LAW AND JUSTICE LEGISLATION AMENDMENT (SERIOUS DRUG OFFENCES AND OTHER MEASURES) BILL 2005

i Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill

2005 No. , 2005

Contents

Short title.......................................................................................1

Commencement .............................................................................1

Schedule(s)....................................................................................3

Schedule 1--Serious drug offences

Part 1--Serious drug offences

Criminal Code Act 1995

Part 2--Consequential and transitional provisions

Crimes Act 1914

Customs Act 1901

Proceeds of Crime Act 2002

Surveillance Devices Act 2004

Telecommunications (Interception) Act 1979

Schedule 2--Involvement of children in armed conflict

Criminal Code Act 1995

Schedule 3--Proceeds of crime orders

Proceeds of Crime Act 2002

Schedule 4--Australian Federal Police Act 1979

Australian Federal Police Act 1979

Schedule 5--Mutual Assistance in Business Regulation Act

1992

101

Mutual Assistance in Business Regulation Act 1992

101

Schedule 6--Reports of Financial Transactions

102

Financial Transaction Reports Act 1988

102

Schedule 7--Defence (Transitional Provisions) Act 1950

103

Defence (Transitional Provisions) Act 1950

103

Schedule 8--Customs Act detention

104

Customs Act 1901

104

Schedule 9--Freedom of Information Act 1982

105

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 1

A Bill for an Act to amend various Acts relating to

law and justice, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Law and Justice Legislation

Amendment (Serious Drug Offences and Other Measures) Act

2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

The 28th day after the day on which this Act

receives the Royal Assent.

3. Schedule 2

The later of:

(a) the 28th day after the day on which this

Act receives the Royal Assent; and

(b) the day on which the Optional Protocol

to the Convention on the Rights of the

Child on the Involvement of Children in

Armed Conflict, done at New York on

25 May 2000, enters into force for

Australia.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

The Minister for Foreign Affairs must

announce by notice in the Gazette the day on

which the Optional Protocol enters into force

for Australia.

4. Schedules 3 to

The day on which this Act receives the

Royal Assent.

5. Schedule 9,

Part 1

The day on which this Act receives the

Royal Assent.

6. Schedule 9,

Part 2

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

Schedule 1 Serious drug offences

Part 1 Serious drug offences

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Schedule 1--Serious drug offences

Part 1--Serious drug offences

Criminal Code Act 1995

1 Before Part 9.4 of Chapter 9 of the Criminal Code

Insert:

Part 9.1--Serious drug offences

Division 300--Preliminary

300.1 Purpose

(1) The purpose of this Part is to create offences relating to drug

trafficking and to give effect to the United Nations Convention

against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances, done at Vienna on 20 December 1988.

Note:

The text of the Convention is set out in Australian Treaty Series 1993

No. 4. In 2005 this was available in the Australian Treaties Library of

the Department of Foreign Affairs and Trade, accessible on the

Internet through that Department's world-wide web site.

(2) Subsection (1) does not limit the legislative powers of the

Parliament in relation to this Part.

300.2 Definitions

In this Part:

aggravated offence has the meaning given by section 310.4.

border controlled drug means a substance, other than a growing

plant:

(a) listed or described as a border controlled drug in

section 314.4; or

(b) prescribed by regulations under paragraph 301.3(1)(a); or

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border controlled plant means a growing plant:

(a) listed or described as a border controlled plant in

section 314.5; or

(b) prescribed by regulations under paragraph 301.3(1)(b); or

border controlled precursor means a substance (including a

growing plant):

(a) listed or described as a border controlled precursor in

section 314.6; or

(b) prescribed by regulations under subsection 301.4(1); or

child means an individual who is under 18 years of age.

commercial quantity, in relation to a controlled drug, controlled

plant, controlled precursor, border controlled drug, border

controlled plant or border controlled precursor means a quantity

not less than the quantity specified as a commercial quantity of the

drug, plant or precursor in:

(a) Division 314; or

(b) regulations under section 301.5; or

conceal a thing includes conceal or disguise:

(a) the nature, source or location of the thing; or

(b) any movement of the thing; or

(d) the identity of any owner of the thing.

controlled drug means a substance, other than a growing plant:

(a) listed or described as a controlled drug in section 314.1; or

(b) prescribed by regulations under paragraph 301.1(1)(a); or

controlled plant means a growing plant:

(a) listed or described as a controlled plant in section 314.2; or

(b) prescribed by regulations under paragraph 301.1(1)(b); or

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controlled precursor means a substance (including a growing

plant):

(a) listed or described as a controlled precursor in section 314.3;

(b) prescribed by regulations under subsection 301.2(1); or

cultivate has the meaning given by subsection 303.1(1).

cultivates a plant has the meaning given by subsection 303.1(2).

cultivates a plant for a commercial purpose has the meaning given

by section 303.3.

export includes take from Australia.

import includes bring into Australia.

manufacture has the meaning given by subsection 305.1(1).

manufactures a substance has the meaning given by subsection

305.1(2).

manufactures a substance for a commercial purpose has the

meaning given by section 305.2.

marketable quantity, in relation to a controlled drug, controlled

plant, controlled precursor, border controlled drug, border

controlled plant or border controlled precursor means a quantity

not less than the quantity specified as a marketable quantity of the

drug, plant or precursor in:

(a) Division 314; or

(b) regulations under section 301.5; or

possession of a thing includes the following:

(a) receiving or obtaining possession of the thing;

(b) having control over the disposition of the thing (whether or

not the thing is in the custody of the person);

pre-traffics has the meaning given by section 306.1.

