jury) may find the defendant not guilty of the alleged offence, and instead find the defendant guilty of a lesser offence. The appropriate lesser offence will depend on the quantity of plant that the defendant mistakenly believed was involved.

For example, in a prosecution for the most serious offence of cultivating a commercial quantity of controlled plants, if the defendant can prove that he or she mistakenly believed that a marketable quantity was involved, the defendant can instead be found guilty of the lesser offence of cultivating a marketable quantity of controlled plants (carrying a maximum penalty of 25 years imprisonment rather than life imprisonment). In order for the qualified defence to operate, it is not necessary for the defendant to prove that his or her belief as to quantity was a reasonable belief.

Applying absolute liability to the element of quantity and applying a qualified defence of mistake as to quantity will markedly improve the enforceability of these offences. This approach was recommended by MCCOC in 2003 as a modification to the model offences originally proposed in its 1998 report, and was also endorsed by the Standing Committee of Attorneys-General.

Proposed section 303.1 Meanings of cultivate and cultivates a plant

Proposed subsection 303.1(1) provides a definition of the types of conduct included in the term cultivate . The term embraces a diverse set of activities from planting to harvesting, and any act of nurturing the plant during its growing life.

Proposed subsection 303.1(2) specifically extends liability beyond those individuals who engage in the activity of cultivation (proposed paragraph (a)) to those who organise, direct or finance cultivation. Although the law of complicity may extend to these situations, it is more appropriate to treat the individuals who direct or control the activity of cultivation as principals, in the same way as those who physically engage in the cultivation itself.

Proposed section 303.2 Meaning of product of a plant

Proposed section 303.2 defines product of a plant for the purposes of proposed Part 9.1 of the Criminal Code. This definition is relevant to the phrase cultivates a plant for a commercial purpose .

Proposed section 303.3 Meaning of cultivates a plant for a commercial purpose

Proposed section 303.3 defines the phrase cultivates a plant for a commercial purpose for the purposes of proposed Part 9.1 of the Criminal Code.

The meaning of this term contains special fault elements that reflect the commercial purpose required in the offences targeting the commercial cultivation of controlled plants. For the purposes of proposed paragraph 303.3(b), the prosecution does not need to show that the other person actually intended to sell the plant or any of its products. The requirement of belief that another intended to sell can be satisfied even if the accused was mistaken, if the intentions of the other person cannot be ascertained, or if the other person's sale never took place.

For cultivation offences involving a trafficable quantity of controlled plant, the trafficable quantity presumption set out in proposed section 303.7 applies to the commercial purpose element. The operation of the trafficable quantity presumption is explained further in the discussion of proposed section 303.7 below.

Proposed section 303.4 Cultivating commercial quantities of controlled plants

Proposed Part 9.1 of the Criminal Code provides for three grades of offences of commercial cultivation of controlled plants, distinguished by the quantity of controlled plants that are cultivated. Proposed section 303.4 makes it an offence to cultivate a commercial quantity of controlled plant for a commercial purpose. This is the most serious offence involving controlled plants.

For the purposes of proposed paragraph 303.4(1)(a), a person 'cultivates a plant for a commercial purpose' if the person cultivates a plant as set out in proposed subsection 303.1(2), and has the commercial purpose as set out in proposed section 303.3. Proposed subsection 303.4(1) contains the conduct element of the offence. By operation of the section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to cultivate the plant.

A controlled plant is defined in proposed section 300.2 as a substance that is listed or described as a controlled plant in proposed section 314.2, prescribed by interim regulations under proposed paragraph 301.1(1)(b) or specified in an emergency determination under proposed paragraph 301.6(1)(b). Proposed subsection 303.4(2) makes clear that the prosecution must prove that the person was reckless as to whether the plant involved was a controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under section 301.10. Commercial quantities will vary depending on the type of plant involved. Proposed subsection 303.4(3) applies absolute liability to the circumstance that the quantity is a commercial quantity (see the overview of proposed Division 303 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is life imprisonment or 7,500 penalty units, or both.

Proposed section 303.5 Cultivating marketable quantities of controlled plants

Proposed section 303.5 makes it an offence to cultivate a marketable quantity of controlled plant with a commercial purpose. This offence is less serious than the offence of cultivating a commercial quantity of controlled plant for a commercial purpose, but is more serious than the base offence of this kind set out in proposed section 303.6.

For the purposes of proposed paragraph 303.5(1)(a), a person 'cultivates a plant for a commercial purpose' if the person cultivates a plant as set out in proposed section 303.1, and has the commercial purpose as set out in proposed section 303.3. Proposed subsection 303.5(1) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to cultivate the plant.

A controlled plant is defined in proposed section 300.2 as a substance that is listed or described as a controlled plant in proposed section 314.2, prescribed by interim regulations under proposed paragraph 301.1(1)(b) or specified in an emergency determination under proposed paragraph 301.6(1)(b). Proposed subsection 303.5(2) makes clear that the prosecution must prove that the person was reckless as to whether the plant involved was a controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of plant involved. Proposed subsection 303.5(3) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 303 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is 25 years imprisonment or 5,000 penalty units, or both.

Proposed section 303.6 Cultivating controlled plants

Proposed section 303.6 makes it an offence to cultivate a controlled plant for a commercial purpose. This offence is the least serious of the cultivation offences. The prosecution only needs to prove that the person has cultivated controlled plants for a commercial purpose - there is no element of quantity.

For the purposes of proposed paragraph 303.6(1)(a), a person 'cultivates a plant for a commercial purpose' if the person cultivates a plant as set out in proposed section 303.1, and has the commercial purpose as set out in proposed section 303.3. Proposed subsection 303.6(1) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to cultivate the plant.

A controlled plant is defined in proposed section 300.2 as a substance that is listed or described as a controlled plant in proposed section 314.2, prescribed by interim regulations under proposed paragraph 301.1(1)(b) or specified in an emergency determination under proposed paragraph 301.6(1)(b). Proposed subsection 303.6(2) makes clear that the prosecution must prove that the person was reckless as to whether the plant involved was a controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is 10 years imprisonment or 2,000 penalty units, or both.

Proposed section 303.7 Presumption where trafficable quantities are involved

Trafficable quantity presumption

Proposed subsection 303.7(1) provides that where the prosecution can show that a trafficable quantity is involved in the offence, the relevant commercial element of the cultivation offence need not be proven, but is presumed. It is intended that a trafficable quantity will be set at an amount less than a marketable quantity. The trafficable quantity threshold reflects the strong likelihood that an offence involving larger amounts will be commercially motivated, rather than intended for personal use.

The way in which the trafficable quantity presumption interfaces with the requirements of proof may be illustrated by way of example. For instance, in a prosecution for cultivating a marketable quantity of controlled plant, the prosecution would have to prove that the defendant cultivated a growing plant, and intended to cultivate the plant. However, proposed section 303.3 also attaches an additional commercial purpose to this conduct. Where the prosecution can also establish that a trafficable quantity of the controlled plant was involved in the offence the person is taken to have the necessary commercial intention for the cultivation offence without the prosecution having to expressly prove it.

For those prosecutions involving less than a trafficable quantity, the prosecution will need to expressly prove commercial purpose to make out the cultivation offence.

Defence - absence of commercial purpose

If the prosecution shows that there is a trafficable quantity of controlled plant involved in the offence and engages the trafficable quantity presumption, proposed subsection 303.7(2) makes available to the defendant a defence of absence of commercial purpose. If the defendant can prove on the balance of probabilities that he or she did not have both the relevant intention and belief, the defendant would not be guilty of any of the commercially motivated cultivation offences in proposed Division 303.

The defendant bears the legal burden when establishing the defence in proposed subsection 303.7(2). Trafficable quantities of controlled plants are threshold quantities that will be set on the basis that they are indicative of an intention to sell rather than personal use. This factor is considered sufficient justification to reverse the onus of proof for this fault element through the operation of the presumption of commercial purpose. The standard of proof for the defendant to rebut the presumption is the lesser standard: on the balance of probabilities.

Proposed Division 304 - Selling controlled plants

Like the proposed Division 303 cultivation offences, the offences for selling controlled plants are limited to growing plants. Because these offences can be committed at any stage in the life of the growing plant, there are two distinct kinds of situation which are targeted by the proposed Division 304 offences:

•

sale of seedlings for cultivation (for example, where a person sells seedlings to growers who will each cultivate a small number of plants), and

•

sale of growing plants for harvest (including where land is sold with its crop, as well as where a crop alone is sold for harvest)

A purchaser who cultivates as well as harvests the plants will be caught by the cultivation offences as well as the sale offences because harvest is included in the meaning of cultivation.

There will be three grades of offence in this proposed Division, based on the quantity of controlled plants involved: commercial quantity (attracting a maximum penalty of life imprisonment), marketable quantity (attracting a maximum penalty of 25 years imprisonment), and no minimum quantity (attracting a maximum penalty of 10 years).

Absolute liability as to quantity

For the two most serious offences in this proposed Division, absolute liability attaches to the circumstance of quantity of controlled plant. This means that the prosecution does not need to prove that the defendant either knew, or was reckless as whether, the quantity involved was a commercial quantity (where the top tier offence is alleged) or a marketable quantity (where the middle tier offence is alleged).

The qualified defence of mistake as to quantity in proposed section 313.4 operates to protect a defendant who mistakenly believed that a lesser quantity of plant was involved. That qualified defence operates where the defendant can prove, on the balance of probabilities, that at the time of the alleged offence he or she mistakenly believed that the quantity of the plant involved was less than the relevant threshold quantity. In those circumstances the trier of fact (judge or jury) may find the defendant not guilty of the alleged offence, and instead find the defendant guilty of a lesser offence. The appropriate lesser offence will depend on the quantity of plant that the defendant mistakenly believed was involved.

For example, in a prosecution for the most serious offence of selling a commercial quantity of controlled plants, if the defendant can prove that he or she mistakenly believed that a marketable quantity was involved, the defendant can instead be found guilty of the lesser offence of selling a marketable quantity of controlled plants (carrying a maximum penalty of 25 years imprisonment rather than life imprisonment). In order for the qualified defence to operate, it is not necessary for the defendant to prove that his or her belief as to quantity was a reasonable belief.

Applying absolute liability to the element of quantity and applying a qualified defence of mistake as to quantity will markedly improve the enforceability of these offences. This approach was recommended by MCCOC in 2003 as a modification to the model offences originally proposed in its 1998 report, and was also endorsed by the Standing Committee of Attorneys-General.

Proposed section 304.1 Selling commercial quantities of controlled plants

Proposed Part 9.1 of the Criminal Code provides for three grades of offences involving sale of controlled plants, distinguished by the quantity of controlled plants that are sold. Proposed section 304.1 makes it an offence to sell a commercial quantity of controlled plants, the most serious of the three offences in this category.

For the purposes of proposed paragraph 304.1(1)(a), a person sells a plant if the person engages in any of the kinds of conduct included in proposed section 300.2 for the purposes of this definition. Proposed paragraph 304.1(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to sell the plant. There is no additional fault element relating to commercial purpose for the proposed Division 304 offences, as commercial purpose is implicit in the conduct of sale.

A controlled plant is defined in proposed section 300.2 as a substance that is listed or described as a controlled plant in proposed section 314.2, prescribed by interim regulations under proposed paragraph 301.1(1)(b) or specified in an emergency determination under proposed paragraph 301.6(1)(b). Proposed subsection 304.1(2) makes clear that the prosecution must prove that the person was reckless as to whether the plant involved was a controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed 301.10. Commercial quantities will vary depending on the type of plant involved. Proposed subsection 304.1(3) applies absolute liability to the circumstance that the quantity is a commercial quantity (see the overview of proposed Division 304 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is imprisonment for life or 7,500 penalty units, or both.

Proposed section 304.2 Selling marketable quantities of controlled plants

Proposed section 304.2 makes it an offence to sell marketable quantities of controlled plants. This offence is less serious than the offence of selling commercial quantities of controlled plants in proposed section 304.1, but is more serious than the base offence of selling controlled plants in proposed section 304.3.

For the purposes of proposed paragraph 304.2(1)(a), a person sells a plant if the person engages in any of the kinds of conduct included in proposed section 300.2 for the purposes of this definition. Proposed paragraph 304.2(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to sell the plant. There is no additional fault element relating to commercial purpose for the proposed Division 304 offences, as commercial purpose is implicit in the conduct of sale.

A controlled plant is defined in proposed section 300.2 as a substance that is listed or described as a controlled plant in proposed section 314.2, prescribed by interim regulations under proposed paragraph 301.1(1)(b) or specified in an emergency determination under proposed paragraph 301.6(1)(b). Proposed subsection 304.2(2) makes clear that the prosecution must prove that the person was reckless as to whether the plant involved was a controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of plant involved. Proposed subsection 304.2(3) applies absolute liability to the circumstance that the quantity is a marketable quantity (see overview of proposed Division 304 for reasons for applying absolute liability).

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed section 304.3 Selling controlled plants

Proposed section 304.3 makes it an offence to sell controlled plants. This offence is the least serious of the offences in this proposed Division. The prosecution only needs to prove that the person has sold a controlled plant - there is no element of quantity.

For the purposes of proposed paragraph 304.3(1)(a), a person sells a plant if the person engages in any of the kinds of conduct included in proposed section 300.2 for the purposes of this definition. Proposed paragraph 304.3(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to sell the plant. There is no additional fault element relating to commercial purpose for the proposed Division 304 offences, as commercial purpose is implicit in the conduct of sale.

A controlled plant is defined in proposed section 300.2 as a substance that is listed or described as a controlled plant in proposed section 314.2, prescribed by interim regulations under proposed paragraph 301.1(1)(b) or specified in an emergency determination under proposed paragraph 301.6(1)(b). Proposed subsection 304.3(2) makes clear that the prosecution must prove that the person was reckless as to whether the plant involved was a controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is 10 years or 2,000 penalty units, or both.

Proposed Division 305 - Commercial manufacture of controlled drugs

The purpose of this proposed Division is to target the illicit commercial manufacture of controlled drugs. Although occasional instances of the manufacture of heroin and other narcotics are reported, the majority of offences falling under this proposed Division will involve synthetic drugs, such as amphetamines, which can be manufactured from chemicals and substances which have legitimate uses in industry.

The raw materials used in the manufacture of amphetamines and other controlled drugs are called precursors: many of these are themselves the subject of prohibition and control. Serious offences targeting dealings in controlled precursors for the purpose of drug manufacture are contained in proposed Divisions 306 - 310.

There will be three grades of drug manufacturing offence, based on the quantity of controlled drug involved: commercial quantity (attracting a maximum penalty of life imprisonment), marketable quantity (attracting a maximum penalty of 25 years imprisonment), and the general trafficking offence which has no minimum quantity (attracting a maximum penalty of 10 years).

Absolute liability as to quantity

For the two most serious manufacturing offences, absolute liability attaches to the circumstance of quantity of controlled drug. This means that the prosecution does not need to prove that the defendant either knew, or was reckless as whether, the quantity involved was a commercial quantity (where the top tier offence is alleged) or a marketable quantity (where the middle tier offence is alleged).

The qualified defence of mistake as to quantity in proposed section 313.4 operates to protect a defendant who mistakenly believed that a lesser quantity of drug was involved. That qualified defence operates where the defendant can prove, on the balance of probabilities, that at the time of the alleged offence he or she mistakenly believed that the quantity of the drug involved was less than the relevant threshold quantity. In those circumstances the trier of fact (judge or jury) may find the defendant not guilty of the alleged offence, and instead find the defendant guilty of a lesser offence. The appropriate lesser offence will depend on the quantity of drug that the defendant mistakenly believed was involved.

For example, in a prosecution for the most serious offence of manufacturing a commercial quantity of controlled drugs, if the defendant can prove that he or she mistakenly believed that a marketable quantity was involved, the defendant can instead be found guilty of the lesser offence of manufacturing a marketable quantity of controlled drugs (carrying a maximum penalty of 25 years imprisonment rather than life imprisonment). In order for the qualified defence to operate, it is not necessary for the defendant to prove that his or her belief as to quantity was a reasonable belief.

Applying absolute liability to the element of quantity and applying a qualified defence of mistake as to quantity will markedly improve the enforceability of these offences. This approach was recommended by MCCOC in 2003 as a modification to the model offences originally proposed in its 1998 report, and was also endorsed by the Standing Committee of Attorneys-General.

Proposed section 305.1 Meanings of manufacture and manufactures a substance

Proposed subsection 305.1(1) defines manufacture for the purposes of proposed Part 9.1 of the Criminal Code. The term embraces a broad set of activities including any process, other than the cultivation of a plant, by which a substance is produced. Although not limited to the examples provided in the proposed subsection, processes that would be regarded as manufacture are processes of extracting or refining a substance, and processes whereby one substance is transformed into another substance.

Proposed subsection 305.1(2) specifically extends liability beyond those individuals who engage in the activity of manufacture (proposed paragraph (a)) to those who organise, direct or finance drug manufacture. Although the law of complicity may extend to these situations, it is more appropriate to treat the individuals who direct or control the activity of drug manufacture as principals, in the same way as those who physically engage in the drug manufacture itself.

Proposed section 305.2 Meaning of manufactures a substance for a commercial purpose

Proposed section 305.2 defines the phrase manufactures a substance for a commercial purpose as it is used in proposed Part 9.1 of the Criminal Code.

The definition contains special fault elements of commercial purpose that reflect the purpose of these offences in targeting the commercial manufacture of controlled drugs. For the purposes of proposed paragraph 305.2(b), the prosecution does not need to show that the other person actually intended to sell any of the drug. The requirement of belief that another intended to sell can be satisfied even if the accused was mistaken, if the intentions of the other person cannot be ascertained, or if the other person's sale never took place.

For the manufacturing offences involving a trafficable quantity of controlled drug, the trafficable quantity presumption set out in proposed section 305.6 interfaces with the meaning of 'manufactures a substance for a commercial purpose' in relation to the element of commercial purpose. The operation of the trafficable quantity presumption is explained further in the discussion of proposed section 305.6 below.

Proposed section 305.3 Manufacturing commercial quantities of controlled drugs

Proposed Part 9.1 of the Criminal Code provides for three grades of manufacturing offences, distinguished by the quantity of controlled drugs involved. Proposed section 305.3 makes it an offence to manufacture a commercial quantity of a controlled drug, the most serious drug manufacturing offence proposed in Part 9.1.

For the purposes of proposed paragraph 305.3(1)(a), a person manufactures a substance for a commercial purpose if the person manufactures a substance as set out in proposed section 305.1, and has the commercial purpose set out in proposed section 305.2. Proposed paragraph 305.3(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to manufacture the substance.

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 305.3(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Commercial quantities will vary depending on the type of drug involved. Proposed subsection 305.3(3) applies absolute liability to the circumstance that the quantity is a commercial quantity (see the overview of proposed Division 305 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is life imprisonment or 7,500 penalty units, or both.

Proposed section 305.4 Manufacturing marketable quantities of controlled drugs

Proposed section 305.4 makes it an offence to manufacture marketable quantities of controlled drugs. This offence is less serious than the offence of manufacturing a commercial quantity of controlled drug in proposed section 305.3, but is more serious than the base offence of manufacturing a controlled drug in proposed section 305.5.

For the purposes of proposed paragraph 305.4(1)(a), a person manufactures a substance for a commercial purpose if the person manufactures a substance as set out in proposed section 305.1, and has the commercial purpose set out in proposed section 305.2. Proposed paragraph 305.4(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to manufacture the substance.

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 305.4(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of drug involved. Proposed subsection 305.4(3) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 305 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is 25 years imprisonment or 5,000 penalty units, or both.

Where the offence committed is an aggravated offence, the penalty available is increased to imprisonment of 28 years or 5,600 penalty units, or both. Under proposed section 310.4, the offence will be an aggravated offence if the commission of the offence exposes an individual (under 14 years of age) to the manufacture of a controlled drug (the commentary on proposed section 310.4 outlines what is required to establish an aggravated offence).

Proposed section 305.5 Manufacturing controlled drugs

Proposed section 305.5 makes it an offence to manufacture controlled drugs. This offence is the least serious of the drug manufacturing offences. The prosecution only needs to prove that the person has trafficked in a controlled drug - there is no element of quantity.

For the purposes of proposed paragraph 305.5(1)(a), a person manufactures a substance for a commercial purpose if the person manufactures a substance as set out in proposed subsection 305.1(2), and has the required commercial purpose as set out in proposed section 305.2. Proposed paragraph 305.5(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to manufacture the substance.

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 305.5(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is 10 years imprisonment or 2,000 penalty units, or both.

Where the offence committed is an aggravated offence, the penalty available is increased to imprisonment of 12 years or 2,400 penalty units, or both. Under proposed section 310.4, the offence will be an aggravated offence if the commission of the offence exposes an individual (under 14 years of age) to the manufacture of a controlled drug (the commentary on proposed section 310.4 outlines what is required to establish an aggravated offence).

Proposed section 305.6 Presumption where trafficable quantities are involved

Trafficable quantity presumption

Proposed subsection 305.6(1) provides that where the prosecution can show that a trafficable quantity is involved in the offence, the required commercial element of the manufacturing offence need not be proven, but is presumed. It is intended that a trafficable quantity will be set at an amount less than a marketable quantity. The trafficable quantity threshold reflects the strong likelihood that an offence involving larger amounts will be commercially motivated, rather than intended for personal use.

The way in which the trafficable quantity presumption interfaces with the requirements of proof may be illustrated by way of example. For instance, in a prosecution for manufacturing a marketable quantity of controlled drug, the prosecution would have to prove that the defendant manufactured a drug, and intended to manufacture that drug. However, proposed section 305.2 also attaches an additional commercial purpose to this conduct. Where the prosecution can also establish that a trafficable quantity of the controlled drug was involved in the offence, the person is taken to have the necessary commercial intention for the manufacturing offence without the prosecution having to expressly prove it.

For those prosecutions involving less than a trafficable quantity, the prosecution will need to expressly prove commercial purpose to make out the manufacturing offence.

Defence - absence of commercial purpose

If the prosecution shows that there is a trafficable quantity of controlled drug involved in the offence and engages the trafficable quantity presumption, proposed subsection 305.6(2) makes available to the defendant a defence of absence of commercial purpose. If the defendant can prove on the balance of probabilities that he or she did not have both the relevant intention and belief, the defendant would not be guilty of any of the commercially motivated manufacturing offences in proposed Division 305.

The defendant bears the legal burden when establishing the defence in proposed subsection 305.6(2). Trafficable quantities of controlled drugs are threshold quantities that will be set on the basis that they are indicative of an intention to sell rather than personal use. This factor is considered sufficient justification to reverse the onus of proof for this fault element through the operation of the presumption of commercial purpose. The standard of proof for the defendant to rebut the presumption is the lesser standard: on the balance of probabilities.

Proposed Division 306 - Pre-trafficking controlled precursors

The purpose of proposed Division 306 is to create new federal offences targeting illicit dealings in precursor chemicals for the purpose of manufacturing controlled drugs. Precursors are chemical substances that are used in the manufacture of controlled drugs, particularly amphetamines. Most, if not all, precursors also have legitimate uses, and are subject to regulatory controls to limit their diversion to the illicit manufacture of amphetamines and other controlled drugs.

The proposed precursor offences are grouped under the central concept of pre-trafficking which covers a range of conduct involving precursors. The term pre-trafficking reflects the fact that the precursor offences target conduct that is preparatory to the actual trafficking of a controlled drug.

The structure of the pre-trafficking offences mirrors the structure of the drug trafficking offences in proposed Division 302. There will be three tiers of pre-trafficking offence with the maximum penalty depending on the quantity of controlled precursor involved. The pre-trafficking offences have slightly lower penalties than the trafficking offences to reflect the fact that the conduct involved is preparatory to illicit drug manufacturing. The commercial quantity pre-trafficking offence attracts a maximum penalty of 25 years imprisonment, the marketable quantity offence attracts a maximum penalty of 15 years imprisonment and there is a base offence with no minimum quantity attracting a maximum penalty of 7 years.

The offences in this proposed Division are based on the Model Criminal Code offences recommended in the MCCOC Report. To increase the enforceability of the bottom tier offence carrying a maximum penalty of 7 years imprisonment, presumptions apply to the elements of commercial purpose and intention to manufacture a controlled drug.

