Commonwealth Drug Offences

Contributed by Shannon Ramsey, Legal Aid ACT and current to March 2022

In addition to the ACT laws that prescribe a number of offences there are also Commonwealth laws that create offences in relation to serious drug offences that prohibit the possession, manufacture, cultivation, trafficking, and importation/exportation of drugs.

The Commonwealth offences overlap with ACT laws which also prohibit the sale, cultivation, possession and manufacture of illicit drugs.

The main purpose of Commonwealth laws in relation to drug offences is to operate alongside Territory laws but are to be principally targeted at organised illicit drug traders and commercially motivated drug crime with an international flavour to the offending.

What is a drug?

A serious drug is divided into two categories and is referred to as either a “controlled drug or plant” or a “border controlled drug or plant” depending on the offence. Border controlled drugs/plants are those prohibited under importation/exportation offences while controlled drugs/plants are substances that do not have a connection to importation/exportation offences.

Serious drug offences apply to a long list of drugs which are set out in the Criminal Code Regulations 2019 (Cth). The types of drugs to which the offences apply will differ between controlled or border controlled substances. However, both categories of substances include widely known drugs such as heroin, cocaine, methylamphetamine (‘ice’), methylenedioxymethylamphetamine (‘MDMA’) and cannabis. The lists are extensive and also include precursors to illicit substances such as pseudoephedrine.

For each type of serious drug offence under Commonwealth law there are three levels of quantity:

The largest quantity is a commercial quantity, followed by marketable and then trafficable quantity. The penalty associated with an offence will depend on the quantity of the drug involved. Alleged offenders will be dealt with either in the ACT Magistrates Court or the ACT Supreme Court. Upon an offender being found guilty or pleading guilty the court will impose an appropriate sentence. Commonwealth law provides a maximum penalty that can be imposed in relation to each offence.

The quantities between controlled substances and border controlled substances differ.

Distribution Offences

Under Commonwealth law there are a number of offences criminalising the distribution of serious drugs. These are:

1. Trafficking in controlled drugs;
2. Selling controlled plants.

Trafficking

See Division 302 of Criminal Code Act 1995 (Cth).

The definition of trafficking under Commonwealth law is defined in section 302.1 of the Criminal Code Act 1995 (Cth). A person traffics in a controlled drug if they:

1. Sell it;
2. Prepare it with the intention to sell it or believing another person intends to sell it, including packaging or separating into discrete units;
3. Transports it with the intention of selling it or believing another person intends to sell it;
4. Guards or conceals it with the intention of selling it or assisting another person to sell it;
5. Possess it with the intention of selling it.

Where it is proved that an accused person has prepared, transported, guarded or concealed, or possessed a trafficable quantity of a substance, Commonwealth law presumes that the person intended to sell the drug or held a belief concerning the sale of the substance. Where this presumption applies the accused person bears the burden of proving on the balance of probabilities that they did not intend to sell the substance or hold a belief concerning the sale of the substance.

There are three offences of trafficking and the penalties for these offences depend on the quantity of the substance involved.

Selling

See Division 304 of Criminal Code Act 1995 (Cth).

A person commits an offence under Commonwealth law if they sell controlled plants. Sell includes to barter or exchange and agreeing to sell (s 300.2 Criminal Code Act 1995 (Cth)).

Three offences of selling controlled plants and the penalties for these offences depend on the quantity of the substance involved.

Production Offences

There are two categories of offences that criminalise the production of serious drugs. These categories are manufacturing drugs and cultivating controlled plants, such as cannabis.

Manufacture

See Divisions 305 and 308 of the Criminal Code Act 1995.

Commonwealth law manufacturing a controlled drug for a commercial purpose is an offence.

Manufacturing a controlled drug means any process that produces an illegal drug and includes extracting or refining, and the process of transforming a substance into a different substance. It does not include cultivation (see below). A person commits an offence of manufacturing a controlled drug if they personally engage in the manufacture of the drug, if they play any role in the direction or control of its manufacture or if they finance the manufacturing process.