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procures an individual to pre-traffic has the meaning given by

section 309.9.

procures an individual to traffic has the meaning given by

section 309.6.

product of a plant has the meaning given by section 303.2.

requisite fraction has the meaning given by subsection 312.2(3).

sell includes the following:

(a) barter or exchange;

(b) agree to sell.

supply includes the following:

(a) supply, whether or not by way of sale;

(b) agree to supply.

taking, in relation to a substance or plant, means taking the

substance or plant, or a product of the plant, into the body.

trafficable quantity, in relation to a controlled drug or controlled

plant, means a quantity not less than the quantity specified as a

trafficable quantity of the drug or plant in:

(a) Division 314; or

(b) regulations under section 301.5; or

traffics has the meaning given by section 302.1.

transport includes deliver.

300.3 Geographical jurisdiction

Section 15.2 (extended geographical jurisdiction--category B)

applies to each offence against this Part.

300.4 Concurrent operation intended

(1) This Part is not intended to exclude or limit the concurrent

operation of any law of a State or Territory.

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(2) Without limiting subsection (1), this Part is not intended to exclude

or limit the concurrent operation of a law of a State or Territory

that makes:

(a) an act or omission that is an offence against a provision of

this Part; or

(b) a similar act or omission;

an offence against the law of the State or Territory.

(3) Subsection (2) applies even if the law of the State or Territory does

any one or more of the following:

(a) provides for a penalty for the offence that differs from the

penalty provided for in this Part;

(b) provides for a fault element in relation to the offence that

differs from the fault elements applicable to the offence

under this Part;

from the defences applicable to the offence under this Part.

300.5 Particular identity of drugs, plants and precursors

If, in a prosecution for an offence against this Part, it is necessary

for the prosecution to prove that a person knew, or was reckless as

to whether, a substance or plant was a controlled drug, controlled

plant, controlled precursor, border controlled drug, border

controlled plant or border controlled precursor, it is not necessary

for the prosecution to prove that the person knew, or was reckless

as to, the particular identity of the controlled drug, controlled plant,

controlled precursor, border controlled drug, border controlled

plant or border controlled precursor.

Division 301--Listing additional drugs, plants and

precursors

Subdivision A--Interim regulations

301.1 Interim regulations--controlled drugs and controlled plants

(1) The regulations may prescribe:

(a) a substance, other than a growing plant, as a controlled drug;

(b) a growing plant as a controlled plant;

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if the conditions set out in subsection (2) are met.

(2) The conditions are as follows:

(a) the Minister must be satisfied that taking the substance or

plant concerned:

(i) would create a substantial risk of death or serious harm;

(ii) would have a physical or mental effect substantially

similar to that caused by taking a substance or plant

already listed or described in section 314.1 or 314.2;

(b) the Minister must be satisfied that there is a substantial risk

that the substance or plant will be taken without appropriate

medical supervision.

(3) However, the regulations must not prescribe a particular substance

or plant under this section for a period that exceeds, or for periods

that in total exceed, 12 months.

301.2 Interim regulations--controlled precursors

(1) The regulations may prescribe a substance (including a growing

plant) as a controlled precursor if the condition set out in

subsection (2) is met.

(2) The condition is that the Minister must be satisfied that there is a

substantial risk that the substance concerned will be used to

unlawfully manufacture a controlled drug.

(3) However, the regulations must not prescribe a particular substance

under this section for a period that exceeds, or for periods that in

total exceed, 12 months.

301.3 Interim regulations--border controlled drugs and border

controlled plants

(1) The regulations may prescribe:

(a) a substance, other than a growing plant, as a border

controlled drug; or

(b) a growing plant as a border controlled plant;

if the conditions set out in subsection (2) are met.

(2) The conditions are as follows:

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(a) the Minister must be satisfied that taking the substance or

plant concerned:

(i) would create a substantial risk of death or serious harm;

(ii) would have a physical or mental effect substantially

similar to that caused by taking a substance or plant

already listed or described in section 314.4 or 314.5;

(b) the Minister must be satisfied that there is a substantial risk

that the substance or plant will be taken without appropriate

medical supervision.

(3) However, the regulations must not prescribe a particular substance

or plant under this section for a period that exceeds, or for periods

that in total exceed, 12 months.

301.4 Interim regulations--border controlled precursors

(1) The regulations may prescribe a substance (including a growing

plant) as a border controlled precursor if the condition set out in

subsection (2) is met.

(2) The condition is that the Minister must be satisfied that there is a

substantial risk that the substance concerned will be used to

unlawfully manufacture a controlled drug.

(3) However, the regulations must not prescribe a particular substance

under this section for a period that exceeds, or for periods that in

total exceed, 12 months.

301.5 Interim regulations--commercial, marketable and trafficable

quantities

(1) The regulations may prescribe:

(a) a quantity of a controlled drug or controlled plant as a

commercial, marketable or trafficable quantity of the drug or

plant; or

(b) a quantity of a controlled precursor as a commercial or

marketable quantity of the precursor.