Presumption of intent to manufacture for 7 year offence

Where a defendant is being prosecuted for the bottom tier pre-trafficking offence (with a maximum penalty of 7 years imprisonment), the defendant will be presumed to have intended to use the precursor to manufacture a controlled drug (or to have believed another person had that intention) where the defendant was possessing, manufacturing or selling the precursor illegally. For example, if the defendant was required by State law to have a licence in order to possess a precursor and was not licensed to possess it, the defendant will be presumed to have intended to use the precursor to manufacture a controlled drug. The defendant will be able to rebut that presumption by proving, on the balance of probabilities, that he or she did not have that intention.

This presumption has been included because in many cases it will be difficult for the prosecution to obtain evidence of an intention to manufacture a controlled drug. If a person is dealing illegally with precursor it is considered reasonable to reverse the burden of proof by presuming that they are doing so for an illicit purpose. The standard of proof for the defendant to rebut the presumption is the lesser standard - on the balance of probabilities - as opposed to the standard for the prosecution - beyond reasonable doubt.

Importantly, the presumption will not apply in cases where there is no Commonwealth, State or Territory law requiring that person to be authorised in order to deal with the precursor (for example, where there is no requirement to be licensed to possess the precursor or to fall within a prescribed class that is specially qualified or registered to possess the precursor). Nor will the presumption apply where the defendant is exposed to a penalty exceeding 7 years imprisonment.

The presumption has been designed to incorporate State and Territory authorisation schemes as well as Commonwealth schemes as most domestic dealings in precursors are regulated through State and Territory legislation, although that regulation is by no means comprehensive. State and Territory regulatory schemes will continue to operate concurrently with proposed Part 9.1 of the Criminal Code. It will be a defence to all offences in proposed Part 9.1 if the alleged conduct is justified or excused by or under a law of the Commonwealth (see section 10.5 of the Criminal Code) or a relevant State or Territory (see proposed section 313.1).

Presumption of intent to sell for 7 year offence

Where a defendant is being prosecuted for the bottom tier pre-trafficking offence (with a maximum penalty of 7 years imprisonment), the defendant will be presumed to have had a commercial purpose where he or she was possessing or manufacturing a marketable quantity of a controlled precursor. The defendant will be able to rebut that presumption by proving, on the balance of probabilities, that he or she did not have a commercial purpose or believe that another person had a commercial purpose.

This presumption is considered justifiable because threshold quantities of controlled precursors will be ascertained by reference to the quantity of controlled drug that might be produced from that precursor in combination with other necessary chemicals. A marketable quantity of a particular precursor will be set on the basis that it can be used to produce a marketable quantity of a controlled drug. On that basis if, for example, a person possesses a marketable quantity of a precursor with the intention of using it to manufacture a controlled drug, it is reasonable to presume that he or she intended to manufacture a marketable quantity (or at least a trafficable quantity) of the controlled drug. Trafficable quantities of controlled drugs are threshold quantities that will be set on the basis that they are indicative of an intention to sell rather than personal use.

This presumption is similar to the presumption of commercial purpose that applies to the drug trafficking offences in proposed Division 302, although the lesser 'trafficable quantity' is the threshold quantity giving rise to the presumption in that context.

This presumption can only apply where the defendant is exposed to a penalty no greater than 7 years imprisonment. Whilst defendants alleged to have pre-trafficked in a marketable quantity of a precursor are likely to be prosecuted for the middle tier (marketable quantity - 15 year penalty) offence in the first instance, the bottom tier offence (no minimal quantity - 7 year penalty) may be prosecuted in the alternative in case the defendant is not found guilty of the middle tier offence. For instance, if a prosecution for the middle tier offence fails because the prosecution is unable to prove commercial purpose without the benefit of the presumption, an alternative prosecution for the bottom tier offence may succeed.

Absolute liability as to quantity

For the two most serious pre-trafficking offences, absolute liability attaches to the circumstance of quantity of controlled precursor. This means that the prosecution does not need to prove that the defendant either knew, or was reckless as whether, the quantity involved was a commercial quantity (where the top tier offence is alleged) or a marketable quantity (where the middle tier offence is alleged).

The qualified defence of mistake as to quantity in proposed section 313.4 operates to protect a defendant who mistakenly believed that a lesser quantity of precursor was involved. That qualified defence operates where the defendant can prove, on the balance of probabilities, that at the time of the alleged offence he or she mistakenly believed that the quantity of the precursor involved was less than the relevant threshold quantity. In those circumstances the trier of fact (judge or jury) may find the defendant not guilty of the alleged offence, and instead find the defendant guilty of a lesser offence. The appropriate lesser offence will depend on the quantity of precursor that the defendant mistakenly believed was involved.

For example, in a prosecution for the most serious offence of pre-trafficking in a commercial quantity of a controlled precursor, if the defendant can prove that he or she mistakenly believed that a marketable quantity was involved, the defendant can instead be found guilty of the lesser offence of pre-trafficking in a marketable quantity of a controlled precursor (carrying a maximum penalty of 15 years imprisonment rather than 25 years imprisonment). In order for the qualified defence to operate, it is not necessary for the defendant to prove that his or her belief as to quantity was a reasonable belief.

Applying absolute liability to the element of quantity and applying a qualified defence of mistake as to quantity will markedly improve the enforceability of these offences. This approach was recommended by MCCOC in 2003 as a modification to the model offences originally proposed in its 1998 report, and was also endorsed by the Standing Committee of Attorneys-General.

Proposed section 306.1 Meaning of pre-traffics

Proposed section 306.1 defines pre-traffics for the purposes of proposed Part 9.1 of the Criminal Code. Pre-trafficking is an element of all the pre-trafficking offences in proposed Division 306.

The pre-trafficking offences are intended to capture those who engage in conduct preparatory to illicit drug manufacture. The definition of pre-trafficking covers the sale of, or the commercially-motivated manufacture or possession of, a substance, intending to use the substance to manufacture a controlled drug or believing that another person intends to use the substance for that purpose. The definition therefore incorporates both physical and fault elements.

Although the concept of pre-trafficking contains a nexus to drug manufacture, it is not necessary to prove that the drug manufacture actually occurred. What is critical is the intention held by the defendant in selling, manufacturing or possessing a precursor.

Selling a substance includes bartering or exchanging the substance and agreeing to sell the substance (see the definition of sell in proposed section 300.2). In order to constitute pre-trafficking the defendant must sell the substance believing that the person to whom the controlled precursor is sold, or another person, intends to use the substance to manufacture a controlled drug.

Proposed section 306.2 Pre-trafficking commercial quantities of controlled precursors

Proposed section 306.2 makes it an offence to pre-traffic in a commercial quantity of a controlled precursor. This offence is the most serious of the three proposed pre-trafficking offences. Pre-traffics is defined in proposed section 306.1 to cover the sale, or commercially motivated manufacture or possession of a substance, where there is a nexus with the manufacture of a controlled drug. Proposed subsection 306.2(1) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove the defendant intended to sell, manufacture or possess the substance.

A controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under proposed subsection 301.2(1) or specified in an emergency determination under proposed subsection 301.7(1). Proposed subsection 306.2(2) makes it clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Commercial quantities will vary depending on the type of precursor involved. Proposed subsection 306.3(3) applies absolute liability to the circumstance that the quantity is a commercial quantity (see the overview of proposed Division 306 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is 25 years imprisonment or 5,000 penalty units, or both.

Where the offence is an aggravated offence, the maximum penalty is increased to imprisonment for 28 years or 5,600 penalty units, or both. The offence will be an aggravated offence if the commission of the offence exposes an individual (under 14 years of age) to a controlled precursor intended to be used for the commercial manufacture of a controlled drug, or the manufacture of a controlled precursor. The elements for establishing an aggravated pre-trafficking offence are contained in proposed subsection 310.4(3).

Proposed section 306.3 Pre-trafficking marketable quantities of controlled precursors

Proposed section 306.3 makes it an offence to pre-traffic in a marketable quantity of a controlled precursor. This offence is less serious than the offence of pre-trafficking in commercial quantities of controlled precursors in proposed section 306.2, but is more serious than the base offence of pre-trafficking in controlled precursors in proposed section 306.4.

Pre-traffics is defined in proposed section 306.1 to cover the sale, or commercially motivated manufacture or possession of a substance, where there is a nexus with the manufacture of a controlled drug. Proposed subsection 306.3(1) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the defendant intended to sell, manufacture or possess the substance.

A controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under proposed subsection 301.2(1) or specified in an emergency determination under proposed subsection 301.7(1). Proposed subsection 306.3(2) makes it clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Proposed subsection 306.3(3) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 306 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is 15 years imprisonment or 3,000 penalty units, or both.

Where the offence is an aggravated offence, the maximum penalty is increased to imprisonment for 17 years or 3,400 penalty units, or both. The offence will be an aggravated offence if the commission of the offence exposes an individual (under 14 years of age) to a controlled precursor intended to be used for the commercial manufacture of a controlled drug, or the manufacture of a controlled precursor. The elements for establishing an aggravated pre-trafficking offence are contained in proposed subsection 310.4(3).

Proposed section 306.4 Pre-trafficking controlled precursors

Proposed section 306.4 makes it an offence to pre-traffic in controlled precursors. This offence is the least serious of the pre-trafficking offences. The prosecution only needs to prove that the person has pre-trafficked in a controlled precursor - there is no element of quantity.

Pre-traffics is defined in proposed section 306.1 to cover the sale, or commercially motivated manufacture or possession of a substance, where there is a nexus with the manufacture of a controlled drug. Proposed subsection 306.4(1) contains the conduct element of the offence. By operation of in section 5.6 of the Criminal Code, the prosecution will need to prove the defendant intended to sell, manufacture or possess the substance.

For the purposes of proving the element of pre-trafficking for this offence, proposed sections 306.5 - 306.8 make a number of presumptions available to the prosecution (see the discussion of proposed sections 306.5 - 306.8 below).

A controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under proposed subsection 301.2(1) or specified in an emergency determination under proposed subsection 301.7(1). Proposed subsection 306.4(2) makes it clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is 7 years imprisonment or 1,400 penalty units, or both.

Where the offence is an aggravated offence, the maximum penalty is increased to imprisonment for 9 years or 1,800 penalty units, or both. The offence will be an aggravated offence if the commission of the offence exposes an individual (under 14 years of age) to a controlled precursor intended to be used for the commercial manufacture of a controlled drug, or the manufacture of a controlled precursor. The elements for establishing an aggravated pre-trafficking offence are contained in proposed subsection 310.4(3).

Proposed sections 306.5 - 306.8 Presumptions for proving the offence pre-trafficking controlled precursors

Proposed sections 306.5 - 306.8 make a number of presumptions available to the prosecution when proving the offence in proposed section 306.4. That offence is the least serious of the pre-trafficking offences carrying a maximum penalty of 7 years imprisonment. The purpose of the presumptions is to increase the enforceability of that offence by assisting the prosecution to prove fault elements that would otherwise be very difficult to prove. The introductory section to this proposed Division outlines the rationale for the presumptions in more detail.

There are two types of pre-trafficking presumptions: a presumption of intention to manufacture a controlled drug (or belief that another person had that intention), and a presumption of commercial intention. Proposed sections 306.5 - 306.8 enable the presumptions to apply to all types of pre-trafficking: pre-trafficking by sale of a precursor, pre-trafficking by manufacture of a precursor, and pre-trafficking by possession of a precursor.

Proposed section 306.5 Presumption for pre-trafficking controlled precursors - sale

Proposed subsection 306.5(1) sets out the circumstances in which a defendant, who is being prosecuted for an offence against section 306.4 for selling a controlled precursor, will be presumed to have sold the precursor believing that another person intended to use the precursor to manufacture a controlled drug. That presumption will arise where the defendant's conduct in selling the controlled precursor was required to be authorised by a Commonwealth, State or Territory law but was not so authorised.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not believe that the person to whom the substance was sold, or any other person, intended to use any of the substance to manufacture a controlled drug (proposed subsection 306.5(2)).

Proposed section 306.6 Presumptions for pre-trafficking controlled precursors-manufacture for drug manufacture

Proposed section 306.6 creates presumptions that can be used when prosecuting an offence against proposed section 306.4 that is alleged to involve pre-trafficking by manufacture as defined by proposed subsection 306.1(b).

Presumption of intention to manufacture a controlled drug

Proposed subsection 306.6(1) sets out the circumstances where the defendant will be presumed to have manufactured the precursor with the intention of using it to manufacture a controlled drug. The presumption arises where the defendant's conduct in manufacturing the precursor was required to be authorised by a Commonwealth, State or Territory law and the manufacture was not so authorised.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not manufacture the substance with the intention of using any of it to manufacture a controlled drug (proposed subsection 306.6(2)).

Presumption of commercial intention

Proposed subsection 306.6(3) sets out the circumstances where the defendant will be presumed to have the requisite commercial intention as defined by proposed subsection 306.1(b). Subsection 306.6(3) provides that if a person has manufactured a marketable quantity of a substance with the intention of using it to manufacture a controlled drug, the person is taken to have done so with the intention of selling some or all of the drug so manufactured, or believing that another person intended to do so.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not have that intention or belief (proposed subsection 306.6(4)).

Proposed section 306.7 Presumptions for pre-trafficking controlled precursors-manufacture for sale

Proposed section 306.7 creates presumptions that can be used when prosecuting an offence against section 306.4 that is alleged to involve pre-trafficking by manufacture as defined by proposed paragraph 306.1(c).

Presumption of intention to sell a controlled precursor

Proposed subsection 306.7(1) sets out the circumstances where the defendant will be presumed to have the requisite commercial intention as defined by proposed subsection 306.1(c). If the defendant has manufactured a marketable quantity of the controlled precursor, the defendant is taken to have intended to sell some or all of that precursor to another person.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not intend to sell the substance to another person (proposed subsection 306.7(2)).

Presumption of belief that the purchaser intended to manufacture a controlled drug

Proposed subsection 306.7(3) sets out the circumstances where the defendant will be presumed to have believed that another person intended to use the precursor to manufacture a controlled drug. The presumption arises where the defendant's conduct in manufacturing the precursor with the intention of selling some or all or it to another person was required to be authorised by a Commonwealth, State or Territory law and the manufacture was not so authorised.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not believe the other person intended to use the precursor to manufacture a controlled drug (proposed subsection 306.7(4)).

Proposed section 306.8 Presumptions for pre-trafficking controlled precursors-possession

Proposed section 306.8 creates presumptions for proposed section 306.4 where the relevant conduct is pre-trafficking by possession as defined by proposed subsection 306.1(d).

Presumption of intention to manufacture a controlled drug

Proposed subsection 306.8(1) sets out the circumstances where the defendant will be presumed to have manufactured the precursor with the intention of using it to manufacture a controlled drug. The presumption arises where the defendant's conduct in possessing the precursor was required to be authorised by a Commonwealth, State or Territory law and the manufacture was not so authorised.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not intend to use the precursor to manufacture a controlled drug (proposed subsection 306.8(2)).

Presumption of commercial intention

Proposed subsection 306.8(3) sets out the circumstances where the defendant will be presumed to have the requisite commercial intention for pre-trafficking by possession as defined by proposed paragraph 306.1(d). Subsection 306.8(3) provides that if a person possessed a marketable quantity of a substance with the intention of using it to manufacture a controlled drug, the person is taken to have done so with the intention of selling the drug so manufactured, or believing that another person intended to do so.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not intend to sell the drug or believe that another person had that intention (proposed subsection 306.8(4)).

Proposed Division 307 - Import-export offences

Proposed Division 307 has a range of objectives.

The proposed Division will bring the existing drug offences in the Customs Act across to the Criminal Code so that they are located with the new federal drug offences with broader domestic application. Proposed Part 3 of Schedule 1 to this Bill repeals existing offences in the Customs Act that would be made redundant by proposed Division 307.

The drug offences being brought across from the Customs Act will be restructured so that the issue of quantity of drug is placed before the arbiter of fact (judge or jury). This will remedy existing legal vulnerabilities with the structure of the offences in the Customs Act that have previously been the subject of legal challenge.

The penalties for the offence of importing or exporting a middle-tier quantity of cannabis will be increased from a maximum of 10 years imprisonment to a maximum of 25 years imprisonment to bring the treatment of cannabis into line with the treatment of other illicit drugs. This is consistent with the approach recommended in the MCCOC Report, where the threshold quantities of each drug differ depending on the nature of that drug but the penalties that correspond to each of the threshold quantities are the same.

An additional penalty tier of 10 years imprisonment is proposed for the drug import-export offences to apply where relatively small quantities of drugs are imported or exported but the prosecution can prove that the offence was commercially motivated. Under the current drug offences in the Customs Act, the maximum penalty for all illicit imports or exports involving less than a trafficable quantity is 2 years imprisonment. The new 10 year penalty tier is consistent with the approach recommended in the MCCOC Report, and consistent with the broader drug trafficking offences in proposed Division 302.

Finally, proposed Division 307 creates new offences of importing and exporting border controlled precursors based on the generic precursor offences recommended in the MCCOC Report.

Whilst there is significant overlap between the import-export offences in proposed Division 307 and other offences in proposed Part 9.1, there are also significant differences. The proposed Division 307 offences have been designed to accord as closely as possible to the offences they are replacing in the Customs Act. A guiding principle has been to ensure that the offences in proposed Division 307 are no more difficult to prove than the existing offences in the Customs Act. For that reason, commercial intention is not an element of any of the proposed Division 307 offences. Instead, absence of a commercial intention is available as a defence for some proposed Division 307 offences in a manner that reflects the current operation of the Customs Act offences.

The alternative verdict provisions in proposed sections 313.4 and 313.5 do not apply to the proposed Division 307 offences as alternative verdicts of that kind are not currently permitted for the Customs Act offences.

However, consistent with offences in other Divisions, absolute liability attaches to the circumstance of quantity of border controlled drug for offences in this proposed Division. This means that the prosecution does not need to prove that the defendant knew, or was reckless as to whether, the quantity imported or exported was a commercial quantity (for the top tier offences) or a marketable quantity (for the middle tier offences). This reflects the situation with the current import-export offences in section 233B of the Customs Act. In those offences, quantity is not an element of the offence but, under section 235, a factor that determines the applicable maximum penalty. Consequently, there is no need for the prosecution to prove fault as to quantity in order for a penalty of life imprisonment to be imposed.

The proposed Division 307 offences are designed to ensure that they will be no more difficult to prove than the existing offences in section 233B of the Customs Act, which they will replace. The new import-export precursor offences in proposed Subdivision D are consistent with the other import-export offences in relation to the element of quantity.

The availability of enforcement powers also distinguishes the proposed Division 307 offences from other offences in proposed Part 9.1. The existing powers of officers from the Australian Customs Service (ACS) to carry out functions such as arrest, search and seizure would be extended to apply to the proposed Division 307 offences but not to other offences in proposed Part 9.1. This maintains the current limitation on the powers of the ACS by linking their powers only to those offences with a nexus to import and export.

Proposed Subdivision A - Importing and exporting border controlled drugs or border controlled plants

Proposed Subdivision A of Division 307 brings across to the Criminal Code the import-export offences currently contained in section 233B of the Customs Act. Offences in section 233B that are ancillary to the import-export offences in proposed Subdivision A will automatically be covered through the application of Part 2.4 of Chapter 2 of the Criminal Code, which extends criminal responsibility to those who attempt, are complicit in, incite, or conspire to commit criminal offences.

The offences in proposed Subdivision A have tiered penalties depending on the quantity of border controlled drug or border controlled plant involved. The proposed offence involving a commercial quantity carries a maximum penalty of life imprisonment, the proposed offence involving a marketable quantity carries a maximum penalty of 25 years imprisonment, and the proposed offence with no minimum quantity carries a maximum penalty of 10 years. There is also a proposed base two-year offence with no minimum quantity and no defence of absence of commercial intention. The structure of these proposed offences is consistent with the other serious drug offences in proposed Part 9.1. It is also consistent with the penalty tiering for the current import-export offences in section 235 of the Customs Act, except that there is no corresponding 10 year penalty in the Customs Act (currently any drug import-export offence involving less than a trafficable quantity carries a maximum penalty of 2 years imprisonment, irrespective of whether the offender had a commercial intent).

Proposed section 307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants

Proposed subsection 307.1(1) makes it an offence for a person to import or export a commercial quantity of a border controlled drug or border controlled plant. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to import or export the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.1(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or a border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Commercial quantities will vary depending on the type of drug or plant involved. Proposed subsection 307.1(3) applies absolute liability to the circumstance that the quantity is a commercial quantity (see the overview of proposed Division 307 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is imprisonment for life or 7,500 penalty units, or both.

Proposed section 307.2 Importing and exporting marketable quantities of border controlled drugs or border controlled plants

Proposed subsection 307.2(1) makes it an offence for a person to import or export a marketable quantity of a border controlled drug or border controlled plant. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to import or export the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.2(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of drug or plant involved. Proposed subsection 307.2(3) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 307 for the reasons for applying absolute liability).

Proposed subsection 307.2(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not intend to sell any of the border controlled drug or border controlled plant and did not believe that another person intended to do so. This reflects the purpose of this offence in targeting commercially motivated importation or exportation. The lesser offence in proposed section 307.4 targets those who import or export border controlled drugs or border controlled plants without a commercial purpose. Commercial intention does not form an element of this offence because that approach would make the offence more difficult to prove than the existing offence in section 233B of the Customs Act. Framing lack of commercial intent as a defence, and imposing a legal burden on the defendant in relation to it, more closely reflects situation of the defendant under the existing Customs Act offences.

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed section 307.3 Importing and exporting border controlled drugs or border controlled plants

Proposed subsection 307.3(1) makes it an offence for a person to import or export a border controlled drug or border controlled plant. This offence differs from the more serious offences in proposed sections 307.1 and 307.2 because there is no need for the prosecution to prove that a particular quantity of the border controlled drug or border controlled plant was involved.

Paragraph 307.3(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to import or export the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.3(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

Proposed subsection 307.3(3) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not intend to sell any of the border controlled drug or border controlled plant and did not believe that another person intended to do so. This reflects the purpose of this offence in targeting commercially motivated importation or exportation. The lesser offence in proposed section 307.4 targets those who import or export border controlled drugs or border controlled plants without a commercial purpose.

The proposed maximum penalty for this offence is imprisonment for 10 years or 2,000 penalty units, or both.

Proposed section 307.4 Importing and exporting border controlled drugs or border controlled plants - no defence relating to lack of commercial intent

Proposed subsection 307.4(1) makes it an offence for a person to import or export a border controlled drug or border controlled plant. This offence differs from the more serious offence in proposed section 307.3 because it does not contain a defence of lack of commercial intent. It is intended to target those who illegally import border controlled drugs or border controlled plants for their own personal use, or for other non-commercial purposes.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.4(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is imprisonment for 2 years or 400 penalty units, or both.

Proposed Subdivision B - Possessing unlawfully imported border controlled drugs or border controlled plants

Proposed Subdivision B of Division 307 will bring across to the Criminal Code the possession offence currently contained in paragraph 233B(1)(iv) of the Customs Act. This offence targets possession of border controlled drugs and border controlled plants that have been illegally imported into Australia.

It is tiered depending on the quantity of the border controlled drug or border controlled plant involved. The proposed offence involving a commercial quantity carries a maximum penalty of life imprisonment and the proposed offence involving a marketable quantity carries a maximum penalty of 25 years imprisonment. There is also a proposed base offence, carrying a maximum penalty of 2 years imprisonment, which has no minimum quantity and no defence of absence of commercial intention. The penalty structure of the proposed offences in Subdivision B matches the penalty structure of the current Customs Act offences for all illicit drugs other than cannabis. The current penalty for offences involving middle-tier quantities of cannabis is 10 years rather than 25 years (see the overview of proposed Division 307, above).

The offences in this proposed subdivision overlap with the broader trafficking offences in proposed Division 302, which include trafficking by possession as defined in proposed paragraph 302.1(1)(e). However, they differ from the proposed Division 302 trafficking offences because they have been designed to ensure they would be no more difficult to prove than the existing Customs Act offences they replace. In contrast to the proposed Division 302 trafficking offences:

•

commercial intent is not an element of any of the offences in this proposed subdivision - absence of a commercial intent is available as a defence to the middle-tier marketable quantity offence, and

•

the alternative verdict provisions in proposed sections 313.4 and 313.5 do not apply to these offences as alternative verdicts of that kind are not currently available for the Customs Act offences.

Proposed section 307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

Proposed subsection 307.5(1) makes it an offence for a person to possess a commercial quantity of an unlawfully imported border controlled drug or border controlled plant. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.5(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under section 301.5 or specified in an emergency determination under section 301.10. Commercial quantities will vary depending on the type of drug or plant involved. Proposed subsection 307.5(2) applies absolute liability to the circumstance that the quantity is a commercial quantity (see the overview of proposed Division 307 for the reasons for applying absolute liability).

