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Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Bill 1990



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House: House of Representatives

Portfolio: Attorney-General

Purpose

To introduce a number of offences relating to acts committed outside Australia or on an Australian ship or aircraft. This will help implement an international convention against the illicit traffic in narcotic drugs and psychotropic substances.

Background

The major international drug treaties provide control for a wide variety of natural and synthetic substances. Under existing international treaties, no specific definitions of either `narcotic drug' or `psychotropic substance' have been provided. However, narcotic drugs are generally defined as those producing a sleep-like state, while psychotropic drugs are those considered to act on the mind, altering mood or behaviour. Narcotic drugs include the products of the opium poppy, the coca bush and the cannabis plant, which generally come from natural sources; while psychotropic substances include amphetamines, barbiturates, sedatives and tranquillisers, which are almost always synthetic.

International co-operation for drug control began in 1912 with the International Opium Convention. This and subsequent conventions form the legal basis of the present international drug control system which attempts to control drug production and shipment, halt the flow of illicit drugs and reduce drug abuse.

Australia is a signatory to the Single Convention on Narcotic Drugs 1961, as amended by the Protocol amending the Single Convention 1972 and the Convention on Psychotropic Substances 1971. Basically, the Single Convention on Narcotic Drugs 1961 codified all existing multilateral treaty laws. The cultivation of plants grown as raw material for natural narcotic drugs was placed under international control. Existing international controls on production of opium and its derivatives were continued and coca bush and cannabis were also placed under international control, obliging Governments to limit production of those drugs, subject to certain exceptions such as production for medical and scientific uses. The Convention also introduced international obligations relating to medical treatment and the rehabilitation of addicts and requires, for example prior authorisation for the cultivation, production, manufacture, conversion and compounding of preparations, trade, distribution and the import/export of drugs.

The Convention provides a number os exceptions to the general obligations of a party to the Convention to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution, use and possession of drugs. For example, under Articles 23 and 28 of the Convention, it is basically open to a signatory of the Convention to allow the cultivation of the opium poppy or cannabis plant provided it is regulated by a government agency and that agency has the exclusive right to the possession and wholesale distribution of the crop. Similarly, under Article 29, it is basically open to a signatory of the Convention to allow the manufacture of drugs, including opium or cannabis, by one or more state enterprises or by a private enterprise under licence. The Narcotics Drugs Act 1967 gives effect to Australia's treaty obligations under the Convention by regulating the manufacture of drugs.

The Convention on Psychotropic Substances 1971, extended international control of drugs to a broad range of synthetic behaviour altering and mood altering substances, including hallucinogens such as LSD and mescaline, stimulants such as amphetamines, and sedative hypnotics such as barbiturates. The Psychotropic Substances Act 1976 gives effect to Australia's obligations under the Convention by regulation the movement of psychotropic substances.

The increasing difficulties encountered by law enforcement agencies in coping with widespread illicit drug trafficking led the United Nations General Assembly in 1984 to call for a new international instrument to address the various aspects of the problem of the international traffic in illicit drugs not envisaged in existing international agreements. In 1985, the UN Commission on Narcotic Drugs began work on the draft Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The Convention was adopted in December 1988, and Australia became a signatory in February 1989.

The Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, reinforces and supplements the Single Convention on Narcotic Drugs 1961 and the Convention on Psychotropic Substances 1971, it does not remove, substitute or limit existing treaty provisions. For example, while Article 14 of the Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 provides that it is a duty of parties to the Convention to prevent the illicit cultivation of narcotic drugs, this in no way detracts from any existing rights under the Single Convention on Narcotic Drugs 1961 (see above). Among the major innovations contained in the Convention are provisions to facilitate the identification, tracing, freezing, seizure, and forfeiture of illegal drug profits (Article 5). The Convention also obliges signatory countries to extradite drug traffickers (Article 7). Other provisions relate to the prevention of drug smuggling through exchange of information on traffickers (Article 9), intercepting illegal shipments of drugs (Article 17), and monitoring the diversion of chemicals, solvents and precursors used in illicit processing or manufacture of drugs and psychotropic substances (Article 12). Other provisions seek to prevent illicit traffic through the mail (Article 19), free trade zones and ports (Article 18 and 19).