(2) However, the regulations must not prescribe:

(a) a commercial quantity of a particular controlled drug,

controlled plant or controlled precursor; or

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(b) a marketable quantity of a particular controlled drug,

controlled plant or controlled precursor; or

controlled plant;

for a period that exceeds, or for periods that in total exceed, 12

months.

(3) If:

(a) there is no commercial, marketable or trafficable quantity

specified in section 314.1 for a substance listed or described

as a controlled drug in that section; or

(b) there is no commercial, marketable or trafficable quantity

specified in section 314.2 for a substance listed or described

as a controlled plant in that section; or

section 314.3 for a substance listed or described as a

controlled precursor in that section;

regulations under subsection (1) may prescribe such a quantity of

the drug, plant or precursor.

(4) The regulations may prescribe a quantity of a border controlled

drug, border controlled plant or border controlled precursor as a

commercial or marketable quantity of the drug, plant or precursor.

(5) However, the regulations must not prescribe:

(a) a commercial quantity of a particular border controlled drug,

border controlled plant or border controlled precursor; or

(b) a marketable quantity of a particular border controlled drug,

border controlled plant or border controlled precursor;

for a period that exceeds, or for periods that in total exceed, 12

months.

(6) If:

(a) there is no commercial or marketable quantity specified in

section 314.4 for a substance listed or described as a border

controlled drug in that section; or

(b) there is no commercial or marketable quantity specified in

section 314.5 for a substance listed or described as a border

controlled plant in that section; or

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section 314.6 for a substance listed or described as a border

controlled precursor in that section;

regulations under subsection (4) may prescribe such a quantity of

the drug, plant or precursor.

Subdivision B--Emergency determinations

301.6 Emergency determinations--controlled drugs and controlled

plants

(1) The Minister may, by legislative instrument, determine that:

(a) a substance, other than a growing plant, is a controlled drug;

(b) a growing plant is a controlled plant.

(2) The Minister must not make a determination under subsection (1)

unless he or she is satisfied:

(a) that taking the substance or plant concerned:

(i) would create a substantial risk of death or serious harm;

(ii) would have a physical or mental effect substantially

similar to that caused by taking a substance or plant

already listed or described in section 314.1 or 314.2;

and

(b) that there is an imminent and substantial risk that the

substance or plant will be:

(i) taken without appropriate medical supervision; or

(ii) imported and made available for taking without

appropriate medical supervision.

Note:

Sections 301.11 and 301.12 set out general rules for emergency

determinations.

301.7 Emergency determinations--controlled precursors

(1) The Minister may, by legislative instrument, determine that a

substance (including a growing plant) is a controlled precursor.

(2) The Minister must not make a determination under subsection (1)

unless he or she is satisfied that there is an imminent and

substantial risk that the substance will be:

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(a) used to unlawfully manufacture a controlled drug; or

(b) imported and made available to be used in unlawfully

manufacturing a controlled drug.

Note:

Sections 301.11 and 301.12 set out general rules for emergency

determinations.

301.8 Emergency determinations--border controlled drugs and

border controlled plants

(1) The Minister may, by legislative instrument, determine that:

(a) a substance, other than a growing plant, is a border controlled

drug; or

(b) a growing plant is a border controlled plant.

(2) The Minister must not make a determination under subsection (1)

unless he or she is satisfied:

(a) that taking the substance or plant concerned:

(i) would create a substantial risk of death or serious harm;

(ii) would have a physical or mental effect substantially

similar to that caused by taking a substance or plant

already listed or described in section 314.4 or 314.5;

and

(b) that there is an imminent and substantial risk that the

substance or plant will be:

(i) taken without appropriate medical supervision; or

(ii) imported and made available for taking without

appropriate medical supervision.

Note:

Sections 301.11 and 301.12 set out general rules for emergency

determinations.

301.9 Emergency determinations--border controlled precursors

(1) The Minister may, by legislative instrument, determine that a

substance (including a growing plant) is a border controlled

precursor.

(2) The Minister must not make a determination under subsection (1)

unless he or she is satisfied that there is an imminent and

substantial risk that the substance will be:

(a) used to unlawfully manufacture a controlled drug; or

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(b) imported and made available to be used in unlawfully

manufacturing a controlled drug.

Note:

Sections 301.11 and 301.12 set out general rules for emergency

determinations.

301.10 Emergency determinations--commercial, marketable and

trafficable quantities

(1) The Minister may, by legislative instrument, determine that:

(a) a quantity of a controlled drug or controlled plant is a

commercial, marketable or trafficable quantity of the drug or

plant; or

(b) a quantity of a controlled precursor is a commercial or

marketable quantity of the precursor.

(2) If:

(a) there is no commercial, marketable or trafficable quantity

specified in section 314.1 for a substance listed or described

as a controlled drug in that section; or

(b) there is no commercial, marketable or trafficable quantity

specified in section 314.2 for a substance listed or described

as a controlled plant in that section; or

section 314.3 for a substance listed or described as a

controlled precursor in that section;

the Minister may, under subsection (1), determine such a quantity

of the drug, plant or precursor.

