Chapter 20 - Public Policy In Other Countries - Australia

Legislative framework

Under Australia's federal structure, criminal law– and responsibility for enforcing drug laws–is primarily the responsibility of state governments. Australia has ratified the three major international treaties on illicit drugs, and the obligations under those treaties are effected in three pieces of federal legislation: the Narcotic Drugs Act 1967, the Psychotropic Substances Act 1976 and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990.

The drug laws in Australian jurisdictions

The law relating to illicit drugs is made and enforced in Australia on a state and territorial level. It varies markedly between jurisdictions, but its structure is broadly similar. The key legislation from each jurisdiction is as follows:

Each act creates, in one form or another, the basic offences of possession, use, cultivation, production and trafficking, supplying and selling. The acts also contain lengthy schedules, derived from various international conventions, listing which drugs are prohibited, and defining various amounts, such as "traffickable" and "commercial" quantities. These quantities are used to determine maximum penalties for sentencing purposes.

The typical maximum penalties for the more serious offences, such as trafficking in "commercial quantities," are in the range of 25 years to life, although most jurisdictions apart from Queensland set lower maximums for offences involving cannabis. Most acts provide for persons who have been found guilty of simple possession and/or use offences to receive a term of imprisonment, but it is very uncommon now for this penalty to be imposed. Particularly for the less serious offences, there is often a very substantial gap in sentencing between the "law on the books" and the "law in practice." For example, in Queensland, where the offence of possession carries a notional maximum penalty of 15 years imprisonment and a maximum fine of AUD $300,000, the standard penalty applied in the Magistrates Court – where the overwhelming majority of possession charges are heard – is a fine of a few hundred dollars, often with no conviction being recorded.[2][188]

Since 1987 in South Australia, 1992 in the Australian Capital Territory, and 1996 in the Northern Territory, people detected committing "minor" cannabis offences have been able to avoid a court appearance altogether by paying a relatively modest "on-the-spot" fine. While cannabis possession is still prohibited, it is sanctioned by a civil, not a criminal, penalty. In addition, Victorian legislation provides for the imposition of pre-conviction bonds for first offenders charged with minor drug offences (Drugs Poisons and Controlled Substances Act 1981, s. 76). First offenders are given a bond, and no conviction is recorded if the bond conditions are complied with. But in Victoria, New South Wales, Tasmania, Queensland, and Western Australia all cannabis possession, use and supply is criminally prohibited with criminal penalties being imposed. In addition, in all jurisdictions the penalties imposed for commercial dealing are still very substantial, especially for offences at the upper end of the scale.

In the civil prohibitionist jurisdictions, the offences attracting a civil infringement notice include possession of small amounts of cannabis plant (up to 100g in South Australia, 25g in the Australian Capital Territory, and 50g in the Northern Territory) and cultivation of cannabis plants (up to three in South Australia, five in the Australian Capital Territory, and two in the Northern Territory). Failure to pay the fines may result in court appearances and subsequent conviction.

The criminal prohibitionist jurisdictions have also recently adopted "diversionary" cautioning procedures which allow first or second time cannabis possession/use offenders to receive a caution or education/counselling session instead of the normal court appearance.

"Drug Courts" have been established in four Australian jurisdictions – Queensland, New South Wales, South Australia, and Victoria. In Queensland and New South Wales these "diversionary" courts have been established by legislation while in South Australia and Victoria they operate on a less formalized basis.[3][189]

A notable feature of Australian drug laws is the use of provisions which contravene the long-established principle that the burden of proof in criminal cases should be on the prosecution to prove each element of the offence beyond reasonable doubt. For example, the Drugs Misuse Act 1986 (Queensland) contains a "deeming provision" for the offence of possession. This means that, if a prohibited drug is found on someone’s premises, this will be regarded as conclusive evidence that the drug was in the possession of the occupier, unless he or she can persuade the court that they "neither knew nor had reason to suspect that the drug was in or on that place" (s. 57(c)). Another example is s. 235 of the Commonwealth Customs Act 1901. This provision requires a person who has more than a certain quantity of drugs in his or her possession to prove, on the balance of probabilities, that he or she did not intend to engage in commercial dealings in relation to those drugs. If the person cannot prove this, they will be sentenced on the basis that they had an intention to traffic.

Another aspect of Australian drug laws to note is the wide range of powers which are available to police and other law enforcement bodies to detect and investigate drug offences. Under the Queensland Drugs Misuse Act 1986, for example, police have had the power in relation to any quantity of any illegal drug to: stop, search, seize and remove motor vehicles; detain and search persons; order internal body searches; and enter and search premises with or without a warrant (s. 18). In addition, for offences such as drug trafficking, Queensland police are empowered to apply to a court to have listening devices installed on private premises.

For law enforcement bodies operating at the federal level, and in most states other than Queensland, telecommunications interception powers are also available for the investigation of serious drug offences under the Commonwealth Telecommunications (Interception) Act 1979.

Over the last decade, most jurisdictions have also passed confiscation of profits legislation which can be used to attack the assets of drug traffickers and producers. In most cases this action can be taken only after the person has been convicted, but in New South Wales a confiscation order can be made without requiring a conviction, where the Supreme Court is satisfied that "it is more probable than not" that the person has engaged in drug-related activities (Criminal Assets Recovery Act 1990).