Proposed subsection 307.5(2) also applies absolute liability to the elements in proposed paragraph 307.5(1)(b). This means that the prosecution does not need to prove that the defendant knew, or was reckless as to whether, the substance was unlawfully imported. This is consistent with the current offence in paragraph 233B(1)(iv) of the Customs Act.

Proposed subsection 307.5(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported. This defence replicates the existing defence in subsection 233B(1A) of the Customs Act.

The proposed maximum penalty for this offence is imprisonment for life or 7,500 penalty units, or both.

Proposed section 307.6 Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants

Proposed subsection 307.6(1) will make it an offence for a person to possess a marketable quantity of an unlawfully imported border controlled drug or border controlled plant. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.6(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Proposed subsection 307.6(2) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 307 for the reasons for applying absolute liability).

Proposed subsection 307.6(2) also applies absolute liability to the element in proposed paragraph 307.6(1)(b). This means that the prosecution does not need to prove that the defendant knew, or was reckless as to whether, the substance was unlawfully imported. This reflects the situation with the current offence in paragraph 233B(1)(iv) of the Customs Act.

Proposed subsection 307.6(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not intend to sell any of the border controlled drug or border controlled plant and did not believe that another person intended to do so. This reflects the purpose of this offence in targeting commercially motivated importation or exportation. The lesser offence in proposed section 307.7 targets those who import or export border controlled drugs or border plants without a commercial purpose. Commercial intention does not form an element of this offence because that approach would make the offence more difficult to prove than the existing offence in paragraph 233B(1)(iv) of the Customs Act. Framing lack of commercial intent as a defence, and imposing a legal burden on the defendant in relation to it, more closely reflects situation of the defendant under that existing offence.

Proposed subsection 307.6(5) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not know that the border controlled drug or border plant was unlawfully imported. This defence replicates the existing defence in subsection 233B(1A) of the Customs Act.

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed section 307.7 Possessing unlawfully imported border controlled drugs or border controlled plants

Proposed subsection 307.7(1) will make it an offence for person to possess a border controlled drug or border controlled plant that has been unlawfully imported. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.7(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

Proposed subsection 307.7(2) applies absolute liability to the element in proposed paragraph 307.7(1)(b). This means that the prosecution does not need to prove that the defendant knew, or was reckless as to whether the substance was unlawfully imported. This reflects the situation with the current offence in paragraph 233B(1)(iv) of the Customs Act.

Proposed subsection 307.7(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not know that the border controlled drug or border plant was unlawfully imported. This defence replicates the existing defence in subsection 233B(1A) of the Customs Act.

The proposed maximum penalty for this offence is imprisonment for 2 years or 400 penalty units, or both.

Proposed Subdivision C - Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

Proposed Subdivision C of Division 307 will bring across to the Criminal Code the possession offence currently contained in paragraph 233B(1)(vi) of the Customs Act. This offence targets possession of border controlled drugs and border controlled plants that are reasonably suspected of having been illegally imported into Australia. It is tiered depending on the quantity of border controlled drug or border controlled plant involved. The proposed offence involving a commercial quantity carries a maximum penalty of life imprisonment and the proposed offence involving a marketable quantity carries a maximum penalty of 25 years imprisonment. There is also a proposed base offence, carrying a maximum penalty of 2 years imprisonment, which has no minimum quantity and no defence of absence of commercial intention. The penalty structure of the offences in proposed Subdivision C matches the penalty structure of the current Customs Act offences for all illicit drugs other than cannabis. The current penalty for offences involving middle-tier quantities of cannabis is 10 years rather than 25 years (see the overview of proposed Division 307, above).

The offences in this proposed subdivision overlap with the broader trafficking offences in proposed Division 302, which include trafficking by possession as defined in proposed paragraph 302.1(1)(e). However, they differ from the proposed Division 302 trafficking offences because they have been designed to ensure they would be no more difficult to prove than the existing Customs Act offences they would replace. In contrast to the proposed Division 302 trafficking offences:

•

commercial intent is not an element of any of the offences in this proposed subdivision; absence of a commercial intent is available as a defence to the middle-tier marketable quantity offence, and

•

the alternative verdict provisions in proposed sections 313.4 and 313.5 do not apply to these offences as alternative verdicts of that kind are not currently permitted for the Customs Act offences.

Proposed section 307.8 Possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

Proposed subsection 307.8(1) will make it an offence for a person to possess a commercial quantity of a border controlled drug or border controlled plant that is reasonably suspected of having been unlawfully imported. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.8(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Commercial quantities will vary depending on the type of drug or plant involved. Proposed subsection 307.8(2) applies absolute liability to the circumstance that the quantity is a commercial quantity (see the overview of proposed Division 307 for the reasons for applying absolute liability).

Proposed subsection 307.8(2) also applies absolute liability to the element in proposed paragraph 307.7(1)(b). This means that the prosecution does not need to prove that the defendant knew, or was reckless as to whether the substance was unlawfully imported. This reflects the situation with the current offence in paragraph 233B(1)(iv) of the Customs Act.

Proposed subsection 307.8(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that the border controlled drug or border controlled plant was not unlawfully imported. This defence replicates the existing defence in subsection 233B(1B) of the Customs Act.

The proposed maximum penalty for this offence is life imprisonment or 7,500 penalty units, or both.

Proposed section 307.9 Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

Proposed subsection 307.9(1) will make it an offence for a person to possess a marketable quantity of a border controlled drug or border controlled plant that is reasonably suspected of having been unlawfully imported. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.9(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Proposed subsection 307.9(2) applies absolute liability to the circumstance that the quantity is a marketable quantity (see overview of proposed Division 307 for the reasons for applying absolute liability).

Proposed subsection 307.9(2) also applies absolute liability to the element in proposed paragraph 307.7(1)(b). This means that the prosecution does not need to prove that the defendant knew, or was reckless as to whether the substance was unlawfully imported and that the quantity possessed was a marketable quantity. This reflects the situation with the current offence in paragraph 233B(1)(iv) of the Customs Act.

Proposed subsection 307.9(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not intend to sell any of the border controlled drug or border controlled plant and did not believe that another person intended to do so. This reflects the purpose of this offence in targeting commercially motivated importation or exportation. The lesser offence in proposed section 307.10 targets those who import or export border controlled drugs or border controlled plants without a commercial purpose. Commercial intention does not form an element of this offence because that approach would make the offence more difficult to prove than the existing offence in paragraph 233B(1)(vi) of the Customs Act. Framing lack of commercial intent as a defence, and imposing a legal burden on the defendant in relation to it, more closely reflects situation of the defendant under that existing offence.

Proposed subsection 307.9(5) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that the border controlled drug or border controlled plant was not unlawfully imported. This defence replicates the existing defence in subsection 233B(1B) of the Customs Act.

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed section 307.10 Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

Proposed subsection 307.10(1) will make it an offence for a person to possess a border controlled drug or border controlled plant that is reasonably suspected of having been unlawfully imported. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the substance.

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 307.10(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

Proposed subsection 307.10(2) applies absolute liability to the element in proposed paragraph 307.10(1)(b). This means that the prosecution does not need to prove that the defendant knew, or was reckless as to whether the substance is reasonably suspected of having been unlawfully imported. This reflects the situation with the current offence in paragraph 233B(1)(vi) of the Customs Act.

Proposed subsection 307.10(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that the border controlled drug or border controlled plant was not unlawfully imported. This defence replicates the existing defence in subsection 233B(1B) of the Customs Act.

The proposed maximum penalty for this offence is imprisonment for 2 years or 400 penalty units, or both.

Proposed Subdivision D - Importing and exporting border controlled precursors

Proposed Subdivision D creates new offences of importing and exporting border controlled precursors based on the generic precursor offences recommended in the MCCOC Report.

The offences have tiered penalties depending on the quantity of border controlled precursor involved. The proposed offence involving a commercial quantity carries a maximum penalty of 25 years imprisonment, the proposed offence involving a marketable quantity carries a maximum penalty of 15 years imprisonment, and the proposed offence with no minimum quantity carries a maximum penalty of 7 years imprisonment. The tiered penalty structure of these proposed offences is consistent with the offences of pre-trafficking precursors in proposed Division 306.

Proposed section 307.11 Importing and exporting commercial quantities of border controlled precursors

Proposed section 307.11 makes it an offence to import or export a commercial quantity of a border controlled precursor if the person has the intention to use any of the precursor to manufacture a controlled drug or believes that another person has that intention. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to import or export the substance.

A border controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a border controlled precursor in proposed section 314.6, prescribed by interim regulations under proposed subsection 301.4(1) or specified in an emergency determination under proposed subsection 301.9(1). Proposed subsection 307.11(2) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

A commercial quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a commercial quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Commercial quantities will vary depending on the type of precursor involved.

Proposed subsection 307.11(3) provides that absolute liability attaches to the circumstance that the quantity imported or exported is a commercial quantity. This means that the prosecution does not need to prove that the defendant either knew, or was reckless as whether, the quantity involved was a commercial quantity. The qualified defence of mistake as to quantity in proposed section 313.4 does not apply to this offence, nor to any of the offences within proposed Division 307. It does not apply to the proposed Division 307 offences involving border controlled drugs and border controlled plants because to do so would make those offences more difficult to prove than the existing offences they replace in the Customs Act. The offences of importing and exporting border controlled precursors in this proposed subdivision have been made consistent with the other import-export offences in this respect.

The proposed maximum penalty for this offence is 25 years imprisonment or 5,000 penalty units, or both.

Proposed section 307.12 Importing and exporting marketable quantities of border controlled precursors

Proposed section 307.12 creates an offence of importing or exporting a marketable quantity of a border controlled precursor intending to use any of the precursor to manufacture a controlled drug or believing that another person has that intention. Proposed paragraph (a) contains the conduct element of the offence. By operation of the section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to import or export the substance.

A border controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in proposed section 314.6, prescribed by interim regulations under proposed subsection 301.4(1) or specified in an emergency determination under proposed subsection 301.9(1). Proposed subsection 307.12(2) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of precursor involved.

Proposed subsection 307.12(3) provides that absolute liability attaches to the circumstance that the quantity imported or exported is a marketable quantity. This means that the prosecution does not need to prove that the defendant either knew, or was reckless as whether, the quantity involved was a marketable quantity. The qualified defence of mistake as to quantity in proposed section 313.4 does not apply to this offence, nor to any of the offences within proposed Division 307. It does not apply to the proposed Division 307 offences involving border controlled drugs and border controlled plants because to do so would make those offences more difficult to prove than the existing offences they replace in the Customs Act. The offences of importing and exporting border controlled precursors in this proposed subdivision have been made consistent with the other import-export offences in this respect.

Proposed subsection 307.12(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not have a commercial purpose.

If it has been established that the defendant intended to use any of the substance to manufacture a controlled drug then the defendant will need to prove that he or she did not intend to sell any of the controlled drug so manufactured, nor believed that any other person had that intention.

If it has been established that the defendant believed that another person intended to use any of the border controlled precursor to manufacture a controlled drug then the defendant will need to prove that he or she did not intend to sell any of the border controlled precursor to that other person.

It is possible that it will have been established that the defendant intended to use some or all of the border controlled precursor to manufacture a controlled drug and believed that another person intended to use some or all of the border controlled precursor to manufacture a controlled drug (possibly by application of the presumption in proposed section 307.14).

In that case, in order for the defence in proposed subsection 307.12(4) to apply, the defendant will need to prove both:

•

for the controlled drug that the defendant intended to use the border controlled precursor to manufacture - he or she did not intend to sell any of that controlled drug, and

•

for the person that the defendant believed intended to use the border controlled precursor to manufacture a controlled drug - he or she did not intend to sell any of the border controlled precursor to that person.

The proposed maximum penalty for this offence is 15 years imprisonment or 3,000 penalty units, or both.

Proposed section 307.13 Importing and exporting border controlled precursors

Proposed section 307.13 makes it an offence to import or export border controlled precursors if the person has the intention to use any of the border controlled precursor to manufacture a controlled drug or believes that another person has that intention. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to import or export the substance.

A border controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a border controlled precursor in proposed section 314.6, prescribed by interim regulations under proposed subsection 301.4(1) or specified in an emergency determination under proposed subsection 301.9(1). Proposed subsection 307.13(2) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

Proposed subsection 307.13(3) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not have a commercial purpose.

If it has been established that the defendant intended to use any of the substance to manufacture a controlled drug then the defendant will need to prove that he or she did not intend to sell any of the controlled drug so manufactured, nor believed that any other person had that intention.

If it has been established that the defendant believed that another person intended to use any of the border controlled precursor to manufacture a controlled drug then the defendant will need to prove that he or she did not intend to sell any of the border controlled precursor to that other person.

It is possible that it will have been established that the defendant intended to use some or all of the border controlled precursor to manufacture a controlled drug and believed that another person intended to use some or all of the border controlled precursor to manufacture a controlled drug (possibly by application of the presumption in proposed section 307.14).

In that case, in order for the defence in proposed subsection 307.13(3) to apply, the defendant will need to prove both:

•

for the controlled drug that the defendant intended to use the border controlled precursor to manufacture - he or she did not intend to sell any of that controlled drug, and

•

for the person that the defendant believed intended to use the border controlled precursor to manufacture a controlled drug - he or she did not intend to sell any of the border controlled precursor to that person.

The proposed maximum penalty for this offence is 7 years imprisonment or 1,400 penalty units, or both.

Proposed section 307.14 Presumptions for importing and exporting border controlled precursors

Proposed section 307.14 will make it easier for the prosecution to prove that a defendant, being prosecuted for an offence against this proposed subdivision, intended to use the border controlled precursor to manufacture a controlled drug or believed that another person had that intention. It does this by making presumptions available to the prosecution when proving any of the offences against this proposed subdivision. These presumptions are set out in proposed subsections 307.14(1) and 307.14(3).

If the defendant imported or exported the border controlled precursor in circumstances where a Commonwealth law required that import or export to be authorised and it was not so authorised, the defendant is presumed to have had both:

-

the intention of using some or all of the border controlled precursor to manufacture a controlled drug, and

-

the belief that another person intended to use some or all of the border controlled precursor to manufacture a controlled drug.

In order to rebut both of these presumptions the defendant needs to prove, on the balance of probabilities, that he or she had neither the intention of using some or all of the border controlled precursor to manufacture a controlled drug, nor the belief that another person had that intention. If the defendant fails to rebut either of the presumptions, the prosecution will have discharged its burden of proof in relation to the fault element pertaining to manufacture of a controlled drug (depending on the offence being prosecuted - the fault element in proposed paragraphs 307.11(1)(b), 307.12(1)(b) or 307.13(1)(b)).

Proposed Division 308 - Possession offences

Proposed section 308.1 Possessing controlled drugs

Proposed section 308.1 makes it an offence to possess a controlled drug. A person has possession of a thing if the person engages in any of the kinds of conduct captured in the inclusive definition in proposed section 300.2. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to show that the person intended to possess the substance.

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 308.1(2) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed penalty available for this offence is imprisonment for 2 years or 400 penalty units, or both.

The purpose of subsections 308.1(3)-(5) is to ensure that State and Territory drug diversion programs will be available to drug users who are charged with, or convicted of, with this offence. The Australian Government has worked with States and Territories, through the Council of Australian Governments, to develop and fund the Illicit Drug Diversion Initiative. The primary objective of the Diversion initiative is to increase incentives for drug users to identify and treat their illicit drug use early. It provides an opportunity for drug users early in their relationship with the criminal justice system to get the education, treatment and support they need for addressing their drug problem, and at the same time, avoid incurring a criminal record. If an offender chooses not to be 'diverted' into education or treatment, or fails to attend or participate in the required education or treatment sessions, they will be returned to the criminal justice system.

Proposed section 308.2 Possessing controlled precursors

Proposed section 308.2 makes it an offence to possess a controlled precursor with the intention to manufacture a controlled drug. A person has possession of a thing if the person engages in any of the kinds of conduct captured in the inclusive definition in proposed section 300.2. Proposed paragraph (a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the substance.

A controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under proposed subsection 301.2(1) or specified in an emergency determination under proposed subsection 301.7(1). Proposed subsection 308.2(2) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed penalty available for this offence is imprisonment for 2 years or 400 penalty units, or both.

Presumption of intention to manufacture a controlled drug

This presumption is consistent with presumptions operating in proposed Divisions 306 and 307. Proposed subsection 308.2(3) says that the defendant will be presumed to have possessed the precursor with the intention of using it to manufacture a controlled drug if the person does not have authorisation under Commonwealth, State and Territory laws to possess that controlled drug.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not manufacture the substance with the intention of using any of it to manufacture a controlled drug (proposed subsection 308.2(4)).

If a person possesses a controlled precursor illegally it is reasonable to reverse the burden of proof by presuming that they are doing so for an illicit purpose - in this case for the purpose of manufacturing a controlled drug. The standard of proof for the defendant to rebut the presumption is the lesser standard: on the balance of probabilities. Importantly, the presumption will not apply in cases where there is no Commonwealth, State or Territory law requiring that person to be authorised in order to possess the precursor (for example, where there is no requirement to be licensed to possess or to fall within a prescribed class that is specially qualified or registered to possess).

The presumption has been designed to incorporate State and Territory authorisation schemes as well as Commonwealth schemes as most domestic dealings in precursors are regulated through State and Territory legislation, although that regulation is by no means comprehensive. State and Territory regulatory schemes will continue to operate concurrently with proposed Part 9.1 of the Criminal Code. It will be a defence to all offences in proposed Part 9.1 if the alleged conduct is justified or excused by or under a law of the Commonwealth (see section 10.5 of the Criminal Code) or a relevant State or Territory (see proposed section 313.1).

Proposed section 308.3 Possessing plant material, equipment or instructions for commercial cultivation of controlled plants

Proposed section 308.3 provides that a person commits an offence if the person possesses a plant, a product of a plant, any equipment or any document containing instructions for growing a plant; intends to use the plant, product, equipment or document to cultivate a controlled plant; and intends to sell or believes that another person intends to sell, any of the plant to cultivate or any of its product.

A person has possession of a thing if the person engages in any of the kinds of conduct captured in the inclusive definition in proposed section 300.2. Proposed paragraph 308.3(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the substance.

Product of a plant is defined by proposed section 303.2.

Controlled plant is defined by proposed section 300.2.

The proposed maximum penalty for this offence is imprisonment for 7 years or 1,400 penalty units, or both. This penalty reflects that this possession offence has a commercial element (as distinct from proposed sections 308.1 and 308.2) as well a fault element containing a nexus to the cultivation of controlled plants.

Proposed section 308.4 Possessing substance, equipment or instructions for commercial manufacture of controlled drugs

Proposed section 308.4 provides that a person commits an offence if the person possesses any substance (other than a controlled precursor), any equipment or any document containing instructions for manufacturing a controlled drug, intends to use the substance, equipment or document to manufacture a controlled drug and intends to sell or believes that another person intends to sell, any of the controlled drug so manufactured.

The substances covered by this possession offence expressly exclude precursors. Where there is no commercial purpose, possession of precursors is dealt with by the stand-alone offence in proposed section 308.2. Where there is a commercial purpose, the possession of precursors is dealt with in the pre-trafficking offences (proposed Division 306).

A person has possession of a thing if the person engages in any of the kinds of conduct captured in the inclusive definition in proposed section 300.2. Proposed paragraph 308.4(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to possess the thing.

Controlled drug is defined by proposed section 300.2.

The proposed maximum penalty for this offence is imprisonment for 7 years or 1,400 penalty units, or both. This penalty reflects that this possession offence has a commercial element (as distinct from proposed sections 308.1 and 308.2) as well a fault element containing a nexus to the cultivation of controlled plants.

Presumption of intention to manufacture a controlled drug

This presumption specifically addresses the circumstance where the item possessed is a tablet press. A tablet press is a piece of equipment that can be used to press controlled drugs into tablet or pill shapes or forms.

Proposed subsection 308.4(2) says that the defendant will be presumed to have possessed the tablet press with the intention of using it to manufacture a controlled drug if the person is required to be authorised to possess the tablet press and is not so authorised.

The defendant can rebut the presumption by proving, on the balance of probabilities, that he or she did not possess the tablet press the substance with the intention of using it to manufacture a controlled drug (proposed subsection 308.4(3)).

If a person possesses a tablet press illegally it is reasonable to reverse the burden of proof by presuming that they are doing so for an illicit purpose - in this case for the purpose of manufacturing a controlled drug. The standard of proof for the defendant to rebut the presumption is the lesser standard: on the balance of probabilities. Importantly, the presumption will not apply in cases where there is no Commonwealth, State or Territory law requiring that person to be authorised in order to possess the pill press (for example, where there is no requirement to be licensed to possess it or to fall within a prescribed class that is specially qualified or registered).

Proposed Division 309 - Drug offences involving children

Proposed Division 309 creates a regime of offences directed against adults who exploit children for commercial gain in the illicit drug industry. A key purpose of proposed Division 309 is also to protect children from early experimentation which may lead to habitual use. The offences included in this proposed Division extend to persons who supply controlled drugs to children or who use children to facilitate trafficking controlled drugs. This proposed Division also includes offences against persons who procure children to sell, prepare for supply, transport, guard or conceal a controlled drug or procure children to sell, manufacture or possess a controlled precursor. In this proposed Division the penalties available for the offences of importing and exporting border controlled drugs, border controlled plants or border controlled precursors will also be increased where those offences involve the exploitation of children.

Strict liability as to the age of the child

A child is defined as an individual under 18 years of age. Strict liability attaches to the age of the child for all of the offences in this proposed Division. This means that the prosecution does not have to prove that the defendant knew that the individual to whom they supplied the controlled drug was in fact a child. However, section 6.1(2) of the Criminal Code makes available to the defendant the defence of mistake of fact. Under section 9.2 of the Criminal Code, a person will not be criminally responsible if the person was under a mistaken but reasonable belief about those facts and if those facts had existed, the conduct would not have constituted an offence. The mistake must be one which is reasonable for the defendant to make in the circumstances. The defence of mistake of fact will not apply in circumstances where the mistake results from a lack of awareness of relevant facts.

Strict liability is appropriate in this context given the serious harm caused to children when they are supplied with controlled drugs or procured to engage in other unlawful activities involving controlled drugs, plants and precursors.

Absolute liability as to quantity

For the offences in this proposed Division involving a marketable quantity, absolute liability attaches to the circumstance of quantity of controlled drug. This means that the prosecution does not need to prove that the defendant either knew, or was reckless as to whether, the quantity involved was a marketable quantity.

The qualified defence of mistake as to quantity in proposed section 313.4 operates to protect a defendant who mistakenly believed that a lesser quantity of drug was involved. That qualified defence operates where the defendant can prove, on the balance of probabilities, that at the time of the alleged offence he or she mistakenly believed that the quantity of the drug involved was less than a marketable quantity. In those circumstances the trier of fact (judge or jury) may find the defendant not guilty of the alleged offence, and instead find the defendant guilty of a lesser offence.

For example, in a prosecution for the most serious offence of supplying marketable quantities of controlled drugs to children for trafficking, if the defendant can prove that he or she mistakenly believed that a lesser quantity was involved, the defendant can instead be found guilty of the lesser offence of supplying controlled drugs to children for trafficking (carrying a maximum penalty of 25 years imprisonment rather than life imprisonment). In order for the qualified defence to operate, it is not necessary for the defendant to prove that his or her belief as to quantity was a reasonable belief.

Applying absolute liability to the element of quantity and applying a qualified defence of mistake as to quantity will markedly improve the enforceability of these offences. This approach was recommended by MCCOC in 2003 as a modification to the model offences originally proposed in its 1998 report, and was also endorsed by the Standing Committee of Attorneys-General.

Proposed section 309.1 Children not criminally responsible for offences against this Division

Proposed section 309.1 provides that a child cannot be criminally responsible for an offence that is committed against proposed Division 309. This is because the offences in proposed Division 309 are of an aggravated nature and are directed against adults who exploit children for commercial gain in the illicit drug industry. However, it is proposed that child offenders remain liable for other serious drug offences against the provisions of proposed Part 9.1 subject to the general limitations, in Division 7 of Part 2.3 of the Criminal Code, on the extent to which children can be criminally responsible.

Proposed section 309.2 Supplying controlled drugs to children

Proposed section 309.2 provides that it will be an offence for an individual to supply a controlled drug to a child. There is no element of quantity for this offence. The offence in this proposed section will only extend to the supply of a controlled drug and does not apply to the supply of a controlled plant or controlled precursor.

Supply is defined inclusively by way of example in proposed section 300.2. Proposed paragraph 309.2(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to supply the substance to the child.