(3) The Minister may, by legislative instrument, determine that a

quantity of a border controlled drug, border controlled plant or

border controlled precursor is a commercial or marketable quantity

of the drug, plant or precursor.

(4) If:

(a) there is no commercial or marketable quantity specified in

section 314.4 for a substance listed or described as a border

controlled drug in that section; or

(b) there is no commercial or marketable quantity specified in

section 314.5 for a substance listed or described as a border

controlled plant in that section; or

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section 314.6 for a substance listed or described as a border

controlled precursor in that section;

the Minister may, under subsection (3), determine such a quantity

of the drug, plant or precursor.

Note:

Sections 301.11 and 301.12 set out general rules for emergency

determinations.

301.11 General rules--period of effect, publication etc.

(1) A determination under this Subdivision has effect:

(a) from the time it is registered (within the meaning of the

Legislative Instruments Act 2003); and

(b) for the period of 28 days from that registration or such

shorter period as is specified in the determination.

(2) However, despite paragraph (1)(b), if:

(a) the Minister has made a determination under this

Subdivision; and

(b) exceptional circumstances have prevented the making of

regulations to the same effect;

the Minister may, by legislative instrument, extend the period

during which the determination is in force by no more than 28

days.

(3) The Minister must not make more than one determination under

sections 301.6 to 301.9 in relation to a particular substance or

plant.

(4) If the Minister makes a determination under this Subdivision, the

Minister must, on or before the day on which the determination is

registered:

(a) make a public announcement of the determination; and

(b) cause a copy of the announcement to be published:

(i) on the Internet; and

(ii) in a newspaper circulating in each State, the Australian

Capital Territory and the Northern Territory.

(5) An announcement made under subsection (4) is not a legislative

instrument.

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301.12 General rule--inconsistency with regulations

Despite subsections 301.11(1) and (2), a determination made under

this Subdivision has no effect to the extent that it is inconsistent

with a regulation made under Subdivision A.

Division 302--Trafficking controlled drugs

302.1 Meaning of traffics

(1) For the purposes of this Part, a person traffics in a substance if:

(a) the person sells the substance; or

(b) the person prepares the substance for supply with the

intention of selling any of it or believing that another person

intends to sell any of it; or

selling any of it or believing that another person intends to

sell any of it; or

(d) the person guards or conceals the substance with the

intention of selling any of it or assisting another person to

sell any of it; or

(e) the person possesses the substance with the intention of

selling any of it.

(2) For the purposes of paragraph (1)(b), preparing a substance for

supply includes packaging the substance or separating the

substance into discrete units.

302.2 Trafficking commercial quantities of controlled drugs

(1) A person commits an offence if:

(a) the person traffics in a substance; and

(b) the substance is a controlled drug; and

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

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302.3 Trafficking marketable quantities of controlled drugs

(1) A person commits an offence if:

(a) the person traffics in a substance; and

(b) the substance is a controlled drug; and

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

302.4 Trafficking controlled drugs

(1) A person commits an offence if:

(a) the person traffics in a substance; and

(b) the substance is a controlled drug.

Penalty: Imprisonment for 10 years or 2,000 penalty units, or

both.

(2) The fault element for paragraph (1)(b) is recklessness.

302.5 Presumption where trafficable quantities are involved

(1) For the purposes of proving an offence against this Division, if a

person has:

(a) prepared a trafficable quantity of a substance for supply; or

(b) transported a trafficable quantity of a substance; or

(d) possessed a trafficable quantity of a substance;

the person is taken to have had the necessary intention or belief

concerning the sale of the substance to have been trafficking in the

substance.

(2) Subsection (1) does not apply if the person proves that he or she

had neither that intention nor belief.

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Note 1:

A defendant bears a legal burden in relation to the matters in

subsection (2) (see section 13.4).

Note 2:

This section does not apply where quantities are combined for the

purposes of section 311.2 (see subsection 311.2(3)).

302.6 Purchase of controlled drugs is not an ancillary offence

A person does not commit:

(a) an offence against this Division because of the operation of

section 11.2; or

(b) an offence against section 11.4 or 11.5 that relates to an

offence against this Division;

merely because the person purchases, or intends to purchase, a

controlled drug from another person.

Note:

A defendant bears an evidential burden in relation to the matters in

this section (see subsection 13.3(3)).

Division 303--Commercial cultivation of controlled plants

303.1 Meanings of cultivate and cultivates a plant

(1) For the purposes of this Part, cultivate includes the following:

(a) plant a seed, seedling or cutting;

(b) transplant a plant;

(d) guard or conceal a plant (including against interference or

discovery by humans or natural predators);

(e) harvest a plant, pick any part of a plant or separate any resin

or other substance from a plant.

(2) For the purposes of this Part, a person cultivates a plant if the

person:

(a) engages in its cultivation; or

(b) exercises control or direction over its cultivation; or

303.2 Meaning of product of a plant

For the purposes of this Part, the product of a plant includes the

following:

(a) a seed of the plant;

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(b) a part of the plant (whether alive or dead);

303.3 Meaning of cultivates a plant for a commercial purpose

For the purposes of this Part, a person cultivates a plant for a

commercial purpose if the person cultivates the plant:

(a) with the intention of selling any of it or its products; or

(b) believing that another person intends to sell any of it or its

products.