Main Provisions

`Commercial quantity' and `trafficable quantity' are defined in clause 3 to be those amounts of narcotic drugs and psychotropic substances listed in Columns 2 and 3 of Schedule 2 and Part 1 of Schedule 3 of the Bill (e.g. for cannabis, the commercial quantity is 100 kilograms, while the minimum trafficable quantity is 100 grams).

`Narcotic drug' is defined in clause 3 to be a substance listed in Schedule 2 of the Bill, while a `psychotropic substance' is defined by reference to Schedule 3 of the Bill.

The Bill is not intended to affect the operation of other laws, except to prevent a person being convicted under this Bill for an act in relation to which a person has already been convicted under the law of another country (clause 5).

Clause 6 contains the definition of `dealing in drugs'. The term is defined to include the cultivation of opium poppy, coca bush or cannabis plant for the purpose of producing narcotic drugs; the manufacture, extraction or preparation of a narcotic drug or psychotropic substance; and inciting to, urging or encouraging, any conduct that is a dealing in drugs.

Clause 9 provides that it will be an offence for a person to possess in Australia a substance listed in Table I or II in the Annex to the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, or any equipment or materials, knowing that they are being used or are to be used for certain dealing in drugs, including the manufacture, extraction or preparation of a narcotic drug or psychotropic substance in contravention of a Commonwealth, State, Territory, or foreign law. The maximum penalty for a breach of this provision will be imprisonment for 5 years if substance, equipment or materials are to be used in, or for, the manufacture, extraction or preparation of a psychotropic substance listed in Part 2 of Schedule 3 of the Bill; or in any other case imprisonment for 10 years.

Clause 10 provides that it will be an offence for a person to engage in a dealing in drugs on board an Australian aircraft in flight, whether inside or outside Australia, where the act would be an offence against a State or Territory law had it been committed there. Clause 10 will not apply to acts done on intra-State and intra-Territory flights.

Clause 11 provides that it will be an offence for a person to engage in a dealing in drugs on board an Australian ship at sea where the act, had it been committed in a State or Territory, would be an offence against a Commonwealth law.

Clause 12 provides that it will be an offence for a person to engage in a dealing in drugs, outside Australia where the act is an offence against a foreign law and would be an offence against a State or Territory law, had it been done there. A person is to be charged with an offence against this clause only if they are in Australia and, where they are not an Australian citizen; no steps have been taken by the foreign country in which the offence was committed, or where extradition proceedings in Australia have not resulted in the person being sent to that country.

Clause 13 provides that it will be an offence for a person to engage in a dealing in drugs outside Australia with a view to carrying out in Australia; or on board an Australian aircraft in flight outside Australia; or on board an Australian ship at sea; a dealing in drugs that is an offence against a Commonwealth, State, or Territory law.

Clause 14 provides that it will be an offence for a person, outside Australia to conspire or attempt, aid, abet, counsel or procure, or be in any way directly or indirectly knowingly party to the carrying out in a State or Territory of a dealing in drugs that is an offence against the State or Territory's laws. The penalty for a breach of this provision will be the same as would apply if a person was convicted of conspiring or attempting to carry out in a State or Territory a dealing in those drugs.

Clause 15 provides penalties for offences against clauses 10-13. The penalties vary according to the particular type of dealing in drugs; the quantity of drug involved; and the nature of the drug involved. For example, where a person has committed an offence of cultivating cannabis, the maximum penalty will be 2 years imprisonment if not more than 5 plants were cultivated; 5 years imprisonment for cultivating between 6 and 20 cannabis plants; 10 years imprisonment for cultivating between 21 and 1000 cannabis plants; and life imprisonment for cultivating more than 1000 cannabis plants. Schedule 2 and Part 1 of Schedule 3 of the Bill lists the minimum weights that will constitute trafficable and commercial quantities of listed narcotic drugs and psychotropic substances.

Although a person may be arrested, charged and held in custody or on bail for an offence against the Bill, they may not be sent to trial without the written consent of the Attorney-General (clause 16).

Clause 20 provides that the Attorney-General may certify that the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances entered into force for Australia on a specified date and remains in force.

Schedule 1 of the Bill contains the text of the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Bills Digest Service

Parliamentary Research Service

For further information, if required, contact the Economics and Commerce Group on 06 2772460.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1990

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Published by the Department of the Parliamentary Library, 1990.