A child is an individual who is under 18 years of age. Proposed subsection 309.2(2) applies strict liability to the circumstance that the individual is under 18 years of age (see the overview of proposed Division 309 for the reasons for applying strict liability).

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 309.2(3) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is imprisonment for 15 years or 3,000 penalty units, or both.

Proposed section 309.3 Supplying marketable quantities of controlled drugs to children for trafficking

Proposed section 309.3 makes it an offence for an individual to supply a marketable quantity of a controlled drug to a child to enable a child to sell any part of that controlled drug. The offence in this proposed section will only extend to the supply of a marketable quantity of a controlled drug and does not apply to the supply of a controlled plant or controlled precursor.

The offence proposed in this proposed section carries a higher penalty than the corresponding offence of trafficking marketable quantities of controlled drugs provided in proposed section 302.3. This higher penalty refects the serious nature of using children to facilitate drug trafficking.

Supply is defined inclusively by way of example in proposed section 300.2. Proposed paragraph 309.3(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to supply the substance to the child.

A child is an individual who is under 18 years of age. Proposed subsection 309.3(2) applies strict liability to the circumstance that the individual is under 18 years of age (see overview of proposed Division 309 for the reasons for applying strict liability).

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 309.3(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of drug or plant involved. Proposed subsection 309.3(4) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 309 for the reasons for applying absolute liability).

Sell is defined inclusively by way of example in proposed section 300.2. In summary, sell means to dispose, or agree to dispose, of a thing to a purchaser for a price, or otherwise exchange a thing for something else. The examples provided in proposed section 300.2 explicitly include barter or exchange, and an agreement to sell, within the definition of sell for the purposes of proposed Part 9.1 of the Criminal Code.

The prosecution must show that the defendant believed that the child intended to sell any of the controlled drug (proposed paragraph 309.3(1)(e)). The requirement of belief means that it is not necessary to show that the defendant intended that the child would sell the drug. Also, the defendant will be liable even in cases where the child in fact had no intention to sell the drug. Importantly, the liability of the supplier is direct and does not require proof that the child committed any offence. The trafficable quantity presumption in proposed section 309.5 can apply to assist in proving this element.

The proposed maximum penalty for this offence is imprisonment for life or 7,500 penalty units, or both.

Proposed section 309.4 Supplying controlled drugs to children for trafficking

Proposed section 309.4 provides that it will be an offence for an individual to supply any quantity of a controlled drug to a child, to enable a child to sell any part of that controlled drug. Unlike the preceding offence for supply of marketable quantities of controlled drugs to children, there is no minimum amount or quantity of controlled drugs necessary to be supplied for an offence to be established under this proposed section. The offence provided in this proposed section will only extend to the supply of a controlled drug and does not apply to the supply of a controlled plant or controlled precursor.

Supply is defined inclusively by way of example in proposed section 300.2. Proposed paragraph 309.4(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to supply the substance to the child.

A child is an individual who is under 18 years of age. Proposed subsection 309.4(2) applies strict liability to the circumstance that the individual is under 18 years of age (see overview of proposed Division 309 for the reasons for applying strict liability).

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 309.4(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

Sell is defined inclusively by way of example in proposed section 300.2. In summary, sell means to dispose, or agree to dispose, of a thing to a purchaser for a price, or otherwise exchange a thing for something else. The examples provided in proposed section 300.2 explicitly include barter or exchange, and an agreement to sell, within the definition of sell for the purposes of proposed Part 9.1 of the Criminal Code.

The prosecution must show that the defendant believed that the child intended to sell any of the controlled drug (proposed paragraph 309.4(1)(d)). The requirement of belief means that it is not necessary to show that the defendant intended that the child would sell the drug. Also, the defendant will be liable even in cases where the child in fact had no intention to sell the drug.

Importantly, the liability of the supplier is direct and does not require proof that the child committed any offence. This element interfaces with the trafficable quantity presumption in proposed section 309.5.

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed section 309.5 Presumption where trafficable quantities are involved

Proposed section 309.5 provides a rebuttable presumption for the purposes of proposed sections 309.3 or 309.4 where a trafficable quantity of a substance is involved.

Proposed subsection 309.5(1) provides that where the prosecution can show that a trafficable quantity is supplied to a child, the element of belief that the child intends to sell the drug need not be proven, but is presumed. It is proposed that a trafficable quantity would always be set at an amount less than a marketable quantity. The trafficable quantity threshold reflects the strong likelihood that an offence involving larger amounts will be commercially motivated.

If the prosecution shows that there is a trafficable quantity of controlled drug involved in the offence and engages the trafficable quantity presumption, proposed subsection 309.5(2) makes available to the defendant a defence of absence of commercial purpose. If the defendant can prove on the balance of probabilities that he or she did not have the relevant belief, the defendant would then only be guilty of the less serious supply offence under proposed section 309.2. The defendant bears the legal burden when establishing the defence in proposed subsection 309.5(1). The standard of proof for the defendant to rebut the presumption is the lesser standard: on the balance of probabilities.

Proposed section 309.6 Meaning of procures an individual to traffic

Proposed section 309.6 provides a definition of what is meant by procures an individual to traffic in proposed Part 9.1 of the Criminal Code. This definition contains central elements of the offences of procuring children for trafficking controlled drugs contained in proposed sections 309.7 and 309.8.

The offences in proposed sections 309.7 and 309.8 extend beyond the case of inducing a child to sell a controlled drug. For these offences, liability is imposed on defendants who procure a child to prepare a controlled drug for sale, or to transport a controlled drug for sale. The range of conduct covered by these offences (selling, transporting, preparing, guarding or concealing) mirror the range of conduct captured by the drug trafficking offences in proposed Division 302. It is not necessary for the prosecution to show that a child committed an offence in order to secure a conviction for these offences.

Proposed subsection 309.6(1) defines what is meant by procures an individual to traffic . This proposed subsection provides that a person procures an individual to traffic in a substance if:

(a)

the person procures the individual to sell the substance; or

(b)

the person, with the intention of selling any of the substance or believing that another person intends to sell any of the substance, procures the individual to prepare the substance for supply or to transport the substance, or any part of the substance; or

(c)

the person, with the intention of selling any of the substance or assisting another person to sell any of the substance, procures the individual to guard or conceal the substance.

This definition is consistent with the use of the term 'procure' in Chapter 2 of the Criminal Code (see the provisions relating to complicity and common purpose, and innocent agency).

Sell is defined inclusively by way of example in proposed section 300.2. In summary, sell means to dispose, or agree to dispose, of a thing to a purchaser for a price, or otherwise exchange a thing for something else. The examples provided in proposed section 300.2 explicitly include barter or exchange, and an agreement to sell, within the definition of sell for the purposes of proposed Part 9.1 of the Criminal Code.

Supply is defined inclusively by way of example in proposed section 300.2. In summary, proposed Part 9.1 of the Criminal Code proposes that supply retain its ordinary meaning, that there is no requirement for a sale to take place for there to be a supply, and that an agreement to supply is sufficient to constitute supply under proposed Part 9.1 of the Criminal Code.

Transport is defined in proposed section 300.2 to include deliver. Proposed Part 9.1 of the Criminal Code proposes that transport retain its ordinary meaning and include the act of carrying or conveying a thing from one place to another. The definition of transport is intended to include acts of arranging for the physical transport of a thing. Accordingly, the fact that actual transportation has not occurred will not preclude a person being found to have transported a thing under proposed Part 9.1 of the Criminal Code.

Conceal is defined inclusively by way of example in proposed section 300.2 in proposed Part 9.1 of the Criminal Code. In summary, conceal means to conceal or disguise the nature, source, location or movement of a thing, the rights of any person with respect to a thing or the identity of any owner of a thing. This would include hiding or removing a thing from observation, to cover-up or keeping a thing from sight and failing to disclose a thing.

Proposed subsection 309.6(2) provides that, for the purposes of proposed paragraph 309.6(1)(b), preparing the substance for supply includes packaging the substance or separating the substance into discrete units.

Proposed section 309.7 Procuring children for trafficking marketable quantities of controlled drugs

Proposed section 309.7 makes it an offence for an individual to procure a child to traffic in marketable quantities of a controlled drug. This offence carries a higher penalty than the corresponding offence of trafficking marketable quantities of controlled drugs provided in proposed section 302.3.

Proposed subsection 309.6(1) defines what is meant by procures an individual to traffic . Proposed paragraph 309.7(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to procure an individual to traffic in a substance.

For the purposes of proposed paragraph 309.7(1)(b), a child is an individual who is under 18 years of age. Proposed subsection 309.7(2) applies strict liability to the circumstance that the individual is under 18 years of age (see overview of proposed Division 309 for the reasons for applying strict liability).

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 309.7(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of drug or plant involved. Proposed subsection 309.7(4) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 309 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is imprisonment for life or 7,500 penalty units, or both.

Proposed section 309.8 Procuring children for trafficking controlled drugs

Proposed section 309.8 makes it an offence for an individual to procure a child to traffic in controlled drugs. Unlike the preceding offence of procuring children for trafficking marketable quantities of controlled drugs, there is no minimum amount or quantity of controlled drugs necessary to be trafficked for an offence to be established under this proposed section.

This offence in this proposed section carries a higher penalty than the corresponding offence of trafficking controlled drugs provided in proposed subsection 302.4.

Proposed subsection 309.8(1) defines what is meant by procures an individual to traffic . Proposed paragraph 309.8(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to procure an individual to traffic in a substance.

For the purposes of proposed paragraph 309.8(1)(b), a child is an individual who is under 18 years of age. Proposed subsection 309.8(2) applies strict liability to the circumstance that the individual is under 18 years of age (see the overview of proposed Division 309 for the reasons for applying strict liability).

A controlled drug is defined in proposed section 300.2 as a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed subsection 309.8(3) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a controlled drug. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed section 309.9 Meaning of procures an individual to pre-traffic

Proposed section 309.9 provides a definition of what is meant by procures an individual to pre-traffic in proposed Part 9.1 of the Criminal Code. This definition is essential to establishing the elements of the proposed offences of procuring children for pre-trafficking controlled precursors contained in proposed sections 309.10 and 309.11. This definition is consistent with the use of the term 'procure' in Chapter 2 of the Criminal Code (see the provisions relating to complicity and common purpose, and innocent agency).

In order to procure an individual to pre-traffic in a precursor, the defendant must procure the individual to sell the substance believing that the person to whom the controlled precursor is sold intends to use any of the substance to manufacture a controlled drug.

For the purpose of proposed section 309.9, sell is defined inclusively by way of example in proposed section 300.2. In summary, sell means to dispose, or agree to dispose, of a thing to a purchaser for a price, or otherwise exchange a thing for something else. The examples provided in proposed section 300.2 explicitly include barter or exchange, and an agreement to sell, within the definition of sell for the purposes of proposed Part 9.1 of the Criminal Code.

Proposed section 309.10 Procuring children for pre-trafficking marketable quantities of controlled precursors

Proposed section 309.10 makes it an offence for an individual to procure a child for pre-trafficking marketable quantities of controlled precursors. This proposed offence complements the offence of procuring children for trafficking marketable quantities of controlled drugs in proposed section 309.7 by capturing those who procure children to engage in conduct preparatory to illicit drug manufacture.

Proposed section 309.9 provides a definition of what is meant by procures an individual to pre-traffic . Proposed paragraph 309.10(1)(a) contains the conduct element of the offence. By operation of the section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to procure an individual to pre-traffic in a substance.

A child is an individual who is under 18 years of age. Proposed subsection 309.10(2) applies strict liability to the circumstance that the individual is under 18 years of age (see the overview of proposed Division 309 for the reasons for applying strict liability).

A controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under subsection 301.2(1) or specified in an emergency determination under subsection 301.7(1). Proposed subsection 309.10(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of drug or plant involved. Proposed subsection 309.10(4) applies absolute liability to the circumstance that the quantity is a marketable quantity (see overview of proposed Division 309 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is imprisonment for life or 7,500 penalty units, or both.

Proposed section 309.11 Procuring children for pre-trafficking controlled precursors

Proposed section 309.11 makes it an offence for an individual to procure a child for pre-trafficking any quantity of controlled precursors. Unlike the preceding offence of procuring a child to pre-traffic in marketable quantities of controlled precursors, there is no minimum amount or quantity of controlled precursors necessary to be supplied for an offence to be established under this proposed section.

Proposed section 309.9 provides a definition of what is meant by procures an individual to pre-traffic . Proposed paragraph 309.11(1)(a) contains the conduct element of the offence. By operation of the section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to procure an individual to pre-traffic in a substance.

A child is an individual who is under 18 years of age. Proposed subsection 309.11(2) applies strict liability to the circumstance that the individual is under 18 years of age (see overview of proposed Division 309 for the reasons for applying strict liability).

A controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under proposed subsection 301.2(1) or specified in an emergency determination under proposed subsection 301.7(1). Proposed subsection 309.11(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed section 309.12 Procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants

Proposed section 309.12 makes it an offence for an individual to procure a child to import or export marketable quantities of border controlled drugs or border controlled plants. The offence carries a higher penalty than the corresponding offence of importing or exporting marketable quantities of controlled drugs or controlled plants in proposed section 307.2. The penalty reflects the high degree of culpability in using children to facilitate illicit drug and plant import or export.

Proposed paragraph 309.12(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to procure an individual to import or export a substance.

A child is an individual who is under 18 years of age. Proposed subsection 309.12(2) applies strict liability to the circumstance that the individual is under 18 years of age (see the overview of proposed Division 309 for the reasons for applying strict liability).

Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 309.12(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of drug or plant involved. Proposed subsection 309.12(4) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 309 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is imprisonment for life or 7,500 penalty units, or both.

Proposed subsection 309.12(5) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not intend to sell any of the border controlled drug or border controlled plant and did not believe that another person intended to do so. This reflects the purpose of this offence in targeting commercially motivated importation or exportation. Framing lack of commercial intent as a defence, and imposing a legal burden on the defendant in relation to it, is consistent with the formulation of the import-export offences in proposed Division 307.

The defendant who proves the matters outlined in proposed subsection 309.12(5) and therefore does not commit an offence against this section may, however, have committed an offence of supplying controlled drugs to children under proposed section 309.2.

Proposed section 309.13 Procuring children for importing or exporting border controlled drugs or border controlled plants

Proposed section 309.13 makes it an offence for an individual to procure a child to import or export border controlled drugs or border controlled plants. Unlike the preceding offence for procuring a child to import or export marketable quantities of border controlled drugs or border controlled plants, there is no minimum amount or quantity of border controlled drugs or border controlled plants necessary to be supplied for an offence to be established under this proposed section.

The offence in this proposed section carries a higher penalty than the corresponding offence of importing or exporting border controlled drugs or border controlled plants provided in proposed section 307.3, and this higher penalty reflects the serious nature of using children to facilitate illicit drug and plant import or export.

Proposed paragraph 309.13(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to procure an individual to import or export a substance.

A child is an individual who is under 18 years of age. Proposed subsection 309.13(2) applies strict liability to the circumstance that the individual is under 18 years of age (see the overview of proposed Division 309 for the reasons for applying strict liability). Border controlled drug and border controlled plant are defined in proposed section 300.2 as substances that are listed or described as a border controlled drug or a border controlled plant in proposed section 314.4 or 314.5, prescribed by interim regulations under proposed subsection 301.3(1) or specified in an emergency determination under proposed subsection 301.8(1). Proposed subsection 309.13(3) makes clear that prosecution must prove that the person was reckless as to whether the substance involved was a border controlled drug or border controlled plant. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed subsection 309.13(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not intend to sell any of the border controlled drug or border controlled plant and did not believe that another person intended to do so. This reflects the purpose of this offence in targeting commercially motivated importation or exportation. Framing lack of commercial intent as a defence, and imposing a legal burden on the defendant in relation to it, is consistent with the formulation of the import-export offences in proposed Division 307.

The defendant who proves the matters outlined in proposed subsection 309.13(4) and therefore does not commit an offence against this proposed section may, however, have committed an offence of supplying controlled drugs to children under proposed section 309.2.

Proposed section 309.14 Procuring children for importing or exporting marketable quantities of border controlled precursors

Proposed section 309.14 makes it an offence for an individual to procure a child to import or export marketable quantities of border controlled precursors. The offence carries a higher penalty than the corresponding offence of importing or exporting marketable quantities of border controlled precursors provided in proposed section 307.12, and this higher penalty reflects the serious nature of using children to facilitate illicit precursor import or export.

Proposed paragraph 309.14(1)(a) contains the conduct element of the offence. By operation section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to procure and individual to import or export a substance.

As in all the precursor offences there is a nexus with the manufacture of a controlled drug. To make out this offence the prosecution needs to show that the person intends to use any of the precursor to manufacture a controlled drug, and/or the person believes that another person intends to use any of the precursor to manufacture a controlled drug.

Proposed subsection 305.1(1) defines manufacture to cover any process by which a substance is produced (other than the cultivation of a plant). Manufacture is defined inclusively by way of example in proposed subsection 305.1(1) to include the processes of extracting or refining a substance and transforming a substance into a different substance.

A child is an individual who is under 18 years of age. Proposed subsection 309.14(2) applies strict liability to the circumstance that the individual is under 18 years of age (see the overview of proposed Division 309 for the reasons for applying strict liability).

A border controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in section 314.6, prescribed by interim regulations under proposed subsection 301.4(1) or specified in an emergency determination under proposed subsection 301.9(1).

Proposed subsection 309.14(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

A marketable quantity is defined in proposed section 300.2 as a quantity not less than the quantity prescribed as a marketable quantity of the drug, plant or precursor specified in proposed Division 314, prescribed by interim regulations under proposed section 301.5 or specified in an emergency determination under proposed section 301.10. Marketable quantities will vary depending on the type of drug or plant involved. Proposed subsection 309.14(4) applies absolute liability to the circumstance that the quantity is a marketable quantity (see the overview of proposed Division 309 for the reasons for applying absolute liability).

The proposed maximum penalty for this offence is imprisonment for life or 7,500 penalty units, or both.

Proposed subsection 309.14(5) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not have the relevant commercial purpose. If the defendant intended to use any of the border controlled precursor to manufacture a controlled drug, this defence is available if the defendant can prove that he or she neither intended, nor believed that another person intended, to sell any of the controlled drug so manufactured. If the defendant believed that another person intended to use any of the border controlled precursor to manufacture a controlled drug, this defence is available if the defendant can prove that he or she did not intend to sell any of the drug to the other person.

Proposed section 309.15 Procuring children for importing or exporting border controlled precursors

Proposed section 309.15 makes it an offence for an individual to procure a child to import or export border controlled precursors. Unlike the preceding offence of procuring a child to import or export marketable quantities of border controlled precursors, there is no minimum amount or quantity of border controlled precursors necessary to be supplied for an offence to be established under this proposed section.

The offence carries a higher penalty than the corresponding offence of importing or exporting border controlled precursors provided in proposed section 307.13, and this higher penalty reflects the serious nature of using children to facilitate illicit precursor import or export.

Proposed paragraph 309.15(1)(a) contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person intended to procure an individual to import or export a substance.

As in all the precursor offences there is a nexus with the manufacture of a controlled drug. To prove this offence the prosecution needs to show that the person intends to use any of the precursor to manufacture a controlled drug, and/or the person believes that another person intends to use any of the precursor to manufacture a controlled drug.

Proposed subsection 305.1(1) defines manufacture to cover any process by which a substance is produced (other than the cultivation of a plant). Manufacture is defined inclusively by way of example in proposed subsection 305.1(1) to include the processes of extracting or refining a substance and transforming a substance into a different substance.

A child is an individual who is under 18 years of age. Proposed subsection 309.15(2) applies strict liability to the circumstance that the individual is under 18 years of age (see the overview of proposed Division 309 for the reasons for applying strict liability).

A border controlled precursor is defined in proposed section 300.2 as a substance that is listed or described as a controlled precursor in proposed section 314.6, prescribed by interim regulations under proposed subsection 301.4(1) or specified in an emergency determination under proposed subsection 301.9(1). Proposed subsection 309.15(3) makes clear that the prosecution must prove that the person was reckless as to whether the substance involved was a border controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

The proposed maximum penalty for this offence is imprisonment for 25 years or 5,000 penalty units, or both.

Proposed subsection 309.15(4) provides a complete defence to this offence where the defendant can prove, on the balance of probabilities, that he or she did not have the relevant commercial purpose. If the defendant intended to use any of the precursor to manufacture a controlled drug, this defence is available if the defendant can prove that he or she neither intended, nor believed that another person intended, to sell any of the controlled drug so manufactured. If the defendant believed that another person intended to use any of the precursor to manufacture a controlled drug, this defence is available if the defendant can prove that he or she did not intend to sell any of the drug to the other person.

Proposed Division 310 - Harm and danger to children under 14 from serious drug offences

Proposed Division 310 creates a range of offences directed against adults who endanger children by exposing them to the manufacture of controlled drugs or controlled precursors. The manufacture of controlled drugs and controlled precursors involves the use of volatile and toxic chemicals that are susceptible to fire and explosion and pose significant health risks. Children are particularly vulnerable to serious side effects or death from inhalation, absorption or ingestion of these chemicals (or contaminated foods and liquids) due to their lower tolerance to chemical toxicity.

This proposed Division proposes two different types of child endangerment offences.

Proposed sections 310.2 and 310.3 are stand-alone offences directed against persons who engage in conduct that gives rise to a danger of serious harm to a child under 14 or who cause actual harm to a child under 14 by exposing the child to the manufacture of a controlled drug or controlled precursor.

In prosecuting offences against these proposed sections, it is not necessary to prove that the defendant committed an offence of manufacturing a controlled drug or controlled precursor. The defendant need only expose a child under 14 to a danger of serious harm or cause harm to a child under 14 by exposing the child to such manufacture. These endangerment offences are based on model offences developed by MCCOC in the Model Criminal Code, Chapter 5, Non Fatal Offences Against the Person Report (1998). While many States and Territories have general endangerment offences that may cover this type of situation, it is proposed to create targeted federal offences with high penalties that operate specifically in the drugs context.

Proposed section 310.4 set out circumstances of aggravation for the manufacturing of controlled drugs offences (proposed sections 305.4 and 305.5) and the pre-trafficking controlled precursors offences (proposed sections 306.2, 306.3 and 306.4). These offences target persons who have been found guilty of manufacturing a controlled drug or pre-trafficking a controlled precursor where the commission of that offence gives rise to a danger of harm to a child under 14.

A child is defined as an individual under 14 years of age. Strict liability attaches to the age of the child for all of the offences in this proposed Division. This means that the prosecution does not have to prove that the defendant knew that the individual to whom they supplied the controlled drug was in fact a child. However, section 6.1(2) of the Criminal Code makes available to the defendant the defence of mistake of fact. Under section 9.2 of the Criminal Code, a person will not be criminally responsible if the person was under a mistaken but reasonable belief about those facts and if those facts had existed, the conduct would not have constituted an offence. The mistake must be one which is reasonable for the defendant to make in the circumstances. The defence of mistake of fact will not apply in circumstances where the mistake results from a lack of awareness of relevant facts.

Strict liability is appropriate in this context given the serious harm caused to children when they are supplied with controlled drugs or procured to engage in other unlawful activities involving controlled drugs, plants and precursors.

The MCCOC model endangerment offences are aggravated when committed against children under 10 years of age, but this age threshold is considered too low in the drug endangerment context. On the other hand, persons who are 14 years or older are largely capable of looking after themselves. A 14 year age threshold represents a good balance. This is also the age above which there is no special test for determining the criminal responsibility of a minor under Chapter 2 of the Criminal Code (section 7.2 states that a child aged between 10 and 14 can only be criminally responsible for an offence if the child knows that his or her conduct is wrong).

Proposed section 310.1 Children not criminally responsible for offences against this Division

Proposed section 310.1 provides that a child cannot be criminally responsible for an offence that is committed against proposed Division 310. This is because the offences for proposed Division 310 are aggravated offences and are directed against adults who endanger children by exposing them to the manufacture of controlled drugs or controlled precursors.

However, it is proposed that child offenders remain liable for other serious drug offences against the provisions of proposed Part 9.1 subject to the general limitations, in Division 7 of Part 2.3 of the Criminal Code, on the extent to which children can be criminally responsible.

Proposed section 310.2 Danger from exposure to unlawful manufacturing

Proposed section 310.2 is a stand-alone offence directed against persons who engage in conduct that gives rise to a danger of serious harm to a child under 14 by exposing the child the manufacture of a controlled drug of controlled precursor.