303.4 Cultivating commercial quantities of controlled plants

(1) A person commits an offence if:

(a) the person cultivates a plant for a commercial purpose; and

(b) the plant is a controlled plant; and

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

303.5 Cultivating marketable quantities of controlled plants

(1) A person commits an offence if:

(a) the person cultivates a plant for a commercial purpose; and

(b) the plant is a controlled plant; and

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

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303.6 Cultivating controlled plants

(1) A person commits an offence if:

(a) the person cultivates a plant for a commercial purpose; and

(b) the plant is a controlled plant.

Penalty: Imprisonment for 10 years or 2,000 penalty units, or

both.

(2) The fault element for paragraph (1)(b) is recklessness.

303.7 Presumption where trafficable quantities are involved

(1) For the purposes of proving an offence against this Division, if a

person has cultivated a trafficable quantity of a plant, the person is

taken to have had the necessary intention or belief concerning the

sale of the plant to have been cultivating the plant for a commercial

purpose.

(2) Subsection (1) does not apply if the person proves that he or she

had neither that intention nor belief.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (2) (see section 13.4).

Division 304--Selling controlled plants

304.1 Selling commercial quantities of controlled plants

(1) A person commits an offence if:

(a) the person sells a plant; and

(b) the plant is a controlled plant; and

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

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304.2 Selling marketable quantities of controlled plants

(1) A person commits an offence if:

(a) the person sells a plant; and

(b) the plant is a controlled plant; and

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

304.3 Selling controlled plants

(1) A person commits an offence if:

(a) the person sells a plant; and

(b) the plant is a controlled plant.

Penalty: Imprisonment for 10 years or 2,000 penalty units, or

both.

(2) The fault element for paragraph (1)(b) is recklessness.

Division 305--Commercial manufacture of controlled

drugs

305.1 Meanings of manufacture and manufactures a substance

(1) For the purposes of this Part, manufacture means any process by

which a substance is produced (other than the cultivation of a

plant), and includes the following:

(a) the process of extracting or refining a substance;

(b) the process of transforming a substance into a different

substance.

(2) For the purposes of this Part, a person manufactures a substance if

the person:

(a) engages in its manufacture; or

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(b) exercises control or direction over its manufacture; or

305.2 Meaning of manufactures a substance for a commercial purpose

For the purposes of this Part, a person manufactures a substance

for a commercial purpose if the person manufactures the

substance:

(a) with the intention of selling any of it; or

(b) believing that another person intends to sell any of it.

305.3 Manufacturing commercial quantities of controlled drugs

(1) A person commits an offence if:

(a) the person manufactures a substance for a commercial

purpose; and

(b) the substance is a controlled drug; and

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

305.4 Manufacturing marketable quantities of controlled drugs

(1) A person commits an offence if:

(a) the person manufactures a substance for a commercial

purpose; and

(b) the substance is a controlled drug; and

Penalty:

(a) in the case of an aggravated offence--imprisonment for 28

years or 5,600 penalty units, or both; or

(b) in any other case--imprisonment for 25 years or 5,000

penalty units, or both.

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Note:

The additional elements for an aggravated offence against this section

are set out in subsection 310.4(2).

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

305.5 Manufacturing controlled drugs

(1) A person commits an offence if:

(a) the person manufactures a substance for a commercial

purpose; and

(b) the substance is a controlled drug.

Penalty:

(a) in the case of an aggravated offence--imprisonment for 12

years or 2,400 penalty units, or both; or

(b) in any other case--imprisonment for 10 years or 2,000

penalty units, or both.

Note:

The additional elements for an aggravated offence against this section

are set out in subsection 310.4(2).

(2) The fault element for paragraph (1)(b) is recklessness.

305.6 Presumption where trafficable quantities are involved

(1) For the purposes of proving an offence against this Division, if a

person has manufactured a trafficable quantity of a substance, the

person is taken to have had the necessary intention or belief

concerning the sale of the substance to have been manufacturing

the substance for a commercial purpose.

(2) Subsection (1) does not apply if the person proves that he or she

had neither that intention nor belief.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (2) (see section 13.4).

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Division 306--Pre-trafficking controlled precursors

306.1 Meaning of pre-traffics

For the purposes of this Part, a person pre-traffics in a substance if

the person:

(a) sells the substance believing that the person to whom it is

sold, or another person, intends to use any of the substance to

manufacture a controlled drug; or

(b) manufactures the substance:

(i) with the intention of using any of it to manufacture a

controlled drug; and

(ii) with the intention of selling any of the drug so

manufactured, or believing that another person intends

to sell any of the drug so manufactured; or

(i) with the intention of selling any of it to another person;

and

(ii) believing that the other person intends to use any of the

substance to manufacture a controlled drug; or

(d) possesses the substance:

(i) with the intention of using any of it to manufacture a

controlled drug; and

(ii) with the intention of selling any of the drug so

manufactured, or believing that another person intends

to sell any of the drug so manufactured.

306.2 Pre-trafficking commercial quantities of controlled precursors

(1) A person commits an offence if:

(a) the person pre-traffics in a substance; and

(b) the substance is a controlled precursor; and

Penalty:

(a) in the case of an aggravated offence--imprisonment for 28

years or 5,600 penalty units, or both; or

(b) in any other case--imprisonment for 25 years or 5,000

penalty units, or both.