The manufacture of the drug must be for a commercial purpose, which includes manufacturing the drug with the intention to sell any of it or believing that another person intends to sell any of it.

It is an offence under Commonwealth law to possess a substance, equipment or instructions for the commercial manufacture of controlled drugs.

There are elements of aggravation which result in higher penalties (s 310.4). An offence is aggravated if it involves exposing a person under 14 years of age to the manufactured drug.

Cultivation

See Division 303 of Criminal Code Act 1995 (Cth).

Commonwealth law creates offences in relation to commercial cultivation of controlled plants. A controlled plant is cannabis.

The cultivation of a controlled plant becomes commercial where the cultivation is carried out with the intention of selling the plant, anything made from the plant including seeds and substances separated from the plant for example resin, or with the belief that another person will do so.

Cultivation is defined in s 303.1 of Criminal Code Act 1995 and includes:

• Planting;
• Transplanting;
• Nurturing, tending or growing;
• Guarding or concealing;
• Harvesting, picking or gathering resin from a plant.

A person may commit the offence of cultivation of a plant by personally participating in the cultivation, by the exercise of control or direction over the cultivation of the plant or by providing finance for its cultivation.

There are three offences and the penalties for these offences depend on the quantity of the substance involved.

Importing and Exporting

See Division 307 of the Criminal Code Act 1995 (Cth).

Commonwealth law creates offences prohibiting the importation and exportation of border controlled drugs.

Importation and exportation are defined in the Criminal Code Act 1995 (Cth). Importation includes bringing a substance into Australia and dealing with the substance in connection with its importation. This means that any action that leads to the border controlled substance entering Australia constitutes importation. Exportation includes taking the drugs outside Australia, meaning that any action by an individual that facilitates a substance being transported from Australia constitutes exportation. Examples include packing a drug or plant in your luggage when travelling to or from Australia, purchasing a drug or plant online and having it mailed to you, or preparing a drug or plant to be mailed overseas. It is commonly held that importation and exportation is a process rather than one single isolated act at the moment of import and includes acts that are done to bring the importation or exportation to fruition (R v Courtney-Smith (No2) 1990 48 A Crim R; Forbes v Traders Finance Corp Ltd [1971] HCA 60; (1970) 126 CLR 429; R v Bull [1974] HCA 23; (1974) 131 CLR 203; Re the Pong Su (Ruling No 10) [2005] VSC 10; R v Lam (1990) 46 A Crim R 402; R v Leff (1996) 86 A Crim R 212; Brar v R [2016] VSCA 281).

Serious drug importation and exportation offending often involves more than one person. Prosecutions will often rely upon the extension of criminal liability provisions to ensure that all those involved faces the consequences of their actions. These include conspiracy, joint commission and accessorial liability.

There are three categories of import/export offences:

1. Import/export border controlled drugs/plants;
2. Possess unlawfully imported drugs/plants;
3. Import/export border controlled precursors.

Import/export border controlled substances

A person commits an offence if they import or export a border controlled drug or plant. A person may also be found guilty of an offence if they are involved in any way in importing or exporting a border controlled drug or plant.

In relation to the offences of importing and exporting marketable quantities or simply importing and exporting border controlled drugs or plants there is a defence open to the accused person if they can prove on the balance of probabilities that they did not intend to sell or did not believe that someone else intended to sell any of the substance. Therefore, if an accused person can prove a lack of commercial intent they are not guilty of the offence.

However, a person commits an offence if they import or export border controlled drugs or plants for a non-commercial purpose for example personal use or for another’s personal use.

Possession of unlawfully imported substances

A person commits an offence if they possess a border controlled drug or plant that has been unlawfully imported or reasonably suspected of being unlawfully imported. If a person can prove on the balance of probabilities that they did not know that the substance was not unlawfully imported. There is a further defence in relation to possessing a marketable quantity of a border controlled drug or plant if an accused person can prove on the balance of probabilities that they did not intend to sell or did not believe that someone else intended to sell any of the substance.

Import/export border controlled precursors

A person commits an offence if they import or export border controlled precursors. A person may also be found guilty of an offence if they are involved in any way in importing or exporting the precursor.