For the purposes of proposed paragraph 310.2(1)(a), engage in conduct is defined by subsection 4.1(2) of the Criminal Code, which provides that conduct includes an act or an omission to perform an act. This proposed paragraph contains the conduct element of the offence. By operation of section 5.6 of the Criminal Code, the fault element of intention will apply to a physical element of an offence that is conduct.

Proposed paragraph 310.2(1)(b) provides that a circumstance in which the offending conduct in proposed paragraph (a) must occur is where the conduct gives rise to a danger of serious harm. Serious harm is defined in the Dictionary to the Criminal Code. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person was reckless as to whether is or her conduct gave rise to a danger of serious harm. Recklessness is defined in section 5.4 of the Criminal Code.

A person's conduct can give rise to a danger of serious harm to the other person if the conduct is ordinarily capable of creating a real, and not merely a theoretical, danger of serious harm (proposed subsection 310.2(4)). A person's conduct may give rise to a danger of serious harm whatever the statistical or arithmetical calculation of the degree of risk of serious harm involved (proposed subsection 310.2(5)): there is no need to quantify the degree of risk involved. A person's conduct can also give rise to a danger of serious harm to the other person if it exposes another person to the risk of catching a disease that gives rise to a danger of serious harm to the other person (proposed subsection 310.2(3)). This proposed subsection gives examples of what would be caught within the meaning of conduct giving rise to a danger of serious harm. A real danger of serious harm in the drugs context includes, for example, health and safety risks such as inhalation, absorption, or ingestion of toxic chemicals, drugs, or contaminated foods or liquids or injury or death from fire and explosion. Proposed subsection 310.2(6) makes clear that it is not necessary to prove that a person was actually placed in danger of serious harm (just that the person engaged in conduct that gives rise to such danger).

For the purposes of proposed paragraph 310.2(1)(c), the individual must be under 14 years of age. Proposed subsection 310.2(2) applies strict liability to the circumstance that the individual is under 14 years of age (see the overview of proposed Division 310 for the reasons for applying strict liability).

Proposed paragraph 310.2(1)(d) provides the circumstance in which the offending conduct in proposed paragraph (a) must occur. That is where the individual is exposed to the manufacture of a controlled drug or a controlled precursor.

For the purposes of this proposed subsection, a person is exposed to the manufacture of a substance if the person is exposed to any of the activities covered by proposed subsections 305.1(1) and 305.2(2). 'Expose' retains its ordinary meaning and in this context includes to subject an individual to, or to allow an individual to be subjected to, the manufacture of a controlled drug or controlled precursor through a physical act or omission. It is not intended to include, for example, exposure to mere words or images about or relating to controlled drug or controlled precursor manufacture.

Proposed paragraphs 310.2(1)(d) provides that a circumstance in which the offending conduct in proposed paragraph (a) must occur is where the substance involved is a controlled drug or a controlled precursor.

Proposed section 300.2 defines a controlled drug to mean a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a).

Proposed section 300.2 defines controlled precursor to mean a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under proposed subsection 301.2(1) or specified in an emergency determination under proposed subsection 301.7(1). By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person was reckless as to whether the substance involved was a controlled drug or a controlled precursor. Recklessness is defined in section 5.4 of the Criminal Code.

Proposed paragraph 310.2(1)(e) sets out an additional circumstance in which the offending conduct must occur, which is where the manufacture is an offence against proposed Part 9.1 of the Criminal Code, or would be an offence against proposed Part 9.1 if the manufacture were for a commercial purpose. Manufacturing of controlled drugs offences are set out in proposed Division 305 and manufacturing of controlled precursors offences is covered by the pre-trafficking controlled precursor offences in proposed Division 306. This proposed subsection aims to ensure that the types of manufacture involved in this offence are not limited to commercial manufacture. Proposed subsection 310.2(2) applies strict liability to this element. This means that the requirement on the prosecution to prove fault for this element of the offence is removed. The prosecution still has to show that there the individual was exposed to the unlawful manufacture of a controlled drug or a controlled precursor, and the defence of mistake of fact is available to the defendant. Proposed subsection 310.2(6) makes clear that the prosecution does not have to prove that any manufacturing offence was committed.

The proposed maximum penalty for this offence is imprisonment for 9 years or 1,800 penalty units, or both.

Proposed section 310.3 Harm from exposure to unlawful manufacturing

Proposed section 310.3 is a stand-alone offence directed against persons who cause actual harm to a child under 14 by exposing the child the manufacture of a controlled drug of controlled precursor that is unlawful under proposed Part 9.1 of the Criminal Code.

Proposed paragraph 310.3(1)(b) provides that a circumstance in which the offending conduct in proposed paragraph (a) must occur is where the conduct causes harm to an individual. Harm is defined in the Dictionary to the Criminal Code. By operation of section 5.6 of the Criminal Code, the prosecution will need to prove that the person was reckless as to whether his or her conduct caused harm to an individual. Recklessness is defined in section 5.4 of the Criminal Code.

For the purposes of proposed paragraph 310.3(1)(c), the individual must be under 14 years of age. Proposed subsection 310.3(2) applies strict liability to the circumstance that the individual is under 14 years of age (see the overview of proposed Division 310 for the reasons for applying strict liability).

Proposed paragraph 310.3(1)(d) provides the harm must be caused because the individual is exposed to the manufacture of a controlled drug or a controlled precursor. For the purposes of this proposed subsection, a person is exposed to the manufacture of a substance if the person is exposed to any of the activities covered by proposed subsections 305.1(1) and 305.2(2). Expose retains its ordinary meaning and in this context includes to subject an individual to, or to allow an individual to be subjected to, the manufacture of a controlled drug or controlled precursor through a physical act or omission. It is not intended to include, for example, exposure to mere words or images about or relating to controlled drug or controlled precursor manufacture.

Proposed paragraph 310.3(1)(d) provides that a circumstance in which the offending conduct in proposed paragraph (a) must occur is where the substance involved is a controlled drug or a controlled precursor. Proposed section 300.2 defines a controlled drug to mean a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a).

Proposed section 300.2 defines controlled precursor to mean a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under proposed subsection 301.2(1) or specified in an emergency determination under proposed subsection 301.7(1).

Proposed paragraph 310.3(1)(e) sets out an additional circumstance in which the offending conduct must occur, which is where the manufacture is an offence against proposed Part 9.1 of the Criminal Code, or would be an offence against proposed Part 9.1 if the manufacture were for a commercial purpose. Manufacturing of controlled drugs offences are set out in proposed Division 305 and manufacturing of controlled precursors offences is covered by the pre-trafficking controlled precursor offences in proposed Division 306. This proposed subsection aims to ensure that the types of manufacture involved in this offence are not limited to commercial manufacture. Proposed subsection 310.3(2) applies strict liability to this element. This means that the requirement on the prosecution to prove fault for this element of the offence is removed. The prosecution still has to show that there the individual was exposed to the unlawful manufacture of a controlled drug or a controlled precursor, and the defence of mistake of fact is available to the defendant. Proposed subsection 310.3(3) makes clear that the prosecution does not have to show that any manufacturing offence was in fact committed.

The proposed maximum penalty for this offence is imprisonment for 9 years or 1,800 penalty units, or both.

Proposed section 310.4 Aggravated offences - manufacturing controlled drugs and controlled precursors

Proposed section 310.4 sets out circumstances of aggravation for the manufacturing of controlled drugs offences included in proposed sections 305.4 and 305.5 and the pre-trafficking controlled precursor offences included in proposed sections 306.2, 306.3 and 306.4.

Proposed subsection 310.4(1) requires the prosecution to charge the aggravated offence if it intends to prove it. For the purposes of this proposed Division, offences against proposed sections 305.4, 305.4, 306.2, 306.3 or 306.4 can be aggravated offences.

Aggravated drug manufacturing

Proposed subsection 310.4(2) applies to the drug manufacturing offences. Aggravation is available where the offence involves a marketable quantity or a lesser quantity, but not a commercial quantity (because the maximum penalty for that offence is already life imprisonment). Proposed paragraph (a) provides that these offences are aggravated where the commission of the offence exposes an individual to the manufacture of a controlled drug. Proposed section 300.2 defines a controlled drug to mean a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). For the purposes of this proposed subsection, a person is exposed to the manufacture of a controlled drug if the person is exposed to any of the activities covered by proposed subsections 305.1(1) and 305.1(2). Expose retains its ordinary meaning and in this context includes to subject an individual to, or to allow an individual to be subjected to, the manufacture of a controlled drug through a physical act or omission. It is not intended to include, for example, exposure to mere words or images about or relating to controlled drug manufacture. Proposed subsection 310.4(4) makes clear that the fault element for proposed paragraph (2)(a) is recklessness.

Proposed paragraph 310.4(2)(b) provides that for the offence to be an aggravated offence, the commission of the offence must expose an individual under 14 years of age to the manufacture of a controlled drug. Proposed subsection 310.4(5) makes clear that strict liability applies to the circumstance that the individual is under 14 years of age (see overview of proposed Division 310 for the reasons for applying strict liability).

Aggravated precursor offences

Proposed subsection 310.4(3) applies to the pre-trafficking offences, which include manufacturing of controlled precursors. Aggravation is available for each tier of this offence. Proposed paragraph (a) provides that these offences are aggravated where the commission of the offence exposes an individual to either a controlled precursor intended to be used to manufacture a controlled drug, or the manufacture of a controlled precursor.

Proposed paragraph 310.4(2)(a) provides that for the offence to be an aggravated offence, the commission of the offence exposes an individual to the manufacture of a controlled precursor. For the purposes of this proposed subsection, a person is exposed to the manufacture of a substance if the person is exposed to any of the activities covered by proposed subsection 305.1(1) and 305.2(2). Expose retains its ordinary meaning and in this context includes to subject an individual to, or to allow an individual to be subjected to, the manufacture of a controlled precursor through a physical act or omission. It is not intended to include, for example, exposure to mere words or images about or relating to controlled precursor manufacture.

Proposed paragraph 310.4(3)(a) provides that the circumstance in which the offending conduct in proposed paragraph (a) must occur is where the substance involved is a controlled drug and/or a controlled precursor. Proposed section 300.2 defines a controlled drug to mean a substance that is listed or described as a controlled drug in proposed section 314.1, prescribed by interim regulations under proposed paragraph 301.1(1)(a) or specified in an emergency determination under proposed paragraph 301.6(1)(a). Proposed section 300.2 defines controlled precursor to mean a substance that is listed or described as a controlled precursor in proposed section 314.3, prescribed by interim regulations under proposed subsection 301.2(1) or specified in an emergency determination under proposed subsection 301.7(1). Proposed subsection 310.4(4) makes clear that the fault element for proposed paragraph 310.4(3)(a) is recklessness.

Proposed paragraph 310.4(3)(b) provides that for the offence to be an aggravated offence, the commission of the offence must expose an individual under 14 years of age to the manufacture of a controlled drug. Proposed subsection 310.4(5) applies strict liability to the circumstance that the individual is under 14 years of age (see overview of proposed Division 310 for the reasons for applying strict liability).

Under proposed subsection 310.4(6), where it is shown that a person exposed a child under 14 to the manufacture of a controlled drug or controlled precursor, there will be a rebuttable presumption that that exposure gave rise to a danger of harm to the child. The defendant will bear an evidential burden of proof to show that the commission of the offence does not give rise to a danger of harm to the individual.

Proposed subsections 310.4(7) - (9) shed light on what it means to engage in conduct that gives rise to a danger of harm. The conduct must be ordinarily capable of creating a real, and not merely a theoretical, danger of harm (proposed subsection 310.4(8)). A person's conduct may give rise to a danger of harm whatever the statistical or arithmetical calculation of the degree of risk of harm involved (proposed subsection 310.4(9)): there is no need to quantify the degree of risk involved. A person's conduct can also give rise to a danger of harm to the other person if it exposes another person to the risk of catching a disease that gives rise to a danger of harm to the other person (proposed subsection 310.4(7)). This proposed subsection gives examples of what would be caught within the meaning of conduct giving rise to a danger of harm.

Proposed Division 311 - Combining quantities of drugs, plants or precursors

In the scheme of the offences in proposed Part 9.1 of the Criminal Code, the quantity of the controlled substance determines the level of maximum penalty for the particular type of offence involved, for example, trafficking or commercial manufacture. Evidence that a large quantity was involved in a particular transaction is often a good indication that the offender was a major dealer. However, seizure of a small quantity is less often a good indication of minor dealing. This is because the particular person may have taken care to avoid large transactions on any particular occasion (to try to avoid the higher penalties), or an offender who is a major supplier may have simply been caught with a small quantity because stocks were low at that time.

The aggregation provisions in proposed Division 311 allow prosecutions for aggregated offences to be based on evidence of a course of action which amounts, in its totality, to major drug criminality. This is available even though individual instances of dealing, manufacture or cultivation may involve relatively small quantities.

Three types of aggregation are available to the proposed Part 9.1 offences:

(1)

combining different parcels on the same occasion

(2)

combining parcels from organised commercial activities

(3)

combining parcels from multiple offences

These different types of aggregation are explained separately below.

Aggregation in these ways will be an option for the prosecution. The primary object of the provision is to expose offenders who engage in frequent small dealings to the higher penalties usually reserved for those who deal in bulk quantities.

Proposed Subdivision A - Combining different parcels on the same occasion

This type of aggregation enables the aggregation of different parcels of controlled substances or border controlled substances, which are dealt with on a single occasion.

This provision is particularly aimed at dealers who carry more than one type of controlled substance or border controlled substance, for example, the dealer who carries mixed stocks of drugs in order to offer 'supermarket' facilities to their clientele. This provision applies where a person has several parcels of the same substance, as well as where a person has several parcels of different controlled substances or border controlled substances, for example, two parcels of controlled drugs, where one parcel contains heroin and another parcel contains ecstasy.

This type of aggregation does not permit the combining of conduct in relation to different parcels of controlled substances or border controlled substances where that conduct is justified or excused by or under a law. This is because section 10.5 of the Criminal Code contains a general provision which means that a person is not criminally responsible for an offence if the conduct constituting that offence is justified or excused under a Commonwealth law.

Proposed section 313.1 contains a very similar provision applying to proposed Part 9.1 only, that refers to conduct that is justified or excused by or under a law of a State or Territory. If either section 10.5 or proposed section 313.1 applies to conduct, it cannot be counted for the purposes of aggregation. For example, if a person sells one parcel of heroin and one parcel of morphine (both substances listed as controlled drugs), but the sale of the morphine was licensed in the appropriate manner while the sale of the heroin was not, the parcel of methadone could not be counted in determining the relevant quantity for the charge of trafficking a controlled drug.

Proposed section 311.1 - Combining different parcels on the same occasion

Proposed subsection 311.1(1) sets out the different offences in proposed Part 9.1 for which this type of aggregation is available. These are the main serious offences in proposed Part 9.1. Aggregation of this kind is not available for the possession offences in proposed Division 308 because they are not considered to point to the high level of criminality that the aggregation offences are designed to capture.

The provision captures the situation where a person deals in different parcels on the same occasion. For example, if a person traffics different parcels of controlled drugs on the same occasion, that person can be charged with the single offence of trafficking controlled drugs, and the quantity can reflect all or any of the different parcels of controlled drugs involved on that occasion.

Proposed subsection 311.1(2) clarifies that the quantity of controlled substance referred to in the single offence against this Part in proposed subsection (1), is the sum of the quantities of the drugs, plants or precursors in the different parcels.

Where there are different parcels of the same kind of controlled substance or border controlled substance (eg one parcel containing 2g of heroin and one parcel containing 5g of heroin), the quantity of the substance can be found by adding the quantities of the different parcels. Where different kinds of controlled substances or border controlled substances are involved (eg one parcel containing 2g of heroin and one parcel containing 2g of ecstasy), proposed section 312.2 provides a mechanism for working out the relevant quantity.

Proposed subsection 311.1(3) requires the prosecution to set out particulars of each parcel of drugs, plants or precursors in the charge if it intends to rely on this type of aggregation. This is to ensure that defendants are aware of the specific nature of the charge against them.

Proposed subsection 311.1(4) makes clear that while the prosecution may elect to use this type of aggregation, the proposed subdivision does not prevent the prosecution charging separate offences for each of the parcels of controlled substances or border controlled substances.

Proposed Subdivision B - Combining parcels from organised commercial activities

This type of aggregation targets situations where the prosecution can show that the defendant carried on an organised commercial activity - a business - involving commercial or marketable quantities of controlled substances or border controlled substances, but where the prosecution cannot show the individual quantities or transactions. There is no restriction on the amount of time over which the organised commercial activity takes place in order to use this type of aggregation.

This type of aggregation is available to only certain types of offences. They are:

•

trafficking controlled drugs;

•

pre-trafficking by selling controlled precursors;

•

importing or exporting border controlled drugs or border controlled plants;

•

importing or exporting border controlled precursors, and

•

supplying to children.

It is possible that a person who buys and sells controlled substances or border controlled substances to sustain his or her own personal drug use might be said to carry on a business, there should be distinction drawn between this individual (whose commercial involvement is based on subsistence) and those who are engaged in dealings in drugs for profit. Accordingly, this type of aggregation is limited to cases in which the prosecution seeks to prove that commercial or marketable quantities are involved. Where quantities of this magnitude can be proved, it is more likely that the defendant was motivated by commercial profit.

This type of aggregation does not permit the combining of conduct in relation to proving an organised commercial activity involving controlled substances or border controlled substances where that conduct is justified or excused by or under a law. This is because section 10.5 of the Criminal Code contains a general provision which means that a person is not criminally responsible for an offence if the conduct constituting that offence is justified or excused under a Commonwealth law. Proposed section 313.1 contains a very similar provision applying to proposed Part 9.1 only, that refers to conduct that is justified or excused by or under a law of a State or Territory. If either proposed section 10.5 or proposed section 313.1 applies to conduct, it cannot be counted for the purposes of proving an organised commercial activity under this type of aggregation.

Proposed section 311.2 - Business of trafficking controlled drugs

Proposed subsection 311.2(1) applies to the offences set out in proposed paragraphs 311.2(1)(a) and (b) - trafficking commercial quantities of controlled drugs (proposed section 302.2) and trafficking marketable quantities of controlled drugs (proposed section 302.3).

In proceedings for either of these offences, the prosecution may use this form of aggregation to prove the element of quantity of controlled drug by proving the alternative elements that are set out in proposed paragraphs 311.2(1)(c) and (d). The prosecution must prove both that the defendant was engaged in an organised commercial activity that involved repeated trafficking controlled drugs and that either a commercial or a marketable quantity was trafficked in the course of that activity.

The phrase organised commercial activity is not defined. This is designed to give the prosecution maximum flexibility to show to a jury what may constitute an organised commercial activity in any given circumstance. Indicia of an organised commercial activity may include the scale of the operations, the frequency of dealings, and the degree of organisation. Proposed paragraph (c) also requires that the organised commercial activity involve repeated trafficking in controlled drugs.

The prosecution must also show that in the course of the organised commercial activity, either a commercial or a marketable quantity of the controlled drug was trafficked.

Proposed subsection 311.2(2) provides that the prosecution need not give evidence of each particular transaction, nor the quantity contained in any particular parcel, of the controlled drug. This is different from the way that the types of aggregation in proposed Subdivisions A and C operate. There is also no requirement that the organised commercial activity take place within a particular time period.

Proposed subsection 311.2(3) clarifies that the trafficable presumption for offences against proposed sections 302.2 and 302.3 are not available where the prosecution of that offence relied on proposed subsection (1).

This means that if, in proceedings against proposed sections 302.2 or 302.3, the element of quantity was established through the mechanism in 311.2(1) rather than by evidence of a particular transaction (for example, with a proven date, time and quantity), the prosecution may not rely on proposed section 302.5 to assist with the element of intention or belief concerning the sale of the drug (commercial purpose).

At the same time, if the prosecution is able to use this type of aggregation by showing an organised commercial activity, it is likely that this evidence will also serve to point to the element of commercial purpose that forms part of the drug trafficking offences.

Proposed section 311.3 - Business of pre-trafficking by selling controlled precursors

Proposed subsection 311.3(1) applies to the offences set out in proposed paragraphs 311.3(1)(a) and (b) - pre-trafficking commercial quantities of controlled precursors (proposed section 306.2) and pre-trafficking marketable quantities of controlled precursors (proposed section 306.3) where the commission of the pre-trafficking offence involves selling controlled precursors.

In proceedings for either of these offences, the prosecution may use this form of aggregation to prove the element of quantity of controlled precursor by proving the alternative elements that are set out in proposed paragraphs 311.3(1)(c) and (d).

The prosecution must prove both that the defendant was engaged in an organised commercial activity that involved repeated pre-trafficking in controlled precursors and that either a commercial or a marketable quantity was pre-trafficked in the course of that activity.

The phrase organised commercial activity is not defined. This is designed to give the prosecution maximum flexibility to show to a jury what may constitute an organised commercial activity in any given circumstance. Indicia of an organised commercial activity may include the scale of the operations, the frequency of dealings, and the degree of organisation. Proposed paragraph (c) also requires that the organised commercial activity involve repeated pre-trafficking in controlled precursor.

The prosecution must also show that in the course of the organised commercial activity, either a commercial or a marketable quantity of the controlled precursor was trafficked.

Proposed subsection 311.3(2) provides that the prosecution need not give evidence of each particular transaction, nor the quantity contained in any particular parcel, of the controlled precursor. This is different from the way that the types of aggregation in proposed Subdivisions A and C operate. There is also no requirement that the organised commercial activity take place within a particular time period.

Proposed section 311.4 - Business of importing or exporting border controlled drugs or border controlled plants

Proposed subsection 311.4(1) applies to the offences set out in proposed paragraphs 311.4(1)(a) and (b) - importing and exporting commercial quantities of border controlled drugs or border controlled plants (proposed section 307.1) or importing and exporting marketable quantities of border controlled drugs or border controlled plants (proposed section 307.2).

In proceedings for either of these offences, the prosecution may use this form of aggregation to prove the element of quantity of border controlled drug or border controlled plant by proving the alternative elements that are set out in proposed paragraphs 311.4(1)(c) and (d). The prosecution must prove both that the defendant was engaged in an organised commercial activity that involved repeated importing or exporting of border controlled drugs or border controlled plants and that either a commercial or a marketable quantity was imported or exported in the course of that activity.

The phrase organised commercial activity is not defined. This is designed to give the prosecution maximum flexibility to show to a jury what may constitute an organised commercial activity in any given circumstance. Indicia of an organised commercial activity may include the scale of the operations, the frequency of dealings, and the degree of organisation. Proposed paragraph (c) also requires that the organised commercial activity involve repeated importing or exporting of border controlled drugs or border controlled plants.

The prosecution must also show that in the course of the organised commercial activity, either a commercial or a marketable quantity of the border controlled drug or border controlled plant was imported or exported.

Proposed subsection 311.4(2) provides that the prosecution need not give evidence of each particular transaction, nor the quantity contained in any particular parcel, of the border controlled drug or border controlled plant. This is different from the way that the types of aggregation in proposed Subdivisions A and C operate. There is also no requirement that the organised commercial activity take place within a particular time period.

Proposed section 311.5 - Business of importing or exporting border controlled precursors

Proposed subsection 311.5(1)

This proposed section applies to the offences set out in proposed paragraphs 311.5(1)(a) and (b) - importing and exporting commercial quantities of border controlled precursors (proposed section 307.11) or importing or exporting marketable quantities of border controlled precursors (proposed section 307.12).

In proceedings for either of these offences, the prosecution may use this form of aggregation to prove the element of quantity of border controlled precursor by proving the alternative elements that are set out in proposed paragraphs 311.5(1)(c) and (d). The prosecution must prove both that the defendant was engaged in an organised commercial activity that involved repeated importing or exporting of border controlled precursors and that either a commercial or a marketable quantity was imported or exported in the course of that activity.

The phrase organised commercial activity is not defined. This is designed to give the prosecution maximum flexibility to show to a jury what may constitute an organised commercial activity in any given circumstance. Indicia of an organised commercial activity may include the scale of the operations, the frequency of dealings, and the degree of organisation. Proposed paragraph (c) also requires that the organised commercial activity involve repeated importing or exporting of a border controlled precursor.

The prosecution must also show that in the course of the organised commercial activity, either a commercial or a marketable quantity of the border controlled precursor was imported or exported.

Proposed subsection 311.5(2) provides that the prosecution need not give evidence of each particular transaction, nor the quantity contained in any particular parcel, of the border controlled precursor. This is different from the way that the types of aggregation in proposed Subdivisions A and C operate. There is also no requirement that the organised commercial activity take place within a particular time period.