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Note:

The additional elements for an aggravated offence against this section

are set out in subsection 310.4(3).

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

306.3 Pre-trafficking marketable quantities of controlled precursors

(1) A person commits an offence if:

(a) the person pre-traffics in a substance; and

(b) the substance is a controlled precursor; and

Penalty:

(a) in the case of an aggravated offence--imprisonment for 17

years or 3,400 penalty units, or both; or

(b) in any other case--imprisonment for 15 years or 3,000

penalty units, or both.

Note:

The additional elements for an aggravated offence against this section

are set out in subsection 310.4(3).

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(c).

306.4 Pre-trafficking controlled precursors

(1) A person commits an offence if:

(a) the person pre-traffics in a substance; and

(b) the substance is a controlled precursor.

Penalty:

(a) in the case of an aggravated offence--imprisonment for 9

years or 1,800 penalty units, or both; or

(b) in any other case--imprisonment for 7 years or 1,400 penalty

units, or both.

Note:

The additional elements for an aggravated offence against this section

are set out in subsection 310.4(3).

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(2) The fault element for paragraph (1)(b) is recklessness.

306.5 Presumption for pre-trafficking controlled precursors--sale

(1) For the purposes of proving an offence against subsection 306.4(1),

if:

(a) a person has sold a substance; and

(b) a law of the Commonwealth or of a State or Territory

required the sale to be authorised (however described); and

the person is taken to have sold the substance believing that the

person to whom it was sold, or another person, intended to use

some or all of the substance to manufacture a controlled drug.

(2) Subsection (1) does not apply if the person proves that he or she

did not have that belief.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (2) (see section 13.4).

306.6 Presumptions for pre-trafficking controlled precursors--

manufacture for drug manufacture

(1) For the purposes of proving an offence against subsection 306.4(1),

if:

(a) a person has manufactured a substance; and

(b) a law of the Commonwealth or of a State or Territory

required the manufacture to be authorised (however

described); and

the person is taken to have manufactured the substance with the

intention of using some or all of it to manufacture a controlled

drug.

(2) Subsection (1) does not apply if the person proves that he or she

did not have that intention.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (2) (see section 13.4).

(3) For the purposes of proving an offence against subsection 306.4(1),

if a person has manufactured a marketable quantity of a substance

with the intention of using some or all of it to manufacture a

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controlled drug, the person is taken to have done so with the

intention of selling some or all of the drug so manufactured, or

believing that another person intended to sell some or all of the

drug so manufactured.

(4) Subsection (3) does not apply if the person proves that he or she

had neither that intention nor belief.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (4) (see section 13.4).

306.7 Presumptions for pre-trafficking controlled precursors--

manufacture for sale

(1) For the purposes of proving an offence against subsection 306.4(1),

if a person has manufactured a marketable quantity of a substance,

the person is taken to have done so with the intention of selling

some or all of it to another person.

(2) Subsection (1) does not apply if the person proves that he or she

did not have that intention.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (2) (see section 13.4).

(3) For the purposes of proving an offence against subsection 306.4(1),

if:

(a) a person has manufactured a substance with the intention of

selling some or all of it to another person; and

(b) a law of the Commonwealth or of a State or Territory

required the manufacture to be authorised (however

described); and

the person is taken to have manufactured the substance believing

that the other person intended to use some or all of the substance to

manufacture a controlled drug.

(4) Subsection (3) does not apply if the person proves that he or she

did not have that belief.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (4) (see section 13.4).

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306.8 Presumptions for pre-trafficking controlled precursors--

possession

(1) For the purposes of proving an offence against subsection 306.4(1),

if:

(a) a person possessed a substance; and

(b) a law of the Commonwealth or of a State or Territory

required the possession to be authorised (however described);

and

the person is taken to have possessed the substance with the

intention of using some or all of it to manufacture a controlled

drug.

(2) Subsection (1) does not apply if the person proves that he or she

did not have that intention.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (2) (see section 13.4).

(3) For the purposes of proving an offence against subsection 306.4(1),

if a person possessed a marketable quantity of a substance with the

intention of using some or all of it to manufacture a controlled

drug, the person is taken to have done so with the intention of

selling some or all of the drug so manufactured, or believing that

another person intended to sell some or all of the drug so

manufactured.

(4) Subsection (3) does not apply if the person proves that he or she

had neither that intention nor belief.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (4) (see section 13.4).

Division 307--Import-export offences

Subdivision A--Importing and exporting border controlled

drugs or border controlled plants

307.1 Importing and exporting commercial quantities of border

controlled drugs or border controlled plants

(1) A person commits an offence if:

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(a) the person imports or exports a substance; and

(b) the substance is a border controlled drug or border controlled

plant; and

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

307.2 Importing and exporting marketable quantities of border

controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) the substance is a border controlled drug or border controlled

plant; and

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

(4) Subsection (1) does not apply if the person proves that he or she

neither intended, nor believed that another person intended, to sell

any of the border controlled drug or any of the border controlled

plant or its products.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (4) (see section 13.4).

307.3 Importing and exporting border controlled drugs or border

controlled plants

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) the substance is a border controlled drug or border controlled

plant.