A list of specific offences relating to the importation and exportation of border controlled drugs and the maximum penalties applicable to each offence is outlined below.

Possession of drugs

See Division 308 of the Criminal Code Act 1995 (Cth).

Commonwealth law creates offences that prohibit the possession of a controlled drug or controlled precursors.

A person possesses a drug or other substance if the person has actual custody or is in physical control of the drug whether or not the thing is in their actual custody, or they have them stored in a place where they have the ability, the right or the power to gain custody. A drug may be possessed by a single person or jointly between multiple people.

If a person is charged with an offence of possessing a controlled drug under Commonwealth laws they may be dealt with by the ACT system which may involve them being diverted from the criminal justice system and benefit from educational, treatment and support programs that are available for minor ACT drug offences.

Drug Related Offences: Police Search Powers

In the ACT, police have the power to stop and search people in relation to drug offences. These powers are governed by the ACT Crimes Act 1900 and the Drugs of Dependence Act 1989.

In relation to police powers under the ACT Crimes Act 1900, see Police Stop and Search Powers.

Police have the power to search people and places in relation to drug offences under the Drugs of Dependence Act. The powers relate to drug related offences from both the Drugs of Dependence Act and Chapter 6 of the Criminal Code 2002 (ACT).

Search of a Person – s 184(1) Drugs Of Dependence Act

A police officer may search a person, their clothing or property in their control and seize any item found. They can only do this if the officer suspects on reasonable grounds that the item found during the search is connected with a drug related offence.

The search of a person and subsequent seizure of any items found in relation to a drug related offence can only be conducted if:

(a) Consent is obtained from the person for the search; or

(b) A person has been arrested for a drug related offence and the officer suspects on reasonable grounds that it is necessary to search the person to see if there is anything connected with the offence in their possession or to prevent the loss, concealment or destruction of evidence; or

(c) A warrant has been issued; or

(d) There are circumstances of seriousness and urgency and the officer believes on reasonable grounds it is necessary to prevent the loss, concealment or destruction of evidence; or

(e) An order has been made by a court; or

(f) Another law in force in the ACT permits the officer to conduct the search, for example the ACT Crimes Act 1900.

When a person is searched under the DODA they must be searched by a police officer of the same sex. If a suspect identifies as transgender they may determine whether they are searched by a male or female officer. When conducting a search on a person a police officer can remove or require a person to remove clothing they may be wearing.

Search of a Place – s 184(2) Drugs of Dependence Act

A police officer may enter any place for the purpose of searching and seizure of items that the officer suspects on reasonable grounds to be connected with a drug related offence. A place includes vacant land, premises, a vehicle, a vessel or an aircraft.

The search of a place and subsequent seizure of any items found in relation to a drug related offence can only be conducted if:-

(a) Consent is obtained from the occupier of the place for entry; or

(b) A warrant has been issued; or

(c) There are circumstances of seriousness and urgency and the officer believes on reasonable grounds it is necessary to prevent the loss, concealment or destruction of evidence; or

(d) An order has been made by the court; or

(e) Another law in force in the ACT permits the officer to conduct the search, for example the ACT Crimes Act 1900.

Police powers for search and seizure under Commonwealth law

The Commonwealth Crimes Act 1914 empowers police to conduct searches in relation to the investigation of Commonwealth offences after a person has been placed under arrest. The Commonwealth Crimes Act enables police to:

• conduct a frisk search or ordinary search of a person for a relevant thing; and
• seize any thing found.

These search powers are effectively identical to those prescribed in the Crimes Act 1900 (ACT), summarised in Police Stop and Search Powers.

The Commonwealth Crimes Act additionally empowers police to search a conveyance (which means an aircraft, vehicle or vessel), and any container within the conveyance without first obtaining a search warrant, provided police believe on reasonable grounds:

• that a thing relevant to a Commonwealth offence punishable by more than 2 years imprisonment is in the conveyance;
• that it is necessary to conduct a search to prevent the relevant thing being concealed, lost or destroyed; and
• it is necessary to conduct the search immediately because the circumstances are serious and urgent.