Proposed section 311.6 - Business of supplying controlled drugs to children

Proposed subsection 311.6(1) applies to proceedings for the offence of supplying marketable quantities of controlled drugs to children for trafficking (proposed section 309.3).

In proceedings for this offence, the prosecution may use this form of aggregation to prove the element of quantity of controlled drug by proving the alternative elements that are set out in proposed paragraphs 311.6(1)(a) and (b). The prosecution must prove both that the defendant was engaged in an organised commercial activity that involved repeated supplying of controlled drugs to children and that a marketable quantity was trafficked in the course of that activity.

The phrase organised commercial activity is not defined. This is designed to give the prosecution maximum flexibility to show to a jury what may constitute an organised commercial activity in any given circumstance. Indicia of an organised commercial activity may include the scale of the operations, the frequency of dealings, and the degree of organisation.

The prosecution must also show that in the course of the organised commercial activity, a marketable quantity of the controlled drug was supplied.

Proposed subsection 311.6(2) provides that the prosecution need not give evidence of each particular transaction, nor the quantity contained in any particular parcel, of the controlled drug. This is different from the way that the types of aggregation in proposed Subdivisions A and C operate. There is also no requirement that the organised commercial activity take place within a particular time period.

Proposed subsection 311.6(3) clarifies that the trafficable presumption for an offence against proposed section 309.3 is not available where the prosecution of that offence relied on proposed subsection (1).

This means that if, in proceedings against proposed section 309.3, the element of quantity was established through the mechanism in 311.6(1) rather than by evidence of a particular transaction (for example, with a proven date, time and quantity), the prosecution may not rely on proposed section 302.5 to assist with the element of intention or belief concerning the sale of the drug (commercial purpose).

At the same time, if the prosecution is able to use this type of aggregation by showing an organised commercial activity, it is likely that this evidence will also serve to point to the element of commercial purpose that forms part of the drug trafficking offences.

Proposed section 311.7 - General rules-combining parcels from organised commercial activities

Proposed subsection 311.7(1) is similar to that in 311.1(2), and requires the prosecution to set out its intention to rely on this type of aggregation (proposed Subdivision B aggregation) in the charge. This is to ensure that defendants are aware of the specific nature of the charge against them. The prosecution must also set out a description of the conduct alleged for the purposes of the aggregation either in the charge or at a reasonable time before the proceedings.

Proposed subsections 311.7(2) and (3) are double jeopardy provisions that ensure there can be no 'double dipping' regarding particular occasions of drug dealing. These provisions ensure that a person cannot be convicted for both an aggregated and simple trafficking offence based on the same or substantially similar evidence.

Proposed subsection (2) means that if an occasion of trafficking, pre-trafficking, importing, exporting or supplying is alleged in the context of proposed Subdivision B aggregation and a person is either convicted or acquitted of the relevant offence, that particular occasion cannot form the basis of another offence against the Part.

Proposed subsection (3) is the reverse of the preceding proposed subsection: if an occasion of trafficking, pre-trafficking, importing, exporting or supplying is alleged in the context of an offence against the Part and the person is either convicted or acquitted of that offence, that particular occasion cannot be alleged in the context of an offence prosecuted in accordance with proposed Subdivision B aggregation.

Proposed subsection 311.7(4) makes clear that while the prosecution may elect to use this type of aggregation, the proposed subdivision does not prevent the prosecution charging separate offences in respect of the conduct on different occasions.

Proposed Subdivision C - Combining parcels from multiple offences

This type of aggregation enables the combination of different parcels of controlled substances or border controlled substances which are dealt with on multiple occasions (proposed Subdivision A aggregation deals with different parcels on the same occasion). The provisions enable dealings to be aggregated within a 7-day period (or a 30-day period for import-export offences).

Proposed Subdivision C aggregation is particularly aimed at dealers who consistently traffic in small quantities. For example, police may be able to gather evidence of substantial drug dealing by proving a series of transactions over a short period. This may be contrasted with proposed Subdivision B aggregation, which may assist police where there is evidence of a pattern of business activity over period of time which may extend to years of commercial dealings.

Proposed Subdivision C aggregation requires each individual transaction to be proved beyond reasonable doubt. The rationale behind this type of aggregation is that a person who deals more than once in a 7-day period is no less involved in the illicit drug trade than a person who only deals once in an equivalent quantity. There is no limit to the length of time over which transactions can be aggregated, so long as they occur within intervals of 7 days or less.

This main purpose of this type of aggregation is to determine the appropriate grade of the defendant's crime; however, it cannot be used to create an offence of trafficking, for example, from several instances of mere possession.

This type of aggregation does not permit the combining of conduct in relation to different parcels of controlled substances or border controlled substances where that conduct is justified or excused by or under a law. This is because to access this type of aggregation, the prosecution needs to show that the defendant committed offences against the relevant proposed Division: if each offence can be shown separately, this type of aggregation then enables the quantities to be combined if the offence were committed within the relevant time period.

Accordingly, the general defences available to recognise legitimate conduct will be available to each of the separate offences. Section 10.5 of the Criminal Code contains a general provision which means that a person is not criminally responsible for an offence if the conduct constituting that offence is justified or excused under a Commonwealth law. Proposed section 313.1 contains a very similar provision applying to proposed Part 9.1 only, that refers to conduct that is justified or excused by or under a law of a State or Territory. If either proposed section 10.5 or proposed section 313.1 applies to any of the relevant offences, it cannot be counted for the purposes of aggregation.

Proposed section 311.8 - Multiple offences-trafficking controlled drugs

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Division 302 (trafficking controlled drugs). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Division 302 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Division 302 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the controlled drug (or combination of controlled drugs) was trafficked through the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

Proposed section 311.9 - Multiple offences-cultivating controlled plants

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Division 303 (cultivating controlled plants). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Division 303 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Division 303 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the controlled plant (or combination of controlled plants) was cultivated through the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

Proposed section 311.10 - Multiple offences-selling controlled plants

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Division 304 (selling controlled plants).

Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Division 304 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Division 304 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the controlled plant (or combination of controlled plants) was sold through the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

Proposed section 311.11 - Multiple offences-manufacturing controlled drugs

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Division 305 (manufacturing controlled drugs). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Division 305 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Division 305 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the controlled drug (or combination of controlled drugs) was manufactured through the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

Proposed section 311.12 - Multiple offences-pre-trafficking controlled precursors

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Division 306 (pre-trafficking controlled precursors). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Division 306 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Division 306 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the controlled precursor (or combination of controlled precursors) was pre-trafficked through the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

Proposed section 311.13 - Multiple offences-importing or exporting border controlled drugs or border controlled plants

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Subdivision A of Division 307 (importing or exporting border controlled drugs or border controlled plants). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Subdivision A of Division 307 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Subdivision A of Division 307 on different occasions;

•

each of the offences was committed within 30 days of the other offence; and

•

the relevant quantity of the border controlled drug or border controlled plant (or combination of border controlled drugs or border controlled plants) was imported or exported through the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty. The number of days permitted to elapse between each of the individual offences is greater in the import-export context, to take into account the longer period of time needed for international transport.

Proposed section 311.14 - Multiple offences-possessing unlawfully imported border controlled drugs or border controlled plants

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Subdivision B of Division 307 (possessing unlawfully imported border controlled drugs or border controlled plants). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Subdivision B of Division 307 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Subdivision B of Division 307 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the border controlled drug or border controlled plant (or combination of border controlled drugs or border controlled plants) was possessed by the defendant during the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty. Although these offences have an import-export element, they are essentially serious possession offences. Accordingly, the number of days permitted to elapse between each of the individual offences is 7 days. This is consistent with the approach taken to the only other possession offences that can be aggregated under this proposed subdivision (trafficking by possession (proposed section 311.8), and pre-trafficking by possession (proposed 311.12)).

Proposed section 311.15 - Multiple offences-possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Subdivision C of Division 307 (possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Subdivision C of Division 307 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Subdivision C of Division 307 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the border controlled drug or border controlled plant (or combination of border controlled drugs or border controlled plants) was possessed by the defendant during the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty. Although these offences have an import-export element, they are essentially serious possession offences. Accordingly, the number of days permitted to elapse between each of the individual offences is 7 days. This is consistent with the approach taken to the only other possession offences that can be aggregated under this proposed Subdivision (trafficking by possession (proposed section 311.8), and pre-trafficking by possession (proposed 311.12)).

Proposed section 311.16 - Multiple offences-importing or exporting border controlled precursors

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed Subdivision D of Division 307 (importing or exporting border controlled precursors). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed Subdivision D of Division 307 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed Subdivision D of Division 307 on different occasions;

•

each of the offences was committed within 30 days of the other offence; and

•

the relevant quantity of the border controlled precursor (or combination of border controlled precursors) was imported or exported during the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

The number of days permitted to elapse between each of the individual offences is greater in the import-export context, to take into account the longer period of time needed for international transport.

Proposed section 311.17 - Multiple offences-supplying controlled drugs to children for trafficking

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed section 309.3 (supplying marketable quantities of controlled drugs to children for trafficking). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed section 309.3 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed section 309.4 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the controlled drug (or combination of controlled drugs) was supplied during the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

Proposed section 311.18 - Multiple offences-procuring children for trafficking controlled drugs

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed section 309.7 (procuring children for trafficking marketable quantities of controlled drugs). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed section 309.7 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed section 309.8 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the controlled drug (or combination of controlled drugs) was supplied during the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

Proposed section 311.19 - Multiple offences-procuring children for pre-trafficking controlled precursors

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed section 309.10 (procuring children for pre-trafficking marketable quantities of controlled precursors).

Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed section 309.10 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed section 309.11 on different occasions;

•

each of the offences was committed within 7 days of the other offence; and

•

the relevant quantity of the controlled precursor (or combination of controlled precursors) was pre-trafficked during the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty.

Proposed section 311.20 - Multiple offences-procuring children for importing or exporting border controlled drugs or border controlled plants

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed section 309.12 (procuring children for importing or exporting border controlled drugs or border controlled plants). Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed section 309.12 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed section 309.13 on different occasions;

•

each of the offences was committed within 30 days of the other offence; and

•

the relevant quantity of the border controlled drug or border controlled plant (or combination of border controlled drugs or border controlled plants) was imported or exported during the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty. The number of days permitted to elapse between each of the individual offences is greater in the import-export context, to take into account the longer period of time needed for international transport.

Proposed section 311.21 - Multiple offences-procuring children for importing or exporting border controlled precursors

This proposed section applies where the prosecution wishes to aggregate multiple offences against proposed section 309.14 (procuring children for importing or exporting marketable quantities of border controlled precursors).

Instead of prosecuting separate offences, the prosecution may aggregate the offences into a single offence against proposed section 309.14 if the following conditions are met:

•

the defendant can be shown to have committed separate offences against proposed section 309.15 on different occasions;

•

each of the offences was committed within 30 days of the other offence; and

•

the relevant quantity of the border controlled precursor (or combination of border controlled precursors) was imported or exported during the commission of those offences.

This type of aggregation provides a means to appropriately reflect the criminality of the conduct involved in the charge and available maximum penalty. The number of days permitted to elapse between each of the individual offences is greater in the import-export context, to take into account the longer period of time needed for international transport.

Proposed section 311.22 - General rules-combining parcels from multiple offences

Proposed subsection 311.22(1) requires the prosecution to set out particulars of the offences alleged to have been committed on different occasions in the charge if it intends to rely on this type of aggregation. This is to ensure that defendants are aware of the specific nature of the charge against them.

Proposed subsection 311.22(2) is a type of double jeopardy provision that is designed to ensure that, for the purposes of this type of aggregation, a defendant is not prosecuted twice in relation to the same parcel of controlled substances or border controlled substances. A parcel of substances or border controlled substances may only be counted once for the purpose of this type of aggregation, even though the person may deal with a parcel in a number of different ways that would be covered by the offences.

Proposed subsection 311.22(3) makes clear that while the prosecution may elect to use this type of aggregation, the proposed subdivision does not prevent the prosecution charging separate offences in respect of conduct on different occasions.

Proposed Division 312 - Working out quantities of drugs, plants or precursors

This proposed Division contains a number of important provisions that are necessary for the operation of the proposed Part 9.1 offences. The provisions concern the way in which quantities for the offences can be determined, particularly when different kinds of controlled substances or border controlled substances are involved, or where dilute quantities of substances are used.

Proposed section 312.1 - Working out quantities of drugs and precursors in mixtures

The quantities of controlled drugs and border controlled drugs are able to be specified as either a pure or dilute quantity, or both. A pure quantity means the amount of the pure drug that is involved in the commission of an offence (whether or not that pure quantity is contained in a mixture including other substances). A dilute quantity means the total amount of the substance involved in the commission of the offence in circumstances where the substance is a mixture of substances including a controlled drug. Dilute quantities will not rely on any quantitative analysis as to the proportion of the drug in the mixture: all that is required is that the prosecution establish that a given mixture in fact contains the controlled substance or border controlled substance. Dilute quantities are not listed in proposed Division 314, however it is intended that they will be added in future.

Proposed subsections 312.1(1) and (3) provide that where an offence involves a controlled drug or a border controlled drug in a mixture of substances, the prosecution may prove the quantity of controlled drug involved in either of two ways. The prosecution may prove that the mixture contains a quantity of the pure form of the drug (which can be determined by a quantitative analysis). Or, if a dilute quantity of the drug is prescribed, the prosecution may prove the quantity of the drug in the mixture by proving the quantity of the mixture (that is, the quantity of the drug together with anything mixed within it).

Proposed subsections 312.1(2) and (3) make clear that where an offence involves a controlled precursor or a border controlled precursor in a mixture of substances, the prosecution may prove the quantity of the controlled precursor or border controlled precursor involved by proving that the mixture contains that quantity of the pure form of that controlled precursor or border controlled precursor. For example, if the offence involves a quantity of pills which contain a mixture of pseudoephedrine and other substances, the prosecution will be able to prove the quantity of pseudoephedrine involved by conducting a quantitative analysis on the pills to show the quantity of pure pseudoephedrine the pills contain. There is no capacity for dilute quantities to be prescribed for controlled precursors or border controlled precursors.

Proposed section 312.2 - Working out quantities where different kinds of drugs, plants or precursors are involved

This proposed section sets out a method of calculating the relevant quantity of a controlled substance or border controlled substance where there is more than one kind of controlled substance or border controlled substance involved in an offence. This is important because the offences only refer to controlled substances or border controlled substances in a generic way, and these terms are defined to mean any substance that is listed in the relevant interim regulation or emergency determination. For example, a person may be charged with trafficking controlled drugs, but the offence involves two kinds of controlled drug (heroin and ecstasy). This proposed section establishes a way of calculating the quantity of controlled drug for the purposes of prosecuting a single offence of this kind.

Proposed subsection 312.2(1) sets out the different offences in proposed Part 9.1 for which this kind of calculation is available.

Proposed subsections 312.2(2) and (3) sets out formulas for calculating the quantity of controlled substances or border controlled substance using the concept of the requisite fraction. The relevant quantity (either trafficable, marketable or commercial) is involved if the sum of the applicable requisite fractions of each of the controlled substances or border controlled substances is greater than one. Under proposed subsection (3), a requisite fraction means the actual quantity of the controlled substance or border controlled substance divided by the smallest listed relevant quantity for that grade and substance.

This can be illustrated using the example of a prosecution for trafficking a controlled drug, where the defendant sells a substance containing two kinds of drug, heroin and amphetamine. To determine whether the amount of controlled drug in total is a commercial quantity, the components can be combined in accordance with the formula in proposed subsections (2) and (3). Though the quantity of each heroin and amphetamine may amount to no more than a fraction of the commercial quantity for each drug (the requisite fraction), the formula in proposed subsection (2) enables the fractions to be totalled. If the total of the fractions is 1.0 or more, this means that the offender has dealt with a commercial quantity of a controlled drug. This is consistent with the practice of defining offences by reference to the generic terms controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor.

Using this method, the offence of trafficking a commercial quantity of controlled drug will cover the case of an individual who sells a substance that is a mixture of half of a commercial quantity of heroin and half of a commercial quantity of amphetamine.

Proposed subsection 312.2(4) clarifies that where the controlled drug is in a mixture, the method of determining the requisite fraction in proposed subsection (3) can be employed using either (a) the quantity of drug in the pure form, or (b) the dilute quantity of drug, if a dilute quantity is listed in interim regulations.

Proposed Division 313 - Defences and alternative verdicts

This proposed Division contains offences that apply to the offences in proposed Part 9.1: some offences apply generally, while some do not apply to proposed Division 307 (import-export offences) to reflect the current scheme in the Customs Act. This proposed Division does not affect the application of the general provisions in Chapter 2 of the Criminal Code governing circumstances in which there is no criminal responsibility (Part 2.3). The most significant of these for the serious drug offences is section 10.5 (lawful authority) which will be discussed in the commentary on proposed section 313.1.

Two defences are complete defences that have been uniquely developed for this package of Commonwealth offences: these relate to conduct that is justified or excused by or under a law of a State or Territory (proposed section 313.1) and where there is a reasonable belief that conduct is justified or excused by or under a law (proposed section 313.2). Three alternative verdict provisions operate as qualified defences: under these provisions (proposed sections 313.3 - 313.5) a defendant does not completely escape criminal liability but may be found guilty of an offence with the same or lesser penalty.

Proposed section 313.1 - Defence-conduct justified or excused by or under a law of a State or Territory

The serious drug offences in proposed Part 9.1 are designed to target the illicit drug trade. Accordingly, defences are required to recognise the many legitimate uses of controlled substances in our community. Many of these legitimate uses are authorised through State and Territory licensing or permit schemes established under health, industrial or other regulatory schemes. Proposed Part 9.1 preserves the operation of those State and Territory schemes.

Under proposed section 313.1 it will be a defence to the federal serious drug offences if the conduct constituting the offence is justified or excused under a law of a State or Territory. Under section 13.3 of the Criminal Code, the defendant bears an evidential burden of proof for this defence: this means that the defendant has the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matters in proposed section 313.1 exist. If the defendant meets this burden, and the prosecution is not able to disprove the defence beyond reasonable doubt, the defendant does not commit the offence against proposed Part 9.1.

That defence will not apply to the offences relating to import and export (proposed Division 307) as the Commonwealth maintains complete control over the regulation of import and export activities through the Customs Act. The general Criminal Code defence of lawful authority (section 10.5) will apply to conduct that is authorised under that Act or other Commonwealth laws (such as the Narcotic Drugs Act, which establishes a licensing scheme for the manufacture of narcotic drugs).

Proposed section 313.2 - Defence-reasonable belief that conduct is justified or excused by or under a law

This defence operates to ensure that administrative errors or misunderstandings occurring in the course of bona fide legitimate business do not result in convictions for offences that are intended only to target those involved in the illicit drug trade. In this type of situation, a person would not be covered by the defence in proposed section 313.1 nor the general defence in section 10.5, because there would be no actual justification or excuse under law if that lawful authority was defective.

Proposed section 313.2 applies where, at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was authorised under a law of the Commonwealth, a State or Territory. This defence applies to all the offences in proposed Part 9.1 of the Criminal Code. Under section 13.3(3) of the Criminal Code, the defendant bears an evidential burden of proof for this defence: this means that the defendant has the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matters in proposed section 313.1 exist. If the defendant meets this burden, and the prosecution is not able to disprove the defence beyond reasonable doubt, the defendant is not criminally responsible for an offence against proposed Part 9.1.

This defence is designed to protect those who reasonably believe that they hold a valid licence to use the relevant controlled substance or border controlled substance but do not in fact have that a valid licence due to an administrative or technical problem (for example, if the relevant authority tells them their licence has been renewed but in fact it has not because the renewal was not authorised by the appropriate person). This defence will ensure that legitimate industry will not be inadvertently caught by the new offences.

Proposed section 313.3 - Alternative verdict-offence not proved

This provision enables the trier of fact (judge or jury) to find a person guilty of an offence other than the offence charged and prosecuted. If the trier of fact is not satisfied that the person is guilty of the alleged offence but is satisfied beyond reasonable doubt that the person is guilty of another offence against proposed Part 9.1, the person can be found guilty for the other offence. The maximum penalty for the other offence cannot be greater than the maximum penalty for the alleged offence.

To find the person guilty of the other offence, the trier of fact must be satisfied that the defendant has been accorded procedural fairness in relation to that finding of guilt. While the term procedural fairness is not defined in this context, it is common to other existing alternative verdict provisions in the Criminal Code (for example, see sections 101.2 or 132.1(10)) and is necessary for the proper exercise of federal judicial power under Chapter III of the Constitution. According a defendant procedural fairness may involve, for example, ensuring that the case against the other offence is put to the defendant, and/or ensuring that all defences applicable to the other offence are made available to the defendant. However, it is likely that what will satisfy the procedural fairness requirement will differ in each case and is a matter about which the trier of fact must be satisfied.

This provision applies to all the offences in proposed Part 9.1.

This mechanism would apply where the prosecution charges a top tier offence, for example, trafficking commercial quantities of controlled drugs, but where the prosecution cannot prove that the quantities involved reached the commercial level. In that case, the trier of fact may find the defendant guilty of a lesser offence of the same kind, for example, trafficking marketable quantities of controlled drugs (25 years imprisonment), or trafficking a lesser quantity of controlled drugs (10 years imprisonment).

This provision would also apply where a person has been charged with a commercially motivated offence but successfully makes out the defence of absence of commercial purpose. For example, a person who possesses a parcel of drugs may be charged with the offence of trafficking marketable quantities of controlled drugs (proposed section 302.3), but the person may succeed in making out the defence in proposed subsection 302.5(2) by proving that he or she did not have the required commercial purpose. Under this alternative verdict provision, the trier of fact may find the person not guilty of the commercially motivated trafficking offence, but guilty of the offence of possessing controlled drugs under proposed section 308.1 (maximum 2 year penalty), so long as the defendant has been accorded procedural fairness in relation to the basic possession offence.

Proposed section 313.4 - Alternative verdict-mistake as to quantity of drug, plant or precursor

The defence of mistake as to quantity in proposed section 313.4 operates to protect a defendant who mistakenly believed that a lesser quantity of controlled substance or border controlled substance was involved from exposure to a maximum penalty for the offence charged. This defence is only available where the alleged offence originally charged involved a commercial or marketable quantity of the controlled substance or border controlled substance.

The qualified defence operates where the defendant can prove that at the time of the alleged offence he or she mistakenly believed that the quantity of the substance involved was less than the commercial quantity or marketable quantity originally charged. In those circumstances the trier of fact (judge or jury) may find the defendant not guilty of the offence involving the higher quantity and instead find the defendant guilty of a lesser offence involving the lower quantity. The appropriate lesser offence will depend on the quantity of substance that the defendant mistakenly believed was involved, but the maximum penalty for the lesser offence must be less than the maximum penalty for the alleged offence.

In order for the qualified defence to operate, it is not necessary for the defendant to prove that his or her belief as to quantity was a reasonable belief. However, to establish a mistake about the quantity of the controlled substance or border controlled substance, the defendant would need to show that he or she had considered the issue. In effect, the defendant must admit liability for dealing in the lesser quantity in order to make use of this alternative verdict provision. Under section 13.4 of the Criminal Code, the defendant bears a legal burden of proof in relation to showing that he or she was under a mistaken belief about the quantity of the drug, plant or precursor. This means that the defendant must establish the mistaken belief on the balance of probabilities (section 13.5 of the Criminal Code). A defendant who succeeds in proving mistake as to quantity may be subject to a lesser commercially motivated offence, but not a mere possession offence. For example, a defendant charged with trafficking a commercial quantity of controlled drug but who successfully made out this defence, would then face either of the two reduced charges of trafficking a marketable quantity (25 years imprisonment) or lesser quantity (10 years imprisonment).

This alternative verdict provision does not apply to the proposed Division 307 offences as alternative verdicts of this kind are not currently permitted for the analogous Customs Act offences.

Proposed section 313.5 - Alternative verdict-mistake as to identity of drug, plant or precursor

The defence of mistake as to identity in proposed section 313.5 operates to protect a defendant who mistakenly believed that he or she was dealing in another controlled substance or border controlled substance from exposure to a maximum penalty for the offence charged.

The qualified defence operates where the defendant can prove that at the time of the alleged offence he or she mistakenly believed that the identity of the substance involved was different from the substance originally alleged. The defence applies where, if the mistaken belief had been correct, the defendant would have been exposed to a lower penalty. In those circumstances the trier of fact (judge or jury) may find the defendant not guilty of the alleged offence and instead find the defendant guilty of a lesser offence. The appropriate lesser offence will depend on the identity and quantity of substance that the defendant mistakenly believed was involved, but the maximum penalty for the lesser offence must be less than the maximum penalty for the alleged offence.

