Extra-territorial offences

 

Extra-territorial drug offences include overseas drug offences committed by a person in Australia. These offences carry severe penalties including the possibility of a life sentence. The law provides for an assumption that a person importing or exporting a large quantity of drugs intends to sell those drugs.

UN Convention on illicit drugs

The Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) (“CTNDPS Act”) deals with trafficking narcotic drugs and psychotropic substances in accordance with the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (schedule 1 of the CTNDPS Act sets out the Convention in full). The CTNDPS Act came into effect on 14 February 1993.

Offences

The CTNDPS Act creates offences for:

possession of equipment, etc. (s 9);

dealing in drugs onboard an Australian aircraft (s 10);

dealing in drugs onboard an Australian ship (s 11);

dealing in drugs outside Australia (where the person is in Australia) (s 12);

dealing in drugs outside Australia with a view to the commission of an offence in Australia (s 13); and

conspiring, attempting, aiding, abetting, counselling, or procuring by conduct engaged in outside Australia to commit an offence in Australia (s 14).

Dealing in drugs

Subsection 6(1) of the CTNDPS Act states that:

For the purposes of this Act, each of the following is a dealing in drugs:

a the cultivation of an opium poppy, coca bush or cannabis plant for the purpose of producing narcotic drugs;

b the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained;

c the manufacture, extraction or preparation of a narcotic drug or psychotropic substance;

d the possession of a narcotic drug or psychotropic substance for the purpose of manufacture, extraction or preparation of another such drug or substance;

e the sale, supply, or possession with the intention of sale or supply, of a narcotic drug or psychotropic substance;

f the importation into Australia, exportation from Australia, or possession for the purpose of such importation or exportation, of a narcotic drug or psychotropic substance;

fa the manufacture, transport or distribution of any substance listed in table I or table II in the annex to the convention or of equipment or materials, with the knowledge that the substance, equipment or materials are to be used for a purpose set out in paragraph (a), (b) or (c);

fb organising, managing or financing a dealing in drugs referred to in paragraphs (a), (b), (c), (d), (e), (f) or (fa);

g the possession of any substance listed in table I or table II in the annex to the convention or of any equipment or materials, with the knowledge that the substance, equipment or materials are being used or are to be used for a purpose set out in paragraph (a), (b) or (c).

Subsection 6(2) states that:

For the purposes of this Act, each of the following is also a dealing in drugs:

a a conspiracy or attempt to engage in conduct that is, under subsection (1), a dealing in drugs;

b being a party to any dealing in drugs referred to in subsection (1);

ba aiding, abetting, counselling or procuring, or being by act or omission in any way directly or indirectly knowingly concerned in, or party to, any conduct that is, under subsection (1), a dealing in drugs;

c inciting to, urging or encouraging, any conduct that is, under subsection (1), a dealing in drugs.

Prosecution

Section 16(1) provides that a person may not be committed for trial under the CTNDPS Act without the written consent of the Commonwealth Attorney-General. This does not prevent a person from being charged, arrested or remanded in custody or on bail (s 16(2)).

Presumption of purpose

Section 17 of the CTNDPS Act provides for a presumption that possession, importation, exportation or intended importation or exportation, of a traffickable or commercial quantity, is for the purpose of sale or supply.

Once the prosecution has established that any of these offences has been committed, and that a commercial or traffickable quantity was involved, then the onus is on the accused to disprove the presumption.

Penalties

Under the CTNDPS Act, penalties vary according to the nature of the act engaged in (cultivation, separation of drug from plant, manufacture, etc.) and the quantity involved (s 15).

Distinction is made between commercial, traffickable and other quantities. The penalties for commercial quantities are more severe than those for traffickable quantities. In general, the CTNDPS Act provides for very severe penalties, including life imprisonment.