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Penalty: Imprisonment for 10 years or 2,000 penalty units, or

both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Subsection (1) does not apply if the person proves that he or she

neither intended, nor believed that another person intended, to sell

any of the border controlled drug or any of the border controlled

plant or its products.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (3) (see section 13.4).

307.4 Importing and exporting border controlled drugs or border

controlled plants--no defence relating to lack of

commercial intent

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) the substance is a border controlled drug or border controlled

plant.

Penalty: Imprisonment for 2 years, or 400 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

Subdivision B--Possessing unlawfully imported border

controlled drugs or border controlled plants

307.5 Possessing commercial quantities of unlawfully imported

border controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

plant; and

(d) the quantity possessed is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

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(4) Subsection (1) does not apply if the person proves that he or she

did not know that the border controlled drug or border controlled

plant was unlawfully imported.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (4) (see section 13.4).

307.6 Possessing marketable quantities of unlawfully imported

border controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

plant; and

(d) the quantity possessed is a marketable quantity.

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she

neither intended, nor believed that another person intended, to sell

any of the border controlled drug or any of the border controlled

plant or its products.

(5) Subsection (1) does not apply if the person proves that he or she

did not know that the border controlled drug or border controlled

plant was unlawfully imported.

Note:

A defendant bears a legal burden in relation to the matters in

subsections (4) and (5) (see section 13.4).

307.7 Possessing unlawfully imported border controlled drugs or

border controlled plants

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

plant.

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Penalty: Imprisonment for 2 years or 400 penalty units, or both.

(2) Absolute liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she

did not know that the border controlled drug or border controlled

plant was unlawfully imported.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (4) (see section 13.4).

Subdivision C--Possessing border controlled drugs or border

controlled plants reasonably suspected of having

been unlawfully imported

307.8 Possessing commercial quantities of border controlled drugs

or border controlled plants reasonably suspected of

having been unlawfully imported

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance is reasonably suspected of having been

unlawfully imported; and

plant; and

(d) the quantity possessed is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that the border

controlled drug or border controlled plant was not unlawfully

imported.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (4) (see section 13.4).

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307.9 Possessing marketable quantities of border controlled drugs

or border controlled plants reasonably suspected of

having been unlawfully imported

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance is reasonably suspected of having been

unlawfully imported; and

plant; and

(d) the quantity possessed is a marketable quantity.

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she

neither intended, nor believed that another person intended, to sell

any of the border controlled drug or any of the border controlled

plant or its products.

(5) Subsection (1) does not apply if the person proves that the border

controlled drug or border controlled plant was not unlawfully

imported.

Note:

A defendant bears a legal burden in relation to the matters in

subsections (4) and (5) (see section 13.4).

307.10 Possessing border controlled drugs or border controlled

plants reasonably suspected of having been unlawfully

imported

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance is reasonably suspected of having been

unlawfully imported; and

plant.

Penalty: Imprisonment for 2 years or 400 penalty units, or both.

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(2) Absolute liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that the border

controlled drug or border controlled plant was not unlawfully

imported.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (4) (see section 13.4).

Subdivision D--Importing and exporting border controlled

precursors

307.11 Importing and exporting commercial quantities of border

controlled precursors

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) either or both of the following apply:

(i) the person intends to use any of the substance to

manufacture a controlled drug;

(ii) the person believes that another person intends to use

any of the substance to manufacture a controlled drug;

and

(d) the quantity imported or exported is a commercial quantity.

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) The fault element for paragraph (1)(c) is recklessness.

(3) Absolute liability applies to paragraph (1)(d).

307.12 Importing and exporting marketable quantities of border

controlled precursors

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) either or both of the following apply:

(i) the person intends to use any of the substance to

manufacture a controlled drug;

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(ii) the person believes that another person intends to use

any of the substance to manufacture a controlled drug;

and

(d) the quantity imported or exported is a marketable quantity.

Penalty: Imprisonment for 15 years or 3,000 penalty units, or

both.

(2) The fault element for paragraph (1)(c) is recklessness.

(3) Absolute liability applies to paragraph (1)(d).

(4) Subsection (1) does not apply if:

(a) in relation to conduct covered by subparagraph (1)(b)(i)--the

person proves that he or she neither intended, nor believed

that another person intended, to sell any of the controlled

drug so manufactured; or

(b) in relation to conduct covered by subparagraph (1)(b)(ii)--

the person proves that, although he or she believed that the

other person intended to use the substance to manufacture a

controlled drug, he or she did not intend to sell any of the

substance to the other person.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (4) (see section 13.4).

307.13 Importing and exporting border controlled precursors

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) either or both of the following apply:

(i) the person intends to use any of the substance to

manufacture a controlled drug;

(ii) the person believes that another person intends to use

any of the substance to manufacture a controlled drug;

and

Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.

(2) The fault element for paragraph (1)(c) is recklessness.

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(3) Subsection (1) does not apply if:

(a) in relation to conduct covered by subparagraph (1)(b)(i)--the

person proves that he or she neither intended, nor believed

that another person intended, to sell any of the controlled

drug so manufactured; or

(b) in relation to conduct covered by subparagraph (1)(b)(ii)--

the person proves that, although he or she believed that the

other person intended to use the substance to manufacture a

controlled drug, he or she did not intend to sell any of the

substance to the other person.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (3) (see section 13.4).