In order for the qualified defence to operate, it is not necessary for the defendant to prove that his or her belief as to identity was a reasonable belief. However, the provision would not enable a person who intentionally ignores the identity of the controlled substance or border controlled substance to reduce his or her liability. To establish a mistake about the quantity of the controlled substance or border controlled substance, the defendant would need to show that he or she had considered the issue. Mistake as to the identity of a controlled substance or border controlled substance may have a significant impact on a person's liability. For example, a person who believed that he or she was selling 500 grams of cannabis, but who in fact sold 500 grams of heroin, would otherwise face a more serious charge and penalty. This provision ensures that the operation of the law is not unduly draconian.

Under section 13.4 of the Criminal Code, the defendant bears a legal burden of proof in relation to showing that he or she was under a mistaken belief about the identity of the controlled substance or border controlled substance. This means that the defendant must establish the mistaken belief on the balance of probabilities (section 13.5 of the Criminal Code). A defendant who succeeds in proving mistake as to identity may be subject to a lesser commercially motivated offence, but not a mere possession offence. For example, a defendant charged with trafficking a commercial quantity of controlled drug but who successfully made out this defence, would then face either of the two reduced charges of trafficking a marketable quantity (25 years imprisonment) or lesser quantity (10 years imprisonment).

This alternative verdict provision does not apply to the proposed Division 307 offences as alternative verdicts of this kind are not currently permitted for the analogous Customs Act offences.

Proposed Division 314-Drugs, plants, precursors and quantities

One of the important objectives of this Bill is to increase the uniformity of drug offences in Australia by implementing model serious drug offences developed in consultation with States and Territories. The next important step in achieving the goal of national consistency is for all jurisdictions to adopt consistent lists of illicit substances and threshold quantities. A Working Party has been established by the Ministerial Council on Drug Strategy to make recommendations about a uniform schedule of illicit substances and threshold quantities to be adopted by all Australian jurisdictions. The recommendations of the Working Party are not due to be released before late 2005.

As the Bill includes important new child protection offences and precursor offences, the proposal is not to delay the Bill waiting for the Working Party recommendations, but instead to include interim lists of drugs and quantities to be revised when the Working Party makes its recommendations. Proposed Division 314 contains those interim lists.

The MCCOC Report recommended that lists of controlled substances and threshold quantities be contained in interim regulations so that they can be updated quickly and therefore be responsive to changes in the illicit drug market. However, given the serious nature of the offences in proposed Part 9.1 (with some offences carrying the highest penalty available in Australia - life imprisonment), and the fact that the lists of controlled substances, border controlled substances and threshold quantities define the scope of those offences, it was considered that those lists should be contained in the parent Act and subject to full Parliamentary scrutiny.

To retain the capacity for the scheme to be responsive to rapid changes in the illicit drug market, proposed Division 301 of the Criminal Code allows new substances and quantities to be added through interim regulations and emergency determinations on a temporary basis when certain criteria are specified. The interim regulations and emergency determinations will be disallowable instruments, and will therefore also subject to some level of Parliamentary scrutiny.

Proposed Division 314 contains two different sets of interim lists - one set that applies to the import-export offences and another set that applies to the other offences which have broader application within Australia.

The set of lists applying to the import-export offences are the lists of 'border controlled drugs', 'border controlled plants', 'border controlled precursors' and threshold quantities contained in proposed sections 314.4-314.6. The import-export drug offences in the Bill are based on the current import-export offences in section 233B of the Customs Act, which will become redundant and are being repealed by this Bill. Accordingly, the lists of border controlled substances and threshold quantities have been based on the lists that apply to the current import-export offences under the Customs Act. This ensures that penalties for those offences will be no lower than those currently applying under the Customs Act. As these offences involve breaches of Australia's border integrity they are serious matters.

The sets of lists applying to the domestic offences are the lists of 'controlled drugs', 'controlled plants', 'controlled precursors' and threshold quantities contained in proposed sections 314.1-314.3. The domestic offences are new federal offences, that will overlap with State and Territory offences, and are based on the model offences in the MCCOC Report. It is on these domestic offences that national consistency most needs to be obtained (no other jurisdiction has offences covering import-export). Pending the availability of the model lists being developed by the Working Party, a minimal approach has been adopted with the domestic lists limited to a relatively small number of common illicit drugs and plants and precursor chemicals that can be used to manufacture those drugs and plants. On an interim basis, the threshold quantities for those substances have been set at a level that is consistent with the quantities prescribed by other jurisdictions that have introduced the model drug offences.

It is intended that the lists of 'controlled drugs', 'controlled plants', 'controlled precursors' and threshold quantities will be reconsidered and expanded after the Working Party's model lists are released.

All the quantities listed in proposed Division 314 are pure quantities. This means that where the prosecution is proving that a particular threshold quantity of a controlled drug or border controlled drug was involved in the commission of an offence, if that substance is contained in a mixture of other substances, the prosecution will need to prove that the mixture contained the relevant threshold quantity of the controlled drug or border controlled drug. Proposed paragraphs 312.1(1)(b) and 312.1(3)(b) contemplate that mixed (dilute) quantities may be prescribed for controlled drugs and border controlled drugs in addition to pure quantities. It is intended that mixed quantities of controlled drugs and border controlled drugs will be added to proposed Division 314 in the future, after the recommendations of the Working Party become available. When mixed quantities are prescribed it will not be necessary for the prosecution to prove that a mixture of substances contains a threshold quantity of pure controlled drug or pure border controlled drug. The prosecution will have the option of proving that the offence involved the relevant threshold quantity of a mixture of substances containing a controlled drug or a border controlled drug.

Proposed section 314.1 Controlled drugs

Proposed subsection 314.1(1) lists the controlled drugs that are the subject of the drug offences in proposed Part 9.1, except the offences relating to import-export. It also lists the trafficable, marketable and commercial quantities that apply to each of the controlled drugs that are listed. As outlined in the overview to proposed Division 314, the list of controlled drugs is limited to a relatively small number of common illicit drugs pending the availability of model lists being prepared by the Working Party. The threshold quantities for those substances have been set at a level that is consistent with the quantities prescribed by other jurisdictions that have introduced the MCOCC Report.

Proposed subsection 314.1(2) extends the definition of controlled drugs to include substances that are drug analogues to substances listed in proposed subsection 314.1(1). Drug analogues are substances that have similar chemical structure to a controlled drug and may be reasonably expected to give rise to a similar pharmacological effect to that of a controlled drug.

Proposed subsections 314.1(3)-(5) ensure that the threshold quantities for substances that are controlled drugs because they are drug analogues of substances listed in proposed subsection 314.1(1) will be the same as those prescribed in subsection 314.1(1) for the controlled drug to which the drug analogue relates.

Proposed section 314.2 Controlled plants

Proposed section 314.2 lists the controlled plants that are covered by the drug offences in proposed Part 9.1, except the offences relating to import-export. This list is limited to one common illicit plant, cannabis, at this interim stage pending the availability of model lists being prepared by the Working Party.

The threshold quantities (trafficable, marketable and commercial) for this controlled plant have been set at a level that is consistent with the quantities prescribed by other jurisdictions that have introduced the MCOCC Report. Each of the quantities is prescribed by weight and by number of plants. This approach gives discretion to the prosecution as to which quantitative measure to apply. If the offence involves a small number of very large cannabis plants it may be appropriate to apply the weight measure. If the offence involves a large number of seedlings, the number of plants may be the appropriate measure.

Proposed section 314.3 Controlled precursors

Proposed subsection 314.3(1) lists the controlled precursors that are the subject of the precursor offences in proposed Part 9.1, except the offences relating to import-export. It also lists the marketable and commercial quantities that apply to each of the controlled precursors that are listed. As outlined in the overview to proposed Division 314, the list of controlled precursors is limited to a relatively small number of precursors that can be used to manufacture the controlled drugs listed in proposed subsection 314.1(1).

The marketable and commercial quantities listed in proposed subsection 314.3(1) have been set to accord with the amount of the controlled precursor that is needed to manufacture the corresponding threshold quantity of a controlled drug. For example, it takes approximately 400 grams of pseudoephedrine to manufacture a marketable quantity of the controlled drug, methamphetamine (250 grams), so 400 grams has been prescribed as the marketable quantity of the controlled precursor, pseudoephedrine.

Proposed subsection 314.3(2) extends the definition of controlled precursors to include substances that are salts or esters of the substances listed in proposed subsection 314.1(1). Salts or esters of controlled precursors are included as they represent equivalent chemical forms in which the controlled precursors listed in this proposed section are commonly available.

Proposed section 314.4 Border controlled drugs

Proposed subsection 314.4(1) lists the border controlled drugs that are the subject of the drug import-export offences in proposed Part 9.1. It also lists the marketable and commercial quantities that apply to all but one of the border controlled drugs that are listed.

As outlined in the overview to proposed Division 314, the list of border controlled drugs and threshold quantities have been based on the lists that apply to the current import-export offences in the Customs Act. This ensures that penalties for those offences will be no lower than those currently applying under the Customs Act.

The list of border controlled drugs in proposed subsection 314.4(1) includes six substances that are not currently covered by the drug offences in section 233B the Customs Act.

These substances are 2,5-dimethoxy-4-n-propylthiophenethylamine (2C-T-7), 2,5-dimethoxy-4-ethylthiophenethylamine (2C-T-2), 2,5-dimethoxy-4-iodophenethylamine (2C-I), 5-methoxy-alpha-methyltryptamine (5-MeO-AMT), 5-methoxy-N,N-diisopropyltryptamine (5-Meo-DiPT) and methcathinone. These drugs are not known to have any current medical or industrial application in Australia and there is evidence to support their availability on the illicit market in Australia. Most of these new drugs have recently been included in Schedule 9 (Prohibited Substances) of the Standard for the Uniform Schedule of Drugs and Poisons.

Quantities for the additional border controlled drugs have been set by adopting quantities prescribed under the Customs Act for drugs that have similar strength and effect. Quantities have not been prescribed for one of the new drugs, methcathinone, because none of the drugs currently listed under the Customs Act are sufficiently comparable to methcathinone to warrant the adoption of its quantities. The consequence is that the penalty for importation of methcathinone, and related offences, will be limited to a maximum of 10 years imprisonment. It is intended that quantities for methcathinone will be prescribed following consideration of the recommendations of the Working Party.

Proposed subsection 314.4(2) extends the definition of border controlled drugs to include substances that are drug analogues to substances listed in proposed subsection 314.4(1). Drug analogues are substances that have similar chemical structure to a controlled drug and may be reasonably expected to give rise to a similar pharmacological effect to that of a controlled drug. This provision corresponds with the provision currently contained in the list of narcotic substances in Schedule VI of the Customs Act.

Proposed subsections 314.4(3)-(4) ensure that the threshold quantities for substances that are controlled drugs because they are drug analogues of substances listed in proposed subsection 314.1(1) will be the same as those prescribed in proposed subsection 314.1(1) for the controlled drug to which the drug analogue relates.

Proposed section 314.5 Border controlled plants

Proposed section 314.5 lists the border controlled plants that are the subject of the drug import-export offences in proposed Part 9.1. The plants listed include plants from which border controlled drugs can be derived.

Proposed section 314.5 also lists marketable and/or commercial quantities for some of the controlled plants that are listed. As the Customs Act does not prescribe separate quantities for these plants, the quantities prescribed have been set at a level that is consistent with the quantities prescribed by other jurisdictions that have introduced the MCOCC Report. Quantities for some plants have not been prescribed as no quantities have yet been prescribed by the other jurisdictions. It is intended that quantities will be prescribed following consideration of the recommendations of the Working Party.

Proposed section 314.6 Border controlled precursors

Proposed subsection 314.6(1) lists the border controlled precursors that are the subject of the import-export offences in proposed Part 9.1. It also lists marketable and commercial quantities for most of the border controlled precursors that are listed.

The list of border controlled precursors in proposed subsection 314.6(1) includes precursor chemicals currently regulated under section 233BAA of the Customs Act as 'tier 1 goods'. The Customs Act does not include threshold quantities for precursors in the same way as it does for drugs. The threshold quantities prescribed in proposed section 314.6 have been calculated according to the quantity of the precursor it takes to manufacture the equivalent threshold of a border controlled drug.

Quantities have not been prescribed for three of the border controlled precursors. It is intended that quantities will be prescribed following consideration of the recommendations of the Working Party.

Proposed subsections 314.3(2)-(3) extend the definition of controlled precursors to include substances that are salts or esters of the substances listed in proposed subsection 314.1(1), and substances that are immediate precursors of the substances listed in proposed subsection 314.1(1). Salts or esters of controlled precursors are included as they represent equivalent chemical forms in which the controlled precursors listed in this proposed section are commonly available. Immediate precursors of controlled precursors are included as they represent substances from which controlled precursors may be directly obtained via a chemical manufacturing process.

PART 2 - CONSEQUENTIAL AND TRANSITIONAL PROVISIONS

Crimes Act 1914

Proposed Item 2

This proposed item inserts a definition of 'controlled substance' into the Crimes Act 1914. That term is defined as a controlled drug, a border controlled drug, a controlled plant, a border controlled plant, a controlled precursor or a border controlled precursor within the meaning of proposed Part 9.1 of the Criminal Code, which are the substances covered by the serious drug offences in that Part. Proposed section 300.2 defines controlled drugs, border controlled drugs, controlled plants, border controlled plants, controlled precursors and border controlled precursors as substances that are prescribed in interim regulations or an emergency determination made under proposed section 301.5 and 301.10.

Proposed Item 3

This proposed item extends the controlled operation provisions in Division 2 of Part IAB of the Crimes Act 1914 to apply to Commonwealth offences involving controlled substances that carry maximum penalties of 3 years imprisonment or more. This is done by changing the term 'illegal drug dealings' in paragraph 15HB(a) to 'controlled substances'. The purpose of this amendment is to include in the definition of 'serious Commonwealth offence' all offences in proposed Part 9.1 of the Criminal Code that carry maximum penalties of three years imprisonment or more.

Proposed Items 4-13

Section 22 of the Crimes Act 1914 enables a court to order that a person charged with, or convicted of, a serious drug offence remain in Australia and/or surrender possession of an Australian passport. The purpose of proposed items 4-13 is to ensure that section 22 applies to the commercially motivated drug offences in proposed Part 9.1 of the Criminal Code.

Section 22 currently applies to 'serious narcotics offences' involving trafficable quantities of 'narcotic substances'. Proposed items 4-13 replace those terms with references to 'serious drug offences' and 'controlled substances' which are more appropriate labels given that the offences in proposed Part 9.1 of the Criminal Code relate to a broader range of substances than narcotics. The class of offences covered by section 22 will no longer be defined by reference to trafficable quantities, as quantity alone is not necessarily wholly determinative of the maximum penalty that will apply under proposed Part 9.1 of the Criminal Code.

Customs Act 1901

Proposed Items 14-19

These proposed items repeal the definitions of terms that will no longer be used in the Customs Act as a result of consequential amendments to that Act to remove drug offences that will be covered by offences in Division 307 of the Criminal Code.

Proposed Items 20-21

These proposed items define the terms "border controlled drug" and "border controlled plant" as they are defined in the Criminal Code. Proposed section 300.2 defines border controlled drugs and border controlled plants as substances that are listed or described as such in Division 314 of the proposed Part 9.1 of the Criminal Code, or prescribed as such in regulations made under proposed section 301.3 of the Criminal Code or a determination made under proposed section 301.8 of the Criminal Code.

Proposed Item 22

This proposed item defines the term "narcotic substance" as a border controlled drug or a border controlled plant.

Proposed Item 23

This proposed item changes the definition of the term "suspicious substance" so that it refers to offences against Division 307 of the Criminal Code rather than offences against the Customs Act. This is because all non-regulatory offences in the Customs Act relating to narcotic substances will be moved to Division 307 of the Criminal Code.

Proposed Item 24

This proposed item repeals the definition of 'trafficable quantity', as that term will no longer be used in the Customs Act as a result of consequential amendments to that Act to remove drug offences that will be covered by offences in Division 307 of the Criminal Code.

Proposed Item 25

This proposed item repeals subsection 4(4), which deems goods from which a narcotic substance can be obtained to be narcotic goods. Subsection 4(4) is no longer necessary as the scope of the term 'narcotic substance' (and therefore the scope of the term 'narcotic goods') will be determined by the definitions of 'border controlled drugs' and 'border controlled plants' under the Criminal Code.

Proposed Item 26

The purpose of this proposed item is to make clear that, notwithstanding the transfer of drug ('narcotics') offences from the Customs Act to Division 307 of the Criminal Code, importing or exporting narcotic goods in breach of a prohibition under section 50 or section 112 of the Customs Act should continue be construed as a contravention of the Customs Act. This is necessary to ensure that provisions in the Customs Act conferring enforcement powers in relation to 'contraventions of this Act' continue to apply to the prohibited importation or exportation of narcotic substances.

Proposed Item 27

The purpose of this proposed item is to broaden the scope of the monitoring and audit powers in subdivision J of Division 1 of Part XII of the Customs Act so that they can be used for the purpose of assessing whether a person is committing an offence against Division 307 of the Criminal Code. This is because all non-regulatory offences in the Customs Act relating to narcotic substances will be moved to Division 307 of the Criminal Code.

The monitoring and audit powers in the Customs Act tend to be limited to assessing whether a person is complying with a 'Customs-related law'. This proposed item broadens the definition of 'Customs-related law' in section 4B of the Customs Act to include the offences in Division 307 of the Criminal Code.

Proposed Items 28 and 29

Subsection 50(7) of the Customs Act makes it an offence to contravene a condition or requirement of licence or permission, granted under the regulations, in relation to narcotic goods. That offence will remain in the Customs Act as it is a regulatory offence. The penalty for the offence is currently specified in section 235 of the Customs Act. As section 235 is being repealed, the purpose of these proposed items is to move the penalty specified in section 235 so that it is located with the offence provision in subsection 50(7). That penalty will remain unchanged. Proposed item 29 repeals subsection 50(8).

Proposed Item 30

The purpose of this proposed item is to ensure that any substance or plant that is determined to be a border controlled substance under proposed section 301.8 or 301.9 of the Criminal Code will automatically become a 'prohibited import' under the Customs Act subject to the exemptions and authorisation processes set out in regulation 5 of the Customs (Prohibited Imports) Regulations 1956. It does this by deeming such substances or plants to be included in schedule 4 to the Customs (Prohibited Imports) Regulations 1956, which lists the substances for which importation is prohibited under regulation 5.

Proposed Items 31 and 32

Subsection 112(2BC) of the Customs Act makes it an offence to contravene a condition or requirement of licence or permission, granted under the regulations, in relation to narcotic goods. That offence will remain in the Customs Act as it is a regulatory offence. The penalty for the offence is currently specified in section 235 of the Customs Act. As section 235 is being repealed, the purpose of these proposed items is to move the penalty specified in section 235 so that it is located with the offence provision in subsection 112(2BC). That penalty will remain unchanged. Proposed item 32 repeals subsection 112(2BD).

Proposed Item 33

The purpose of this proposed item is to ensure that any substance or plant that is determined to be a border controlled substance under proposed section 301.8 or 301.9 of the Criminal Code will automatically become a 'prohibited export' under the Customs Act subject to the exemptions and authorisation processes set out in regulation 10 of the Customs (Prohibited Exports) Regulations 1958 (for drugs and plants) and in regulation 10AB of the Customs (Prohibited Exports) Regulations 1958 (for precursors). It does this by deeming border controlled drugs and plants to be included in schedule 8 to the Customs (Prohibited Exports) Regulations 1958, which lists the substances for which exportation is prohibited under regulation 10. It deems border controlled precursors to be included in schedule 9 to the Customs (Prohibited Exports) Regulations 1958, which lists the substances for which exportation is prohibited under regulation 10AB.

Proposed Item 34

The purpose of this proposed item is to broaden the scope of the search powers in Subdivisions C, E and F of Division 1 of Part XII of the Customs Act so that they can be used to investigate suspected offences against Division 307 of the Criminal Code. This is necessary because all non-regulatory offences in the Customs Act relating to narcotic substances will be moved to Division 307 of the Criminal Code.

The search powers in the Customs Act can generally only be exercised where there are reasonable grounds for suspecting the presence of 'evidential material'. 'Evidential material' is defined in section 183UA as 'a thing relevant to [an]...offence'. This proposed item broadens the definition of 'offence' to include offences against Division 307 of the Criminal Code.

Proposed Item 35

The purpose of this proposed item is to ensure that whenever a power under Part XII of the Customs Act is extended to apply to offences against Division 307 of the Criminal Code, that power will also be extended to apply to the offence of being an accessory after the fact to the commission of an offence against Division 307. The 'accessory after the fact' offence in section 6 of the Crimes Act 1914 covers those who help others escape punishment for a Commonwealth offence, or help them dispose of the proceeds of a Commonwealth offence.

There is no need for powers conferred under Part XII to be expressly extended to other types of offences ancillary to Division 307 offences (such as attempt and conspiracy) as Chapter 2 of the Criminal Code already extends all references to the Division 307 offences to include those ancillary offences (see in particular section 11.6 of the Criminal Code).

Proposed Item 36

The purpose of this proposed item is to ensure that whenever a power under Part XII of the Customs Act is extended to apply to offences against Division 307 of the Criminal Code, that power will also be extended to apply to offences against sections 141.1, 142.1, 142.2 or 149.1 of the Criminal Code that relate to Division 307 offences. Sections 141.1, 142.1, 142.2 or 149.1 of the Criminal Code contain offences of bribery, corruption, abuse of public office, and obstructing a Commonwealth public official.

Proposed Items 37-50

The purpose of these proposed items is to broaden the scope of the general regulatory powers in Subdivision B of Division 1 of Part XII of the Customs Act so that they can be used for the purposes of investigating potential offences under Division 307 of the Criminal Code, or enforcing those provisions. This is necessary because all non-regulatory offences in the Customs Act relating to narcotic substances will be moved to Division 307 of the Criminal Code.

The powers that are broadened in that way are:

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the power of the commander of a Commonwealth ship or aircraft to request to board ships (item 37-39),

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the power of the commander of a Commonwealth aircraft to request the pilot of another aircraft to land for boarding (item 40),

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the power of Customs officers to board and search ships and aircraft (item 41),

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the power of Customs officers to arrest without warrant persons found on a ship or aircraft reasonably suspected of having committed a specified offence (items 42-44),

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the power of Customs officers to seize without warrant any narcotic goods found on the ship or aircraft - broadened to apply to the seizure of controlled drugs or controlled plants within the meaning of proposed Part 9.1 of the Criminal Code (item 22 defines narcotic substance as a controlled drug or a controlled plant within the meaning of the Criminal Code),

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the power of Customs officers to detain or move ships or aircraft (items 45-47), and

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the power of Customs officers to move or destroy hazardous ships that are suspected of being involved in the contravention of a specified Act (items 48-50).

Proposed Item 51

This proposed item amends the arrest without warrant provision in the Customs Act to delete words that are redundant. Section 11.6 of the Criminal Code already ensures that all references to offences include ancillary offences to that offence, such as attempt and conspiracy, except where there is a contrary intention. There was a risk that leaving those words in paragraph 210(1)(a) would create a contrary intention were those words not to be included in new paragraphs in that section referring to new offences against the Criminal Code.

Proposed Items 52 and 53

The purpose of these proposed items is to broaden the scope of the power to arrest without warrant in section 210 of the Customs Act so that it can be used to arrest a person where there are reasonable grounds for believing that the person has committed an offence against:

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proposed Division 307 of the Criminal Code, or

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proposed section 308.2 of the Criminal Code (offence of possessing controlled precursors) where the precursor involved is reasonably suspected of having been illegally imported or intended for illegal export.

The extension of the power to encompass Division 307 offences is necessary to preserve existing powers because all non-regulatory offences in the Customs Act relating to narcotic substances will be moved to Division 307 of the Criminal Code.

The power has been extended to offences against section 308.2 to cover the situation where a Customs officer finds a person in possession of a controlled precursor in circumstances suggesting commission of that offence but does not necessarily have grounds to believe that the person has imported or exported that precursor. Given the role of Customs officers, this power has been limited to circumstances where there is a nexus to illegal import or export.

It is not necessary to extend the power in a similar manner to offences against proposed section 308.1 (possessing controlled drugs) because Division 307 includes drug possession offences with a nexus to import or export.

