Last updated 1 September 2021
Divisions 300 to 313 of the Criminal Code Act 1995 (Cth) (Cth Criminal Code) deal with serious drug offences and offences relating to controlled drugs, plants and precursors.
‘Controlled’ drugs, plants and precursors are defined in ss 301.1 to 301.3 of the Cth Criminal Code and identified in regs 11 to 13 and sch 1 of the Criminal Code Regulations 2019 (Cth) (Cth Regulations). The definition of ‘controlled drug’ includes drug analogues, which are synthetic drugs that mimic the effects of controlled drugs. The Minister for Home Affairs is responsible for the Australian Federal Police and may also determine a substance to be a controlled drug, plant or precursor by way of an emergency declaration.
Under the Cth Criminal Code, penalties for drug offences are affected by the type and quantity of the drug involved, particularly whether it is a commercial quantity, a marketable quantity or a traffickable quantity. The quantities for each category and each type of drug are set out in sch 1 of the Cth Regulations. Derivative forms of drugs are also addressed in the legislation.
Like the Drugs Misuse Act 1986 (Qld), the Cth Criminal Code contains evidentiary presumptions relating to some offence elements. In practical terms, this means that an accused person may bear the burden of proving, on the balance of probabilities, that the situation or their intention was otherwise than as presumed by the Cth Criminal Code.
Trafficking in controlled drugs
Division 302 of the Cth Criminal Code sets out the trafficking offences. Trafficking is defined broadly to include selling, preparing, transporting, guarding or concealing and possessing a substance with the intent to sell. Higher penalties attach to commercial or marketable quantities of trafficked substances. The maximum penalties are:
- for trafficking in a commercial quantity of controlled drug—up to life imprisonment and/or a fine of 7500 penalty units (currently $1 665 000)
- for trafficking in a marketable quantity of a controlled drug—up to 25 years imprisonment and/or a fine of 500 penalty units (currently $1 110 000)
- for trafficking in controlled drugs in amounts below the commercial and marketable quantities—up to 10 years imprisonment and/or a fine of 2000 penalty units (currently $444 000).
Commercial cultivation and selling of controlled plants
The only controlled plant presently listed is cannabis. Division 303 of the Cth Criminal Code contains offences relating to the commercial cultivation of controlled plants. Cultivating a plant includes exercising control or direction over a plant, or providing finance for cultivation. The term ‘cultivate’ is broadly defined and includes:
- planting a seed or cutting
- transplanting a plant
- nurturing or growing a plant
- guarding or concealing a plant including against interference or discovery by humans or natural predators
- harvesting or picking a plant.
Division 304 of the Cth Criminal Code contains offences of selling controlled plants. Again, penalties depend on the quantity of cannabis involved.
Commercial manufacture of controlled drugs
The offences relating to the commercial manufacture of controlled drugs in commercial, marketable and traffickable quantities are set out in div 305 of the Cth Criminal Code.
Pre-trafficking in controlled precursors
Precursors are generally the raw ingredient chemicals (e.g. ephedrine, pseudoephedrine and lysergic acid) used to make certain controlled drugs. Pre-trafficking in these substances is an offence (div 306 Cth Criminal Code). Pre-trafficking includes manufacturing the relevant substance with the intention of selling any of it to another person, believing that the person intends to use any of the substance to manufacture a controlled drug (s 306.1 Cth Criminal Code). The substances and amounts that are controlled precursor chemicals are defined in reg 13 of the Cth Regulations. New or additional substances can be added to this list quickly by interim regulations and emergency declarations.
Again, there are specific provisions about liability and evidentiary presumptions. For example, a person is deemed to be intending to act unlawfully if they sell, manufacture or possess a substance without the appropriate legal authorisation. These presumptions shift the burden of proof to the accused, who must prove on the balance of probabilities that their intention was otherwise.
Import and export offences of controlled substances
The offence for the importing, exporting and possessions of border-controlled drugs, plants and precursors are contained in div 307 of the Cth Criminal Code.
The terms ‘import’ and ‘export’ include ‘take from’ or ‘bring into’ Australia. Again, the quantity of the substance involved can affect penalty. Importing or exporting a border-controlled drug or plant can attract the same penalties as for trafficking in controlled drugs.
Possession of controlled substances offences
Possession of a thing involves two elements:
- actual physical control of the thing
- knowledge of or intent to control the thing.
In prosecutions for possession of particular goods, the onus usually rests on the prosecution to prove beyond a reasonable doubt that, at the time an accused person had physical custody or control of the particular thing, they had knowledge of the existence and presence of the thing (see He Kaw Teh v The Queen (1985) 157 CLR 523). The offences for possessing controlled drugs, controlled precursors, plant material, equipment or instructions for the commercial cultivation of controlled plants and substances, equipment or instructions for the commercial manufacture of controlled drugs are contained in div 308 of the Cth Criminal Code.
An accused person can also be guilty if they are merely reckless rather than having direct knowledge that a substance in their possession is a controlled drug (ss 308.2(2) Cth Criminal Code).
For some minor drug possession offences, relevant offenders can still be diverted from the criminal justice system into state-based diversionary programs run under state laws.
Drug offences involving children
These offences generally involve supplying children with drugs or procuring them for drug offences. All of the offences attract severe penalties of imprisonment from 15 years to life. A child is defined as an individual under 18 years of age.
Division 309 of the Cth Criminal Code deals with offences where children are victims, not offenders.
Division 310 of the Cth Criminal Code contains offences for endangering or harming a child under 14 years as a result of exposing them to the unlawful manufacture of a controlled drug or precursor. These offences can be committed by a person not involved in the unlawful manufacture, but who exposes a child to harm. Exposure includes exposing a child to the risk of catching any disease that may give rise to the danger of serious harm.
Other provisions of the Commonwealth Criminal Code
The Cth Criminal Code also includes provisions for:
- enabling a person to be prosecuted for more serious drug offences by aggregating dealings that involve smaller quantities of controlled drugs, plants or precursors (div 311)
- defences relating to conduct justified or excused by the laws of a state or territory, or another Commonwealth law (div 313)
- allowing for an alternative verdict if the accused is found not guilty of an alleged offence, but the trier of fact is satisfied that the defendant is guilty of another offence (e.g. importing only a marketable rather than a commercial quantity of a drug) (s 313.3).
The Cth Criminal Code has extraterritorial effect. Its drug offences apply beyond Australia, to all Australian citizens, corporations and residents anywhere in the world, unless a defence under foreign law also applies.