Proposed Item 54

This Bill broadens the investigation and enforcement powers in the Customs Act to ensure that the powers that were previously exercisable in relation to drug offences against the Customs Act will continue to apply to those offences after they have been transferred to Division 307 of the Criminal Code. There is a degree of overlap between the conduct that is covered by the offences in Division 307 and other drug offences in proposed Part 9.1 of the Criminal Code. For that reason, when evidence is obtained in the exercise of powers under the Customs Act in relation to a suspected offence against Division 307 of the Criminal Code, that evidence is likely to also constitute evidence of another offence or offences under proposed Part 9.1 of the Criminal Code, such as trafficking a controlled drug under Division 302. This proposed item inserts a new provision into the Customs Act to ensure that any evidence obtained in the exercise of powers under the Customs Act can be used for the purposes of investigating or prosecuting any offence against proposed Part 9.1 of the Criminal Code. The provision is inserted to avoid any doubt that may otherwise exist about whether the evidence could be used in that way.

Proposed Item 55

Section 229A provides for the forfeiture of the proceeds of drug trafficking where there is a nexus with the importation or exportation of drugs in contravention of the Customs Act. This proposed item inserts a note to alert the reader that, even though all non-regulatory drug offences have been moved to the Criminal Code, the import or export of a drug in breach of a prohibition under the Customs Act will continue to be a contravention of the Customs Act.

Proposed Items 56 - 59

The purpose of these proposed items is to narrow the scope of the offence of assembly for unlawful purposes in section 231 of the Customs Act so that it no longer applies to narcotic goods, and to relocate the penalty for the remainder of the offence from section 235 (which is being repealed) into the offence provision itself. The scope of the section 231 offence is being narrowed to exclude narcotic goods because that portion of the offence will be covered by the offences in Division 307 of the Criminal Code. It is unnecessary for Division 307 to expressly include an unlawful assembly offence of this type due to the automatic application of the extensions of criminal responsibility in Chapter 2 of the Criminal Code. Chapter 2 of the Criminal Code arguably also makes the remainder of the offence in section 231 redundant however the repeal of that portion of the offence was beyond the scope of this Bill.

Proposed Item 60

This proposed item inserts a note into subsection 233A(1A) alerting the reader that most offences relating to narcotic goods are located in proposed Part 9.1 of the Criminal Code (the exceptions are the regulatory offences in sections 50 and 112 which are to be retained in the Customs Act). It also changes the heading to that section to remove the words "goods that are not narcotic goods" as the retention of those words may suggest the existence of another section in the Customs Act outlining the situation in relation to narcotic goods and that section (section 233AC) is being repealed as all non-regulatory drug offences are being relocated to the Criminal Code.

Proposed Item 61

This proposed item repeals sections 233AC and 233B of the Customs Act because the offences created by those sections are being relocated to Division 307 of the Criminal Code.

The offence in section 233AC covers masters of ships and pilots of aircraft who use their ships or aircraft, or allow them to be used, to smuggle or import or export narcotic goods. It is unnecessary for Division 307 to expressly include an offence of this type due to the automatic application of the extensions of criminal responsibility in Chapter 2 of the Criminal Code.

Section 233B contains the bulk of the narcotics offences in the Customs Act. The automatic application of the extensions of criminal responsibility in Chapter 2 of the Criminal Code has meant that it has not been necessary to provide for all of those offences expressly in Division 307 of the Criminal Code as they are ancillary to the core offences of drug importation and exportation. The offences in Division 307 are structured differently to the offences in section 233B to remedy legal vulnerabilities with the structure of the section 233B offences, which have been the subject of legal challenge. The offences in Division 307 are structured so that the issue of quantity of drug is placed before the arbiter of fact (judge or jury) and forms an element of the offence to be proved by the prosecution beyond reasonable doubt. The section 233B offences are currently structured so that the issue of quantity is never a matter for the jury but only a matter relevant to the judge when sentencing (as provided in the penalty provision in section 235).

Proposed Items 62 and 63

These proposed items broaden the scope of section 233BA of the Customs Act to apply to the offences in proposed Part 9.1 of the Criminal Code. Section 233BA of the Customs Act provides that certain evidentiary certificates of analysts are admissible in any proceedings for drug offences (and certain other offences) as prima facie evidence of the matters in the certificate. The evidentiary certificates relate to the characteristics of the drug or other substance in relation to which the offence is alleged to have been committed.

Proposed Item 64

This proposed item repeals section 235 of the Customs Act, which prescribes penalties for a range of narcotics offences under the Customs Act. Most of the offences to which this provision relates have been relocated to the Criminal Code. For the remaining regulatory offences in subsections 50(7) and 112(2BC), the penalty prescribed in section 235 is being relocated to the offence provisions themselves.

Proposed Item 65

This proposed item inserts a note to alert the reader that, even though all non-regulatory drug offences have been moved to the Criminal Code, the import or export of a drug in breach of a prohibition under the Customs Act will continue to be a contravention of the Customs Act.

Proposed Item 66

The table in Schedule VI to the Customs Act lists all the drugs that are 'narcotic substances' for the purposes of that Act. This proposed item repeals Schedule VI as narcotic substances will be defined as controlled drugs and controlled plants under the Criminal Code. Proposed section 300.2 of the Criminal Code defines controlled drugs and controlled plants as substances that are prescribed in the regulations or a determination made under proposed section 301.5.

Proceeds of Crime Act 2002

Proposed Item 67

The proposed item amends the definition of 'serious offence' in the Proceeds of Crime Act 2002 so that it will include those offences under proposed Part 9.1 of the Criminal Code that are punishable by a term of imprisonment for 3 years or more.

Surveillance Devices Act (No. 2) 2004

Proposed Items 68-69

The purpose of these proposed items is to ensure that the emergency authorisation provisions in the Surveillance Devices Act apply to the offences in proposed Part 9.1 of the Criminal Code, excluding the less serious possession offences in section 308.1 and 308.2. The emergency authorisation provisions in the Surveillance Devices Act specify the special circumstances in which surveillance device warrants may be issued by a person other than a judicial officer.

Telecommunications (Interception) Act 1979

Proposed Items 70-74

These proposed items amend the Telecommunications (Interception) Act 1979 to ensure that law enforcement agencies, including the Australian Crime Commission and the AFP, can seek telecommunications interception warrants in connection with the investigation of serious drug offences under proposed Part 9.1 of the Criminal Code in a manner consistent with the current interception regime. Those offences include all the offences in proposed Part 9.1 of the Criminal Code with the exception of the possession offences in Division 308 which have maximum penalties of 2 years imprisonment.

Under the Telecommunications (Interception) Act there are two classes of offences for which telecommunications interception warrants can be obtained. Prior to issuing a telecommunications interception warrant to an agency, an issuing authority must be satisfied of a range of matters, including that there are reasonable grounds for suspecting that a person is using or likely to use the telecommunications service, and that information that would assist in the investigation of a class 1 or class 2 offence could be obtained by interception of that service.

For class 2 warrants, the issuing authority must consider a number of additional factors, namely the privacy of the person of interest and the gravity of the alleged conduct constituting the offence. Under the current interception scheme, offences punishable under section 235 of the Customs Act 1901, including narcotics importation contrary to section 233B of that Act, are classified as class 1 offences, whilst other drug trafficking offences are classified as class 2 offences. These proposed items maintain this distinction by making the new import-export offences in Division 307 of the Criminal Code class 1 offences, and making the remaining serious drug offences in the Criminal Code (excluding the less serious 2 year possession offences in Division 308) class 2 offences.

The classification of the import-export offences as class 1 offences and other serious drug offences as class 2 offences does not create any impediment to effective enforcement of those offences. Section 67 of the Telecommunications (Interception) Act enables information lawfully obtained under a class 1 warrant to be used or passed on to another agency for the purposes of investigating a class 2 offence or other prescribed offence.

Application of amendments to conduct before and after commencement

Proposed Item 75

The purpose of this proposed item is to clarify that the reforms to drug offences implemented by schedule 1 to this Bill do not have any retrospective effect, and to clarify the situation for conduct that spans both the current and new schemes.

Proposed subitem (2) prevents any retrospective effect by ensuring that new the new offences in Schedule 1 do not apply to conduct engaged in before the commencement of Schedule 1. That conduct will continue to be covered by the current law.

Proposed subitem (3) ensures that the current law will continue to apply to criminal conduct that spans both the current and new schemes. Conduct pertaining to a conspiracy offence is an example of conduct that may span both schemes as that type of criminal conduct may be engaged in over a considerable period of time. In those circumstances it is important that conduct engaged in after the commencement of the new scheme can be alleged to form part of the criminal conduct of an offence which began to be engaged in before the commencement of the new scheme. Applying the current law rather than the new law in these circumstances ensures that there will never be any retrospective application of the new laws.

Proposed subitem (4) prevents double-jeopardy and other unfairness by precluding a person from being simultaneously prosecuted for an offence against the current law and the new law in relation to the same conduct.

Transitional regulations

Proposed Item 76

This proposed item provides the Governor-General with the power to make regulations to provide for transitional matters arising as a consequence of the reforms to serious drug offences made by this Schedule.

Schedule 2 - Involvement of children in armed conflict

Criminal Code Act 1995

These proposed items amend sections 268.68 and 268.88 of the Criminal Code Act 1995, to give effect to an obligation under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.

Section 268.68 applies to conduct that occurs in the course of an international armed conflict, while section 268.88 applies to conduct occurring in the course of a non-international armed conflict.

In both cases, the sections provide that it is an offence to use persons under the age of 18 years to participate actively in hostilities other than as members of national armed forces, to conscript persons under that age into an armed force or group other than national armed forces and to enlist persons under that age into an armed force or group other than national armed forces. The maximum penalties for this conduct are imprisonment for 17 years, 15 years and 10 years, respectively.

Schedule 3 - Proceeds of crime orders

Proceeds of Crime Act 2002

The amendments to the Proceeds of Crime Act 2002 are technical amendments that give effect to existing policy intentions of the Proceeds of Crime Act 2002 and the Bankruptcy Act 1966. The current policy intention is to enable a court to make a restraining order against a person's property which has vested in a trustee under the Bankruptcy Act 1966. The amendments will improve the operation of this policy.

Proposed Item 1 - After paragraph 17(2)(a)

This proposed item allows a restraining order to be made over all or specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966.

Proposed Item 2 - After paragraph 17(2)(b)

This proposed item allows a restraining order to be made over property other than specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966.

Proposed Item 3 - Paragraph 17(3)(b)

This proposed item removes the requirement for an authorised officer to provide the information in section 17(3)(b) Proceeds of Crime Act 2002. This is because the property is vested in a trustee under the Bankruptcy Act 1966 and therefore the need to prove the property is under the effective control of the suspect or is proceeds or an instrument of the offence is precluded.

Proposed Item 4 - After paragraph 18(2)(a)

This proposed item allows a restraining order to be made over all or specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966.

Proposed Item 5 - After paragraph 18(2)(b)

This proposed item allows a restraining order to be made over property other than specified property of a suspect when their property has vested in a trustee under Bankruptcy Act 1966.

Proposed Item 6 - Paragraph 18(3)(b)

This proposed item removes the requirement for an authorised officer to provide the information in section 18(3)(b) Proceeds of Crime Act 2002. This is because the property is vested in a trustee under the Bankruptcy Act 1966 and therefore the need to prove the property is under the effective control of the suspect or is proceeds or an instrument of the offence is precluded.

Proposed Item 7 - After paragraph 20(2)(a)

This proposed item allows a restraining order to be made over all or specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966.

Proposed Item 8 - After paragraph 20(2)(b)

This proposed item allows a restraining order to be made over property other than specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966.

Proposed Item 9 - Paragraph 20(3)(d)

This proposed item removes the requirement for an authorised officer to provide the information in section 20(3)(d) Proceeds of Crime Act 2002. This is because the property is vested in a trustee under the Bankruptcy Act 1966 and therefore the need to prove the property is under the effective control of the suspect is precluded.

Proposed Item 10 - Section 338

Proposed Item 10 inserts a definition of "bankruptcy property" into section 338 Proceeds of Crime Act 2002 to cover property of a person that is vested in a bankruptcy trustee under section 58(1) or section 249(1) of the Bankruptcy Act 1966.

Proposed Item 11 - Application

The amendments will enable orders made under the Proceeds of Crime Act 2002 to apply to property vested under the Bankruptcy Act 1966 before, on or after the commencement of these proposed items. However the amendments only enable proceeds of crime orders to be made after these amendments come into force and thus there is no retrospective effect.

Schedule 4 - Australian Federal Police Act

Australian Federal Police Act 1979

The Bill will insert two specific functions in the Australian Federal Police Act 1979 (AFP Act) to clarify the scope of the Australian Federal Police's (AFP's) assistance and cooperation with other law enforcement agencies, government regulatory agencies, and intelligence and security agencies both at the domestic and international level, and its participation in peace and stability operations in other countries. The Bill will also create an exception to the secrecy provision in the AFP Act to confirm that the AFP can disclose personal information with the person's consent.

The specific and incidental functions of the AFP mean that it has responsibility for a range of activities including investigating and enforcing breaches of Commonwealth legislation, overseas crimes with a national impact (eg terrorism), and trans-national criminal activity (eg people trafficking). The AFP's international responsibilities are significant. They include the deployment of Australian police overseas for the purposes of international peace and stability operations, as well as multilateral and bilateral law enforcement capacity-building. They also include providing assistance in major disaster situations such as in the aftermath of the Boxing Day tsunami.

AFP cooperation at the international level is vital for the continued effective operation of the AFP. Such activities are not expressly covered by any of the specific functions in section 8 of the AFP Act, but generally fall within the incidental category of the provision of police services in relation to the laws of the Commonwealth and the safeguarding of Commonwealth interests. With increasing globalisation of criminal and law enforcement activities, it is clearly appropriate to reflect the AFP's operational responsibilities on the face of the legislation. The amendments will confirm the AFP's ability to provide police services for the purposes of:

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assisting and cooperating with law enforcement organisations and government regulatory and intelligence bodies, both domestic and foreign, and

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establishing, developing and monitoring peace, stability and security in other countries.

In performing its functions, it is often necessary for the AFP to disclose personal information. The amendments will also clarify that, in the exercise of these functions, the Privacy Act 1988 (Privacy Act) does not prevent the AFP from disclosing personal information.

Proposed Item 1

Proposed Item 1 amends subsection 4(1) of the AFP Act by inserting a new definition of intelligence or security agency . This definition is inserted to assist with interpreting the specific functions inserted in the Act by proposed item 5.

Proposed Item 2

Proposed Item 2 amends subsection 4(1) of the AFP Act by inserting a new definition of law enforcement agency . This definition is inserted to assist with interpreting the specific functions inserted in the Act by proposed item 5.

Proposed Item 3

Proposed Item 3 amends subsection 4(1) of the AFP Act by inserting a new definition of police support services . This definition is inserted to assist with interpreting the specific functions inserted in the Act by proposed item 5.

Proposed Item 4

Proposed Item 4 amends subsection 4(1) of the AFP Act by inserting a new definition of regulatory agency . This definition is inserted to assist with interpreting the specific functions inserted in the Act by proposed item 5.

Proposed Item 5

Proposed Item 5 inserts two specific functions in subsection 8(1) of the Act to clarify the AFP's operational responsibilities in an environment of increasing globalisation of criminal and law enforcement activities and its continuing contribution to regional restoration of law and order assistance missions such as Regional Assistance Mission Solomon Islands (RAMSI), delivering capacity-building programs under the Law Enforcement Cooperation Program (LECP) and ongoing contributions to United Nations peace operations.

Proposed paragraph 8(1)(bf) provides that the AFP's functions include the provision of police services and police support services to assist and cooperate with law enforcement agencies, intelligence or security agencies and government regulatory agencies, both in Australia and overseas.

Proposed paragraph 8(1)(bg) provides that the AFP's functions include the provision of police services and police support services required to establish, develop and monitor peace, stability and security in foreign countries.

Subsection 4(1) of the Act defines police services to include 'services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise'. This term should be construed widely because of the range and unpredictability of the services the AFP can be required to provide.

The term police support services inserted by Proposed item 3 will mean services that are related to the police services provided by another Australian or foreign law enforcement agency, or services provided by an Australian or foreign intelligence or security agency or services provided by an Australian or foreign regulatory agency. This will ensure that the AFP can undertake activities that do not have an immediate, apparent nexus to traditional "police services". For example, educational activities such as instructing the police force of another country in the techniques of forensic investigation to build that country's expertise in that area.

Proposed Item 6

Proposed Item 6 repeals existing subsection 60A(2A) and replaces it with a new subsection 60A(2A). This amendment will provide that the secrecy provision in section 60A does not apply to a disclosure of prescribed information where that disclosure is authorised by the Commissioner under proposed subsection 60A(2B) or to a disclosure of personal information that is authorised by the Commissioner under proposed subsection 60A(2C). Proposed paragraph 60A(2A)(a) will replicate the exception to the secrecy provision under existing subsection 60A(2A). Proposed paragraph 60A(2A)(b) will create a new exception to the secrecy provision through the operation of proposed subsection 60A(2C) inserted by Proposed item 7.

Proposed Item 7

Proposed Item 7 inserts new subsections 60A(2C) and 60A(2D). Proposed subsection 60A(2C) will enable the Commissioner to authorise the disclosure of a person's personal information in circumstances where that person requests, or gives consent to, that disclosure. Examples include character and criminal history checks for pre-employment security assessments.

The amendment will put beyond doubt the AFP's ability to disclose criminal history checks and other personal information to a range of entities with the consent of the subject of the information. The disclosure of personal information with the consent of the person to whom it relates is consistent with Information Privacy Principle (IPP) 11.1(b) in the Privacy Act.

Proposed subsection 60A(2D) provides that proposed subsection 60A(2C) does not require the Commissioner to authorise a disclosure of personal information that is otherwise required or authorised under the AFP Act. For example, existing subsection 60A(2) allows a member of the AFP to disclose prescribed information, including personal information, where that disclosure is reasonably necessary in the course of providing police services for one of the functions set out in section 8 of the Act. Such a disclosure would not need to be authorised by the Commissioner.

Proposed Item 8

Proposed Item 8 inserts a definition of personal information in existing subsection 60A(3) for the purposes of section 60A. Personal information has the same meaning as in the Privacy Act, that is, 'information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion'. This will ensure consistency across Commonwealth legislation.

Proposed Item 9

Proposed Item 9 inserts a note at the end of existing subsection 60A(3) which refers to the application of Privacy Act provisions about the use and disclosure of information under the AFP Act.

Schedule 5 - Mutual Assistance in Business Regulation

Mutual Assistance in Business Regulation Act 1992

The Mutual Assistance in Business Regulation Act 1992 sets out a scheme by which Commonwealth regulators can assist foreign regulators in their administration or enforcement of foreign business law. This is done by obtaining information, documents and evidence, and transmitting that material to the foreign regulator.

Consideration of foreign requests occurs in two stages. First, the Commonwealth regulator determines whether it refuses the request or accepts the foreign regulator's request, or accepts the request subject to conditions. The Commonwealth regulator must inform the Attorney-General of its decision to enable a second-stage consideration of rendering assistance by the Attorney-General.

Proposed items 1 to 6 substitutes references in the Act to "the Attorney-General" with "Minister". This is to allow the second-stage consideration to be undertaken by any Minister with portfolio responsibility for business regulation.

Proposed Item 1

Under this amendment, Commonwealth regulators are to inform the Minister whether they do not oppose the foreign request, do not oppose the foreign request subject to conditions, or refuse the request.

Proposed Item 2

This amendment allows the Minister to authorise action in compliance with the request or to refuse the request.

Proposed Item 3

This amendment sets out the matters the Minister must take into account in considering whether the foreign request is not opposed, is not opposed subject to conditions, or is rejected. Proposed item 3 also sets out the matters the Minister must take into account in imposing conditions on compliance with the request, requiring undertakings of foreign regulators, or omitting or varying any conditions or undertaking.

Proposed Items 4 and 5

These are consequential amendments to reflect the transfer of responsibility for the second-stage consideration of foreign requests to the Minister.

Proposed Item 6

This amendment allows the Minister to delegate the Minister's powers under the Act.

Schedule 6 - Reports of Financial Transactions

Financial Transactions Reports Act 1988

This proposed item inserts an example after subsection 20A(1) of the Financial Transaction Reports Act 1988 which is intended to clarify the effect of subsection 20A(1) of the Act especially for the benefit of solicitors administering deceased estates.

Schedule 7 - Defence (Transitional Provisions) Act 1950

Defence (Transitional Provisions) Act 1950

Proposed Item 1

This amendment repeals the Defence (Transitional Provisions) Act 1950.

The Defence (Transitional Provisions) Act amended the Defence Transitional Provisions Act 1946-1949 (the earlier Act). The earlier Act provided that certain Regulations, orders and other instruments were to be in force until 31 December 1950 for the purposes of bringing about a gradual and orderly return from war conditions to conditions of peace.

The Defence (Transitional Provisions) Act had the effect of extending the operation of those Regulations, orders and other instruments until 1951. Those instruments are no longer in force and have not been operative for over fifty years.

Proposed Item 1 repeals the Defence (Transitional Provisions) Act because it is no longer necessary to maintain it on the statute books.

Schedule 8 - Customs Act detention

Proposed Item 1 proposes to replace subparagraph 219ZJC(1)(c)(ii) of the Customs Act to ensure that a person who is subject to other bail conditions which in effect prevent the person from leaving Australia may be detained. Such conditions may include that the person not approach a point of international departure, that he or she surrender his or her passport or that the person not leave a State or Territory. Currently, there is a risk that a person may only be able to be detained if the person's bail was subject to the specific condition that the person not leave Australia.

Proposed Item 1 would ensure that a person subject to any bail condition (however expressed) that, if complied with, prevents the person from leaving Australia would be able to be detained under subsection 219ZJC(1) if they were in a designated place and an officer had reasonable grounds to suspect that the person intends to leave the designated place.

Schedule 9 - Freedom of Information Act 1982

Part 1-Exemption of certain AUSTRAC documents

Proposed Item 1

Proposed Item 1 ensures that the Australian Transaction Reports and Analysis Centre (AUSTRAC) is exempt from the operation of the Freedom of Information Act 1982 (FOI Act) in relation to documents concerning information communicated to it under section 16 of the Financial Transaction Reports Act 1988 (FTR Act).

Under section 16 of the FTR Act, information is communicated to the Director of AUSTRAC by a "cash dealer". The term "cash dealer" is a defined term in the FTR Act and includes financial institutions, insurance companies, securities dealers, casinos, bookmakers and other authorised deposit-taking institutions. Cash dealers are required to report a range of financial transactions including suspicious transactions, transactions relevant to the investigation or prosecution of Commonwealth offences and transactions which they suspect are related to terrorist activity.

The information provided in suspicious transaction reports is crucial to the effectiveness of Australia's anti-money laundering program. AUSTRAC, and its law enforcement, revenue, national security and social justice partner agencies are reliant on reports of suspicious transactions as a strong source of intelligence. It is essential that the reports be fully protected and that cash dealers feel confident to report a transaction without fear of retribution from a customer (which may result from disclosure of a report).

The amendment made by Proposed item 1 is consistent with the policy intention of two previous amendments to the FTR Act concerning reports of suspicious transactions. Those amendments prohibited the disclosure of the existence of a report to a third party (other than a court) and made the reports inadmissible in evidence in legal proceedings (other than a prosecution for an offence against subsections 29(1) or 30(1) of the FTR Act).

Proposed Item 2

Proposed Item 2 ensures that the Australian Transaction Reports and Analysis Centre is exempt from the operation of the FOI Act in relation to documents concerning information communicated to it under section 16 of the FTR Act, regardless of whether such a document became a "document of an agency" before, on or after the commencement of Proposed item 1. In particular, it ensures that a relevant document that became a "document of an agency" before the commencement of Proposed item 1 is exempt.

Part 2-Technical corrections

Proposed Item 3

Proposed Item 3 removes unnecessary quotation marks in the proposed item dealing with the Australian Trade Commission (ATC) in Division 1 of Part II of Schedule 2 to the FOI Act. Proposed item 3 is solely a technical amendment and makes no other amendment to the existing proposed item dealing with the ATC.

Proposed Item 4

Proposed Item 4 removes unnecessary quotation marks in the proposed item dealing with the National Health and Medical Research Council (NHMRC) in Division 1 of Part II of Schedule 2 to the FOI Act. Proposed item 4 is solely a technical amendment and makes no other amendment to the existing proposed item dealing with the NHMRC.