307.14 Presumptions for importing and exporting border controlled

precursors

(1) For the purposes of proving an offence against this Subdivision, if:

(a) a person has imported or exported a substance; and

(b) a law of the Commonwealth required the import or export to

be authorised (however described); and

the person is taken to have imported or exported the substance with

the intention of using some or all of the substance to manufacture a

controlled drug.

(2) Subsection (1) does not apply if the person proves that he or she

did not have that intention.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (2) (see section 13.4).

(3) For the purposes of proving an offence against this Subdivision, if:

(a) a person has imported or exported a substance; and

(b) a law of the Commonwealth required the import or export to

be authorised (however described); and

the person is taken to have imported or exported the substance

believing that another person intends to use some or all of the

substance to manufacture a controlled drug.

(4) Subsection (3) does not apply if the person proves that he or she

did not have that belief.

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Note:

A defendant bears a legal burden in relation to the matter in

subsection (4) (see section 13.4).

Division 308--Possession offences

308.1 Possessing controlled drugs

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance is a controlled drug.

Penalty: Imprisonment for 2 years or 400 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) If:

(a) a person is charged with, or convicted of, an offence against

subsection (1); and

(b) the offence is alleged to have been, or was, committed in a

State or Territory;

the person may be tried, punished or otherwise dealt with as if the

offence were an offence against the law of the State or Territory

that involved the possession or use of a controlled drug (however

described).

Note:

Subsection (3) allows for drug users to be diverted from the criminal

justice system to receive the same education, treatment and support

that is available in relation to drug offences under State and Territory

laws.

(4) However, a person punished under subsection (3) must not be:

(a) sentenced to a period of imprisonment that exceeds the

period set out in subsection (1); or

(b) fined an amount that exceeds the amount set out in

subsection (1).

(5) Subsection (3) does not limit:

(a) Part 1B of the Crimes Act 1914; or

(b) section 68 or 79 of the Judiciary Act 1903; or

apply in relation to the exercise of federal jurisdiction.

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308.2 Possessing controlled precursors

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the person intends to use any of the substance to manufacture

a controlled drug; and

Penalty: Imprisonment for 2 years or 400 penalty units, or both.

(2) The fault element for paragraph (1)(c) is recklessness.

(3) For the purposes of proving an offence against subsection (1), if:

(a) a person possessed a substance; and

(b) a law of the Commonwealth or of a State or Territory

required the possession to be authorised (however described);

and

the person is taken to have possessed the substance with the

intention of using some or all of the substance to manufacture a

controlled drug.

(4) Subsection (3) does not apply if the person proves that he or she

did not have that intention.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (4) (see section 13.4).

308.3 Possessing plant material, equipment or instructions for

commercial cultivation of controlled plants

A person commits an offence if:

(a) the person possesses a plant, a product of a plant, any

equipment or any document containing instructions for

growing a plant; and

(b) the person intends to use the plant, product, equipment or

document to cultivate a controlled plant; and

intends to sell, any of the plant so cultivated or any of its

products.

Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.

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308.4 Possessing substance, equipment or instructions for

commercial manufacture of controlled drugs

(1) A person commits an offence if:

(a) the person possesses any substance (other than a controlled

precursor), any equipment or any document containing

instructions for manufacturing a controlled drug; and

(b) the person intends to use the substance, equipment or

document to manufacture a controlled drug; and

intends to sell, any of the drug so manufactured.

Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.

(2) For the purposes of proving an offence against subsection (1), if:

(a) a person possessed a tablet press; and

(b) a law of the Commonwealth or of a State or Territory

required the possession to be authorised (however described);

and

the person is taken to have possessed the tablet press with the

intention of using it to manufacture a controlled drug.

(3) Subsection (2) does not apply if the person proves that he or she

did not have that intention.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (3) (see section 13.4).

Division 309--Drug offences involving children

309.1 Children not criminally responsible for offences against this

Division

A child is not criminally responsible for an offence against this

Division.

Note:

For the purposes of this Part, a child is an individual under 18 years of

age (see section 300.2).

309.2 Supplying controlled drugs to children

(1) A person commits an offence if:

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(a) the person supplies a substance to an individual; and

(b) the individual is a child; and

Penalty: Imprisonment for 15 years or 3,000 penalty units, or

both.

(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

309.3 Supplying marketable quantities of controlled drugs to

children for trafficking

(1) A person commits an offence if:

(a) the person supplies a substance to an individual; and

(b) the individual is a child; and

(d) the quantity supplied is a marketable quantity; and

(e) the person supplies the controlled drug believing that the

child intends to sell any of it.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Absolute liability applies to paragraph (1)(d).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(d).

309.4 Supplying controlled drugs to children for trafficking

(1) A person commits an offence if:

(a) the person supplies a substance to an individual; and

(b) the individual is a child; and

(d) the person supplies the controlled drug believing that the

child intends to sell any of it.

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Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

309.5 Presumption where trafficable quantities are involved

(1) For the purposes of proving an offence against section 309.3 or

309.4, if a person has supplied a trafficable quantity of a substance

to a child, the person is taken to have done so believing that the

child intended to sell some or all of it.

(2) Subsection (1) does not apply if the person proves that he or she

did not have that belief.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (2) (see section 13.4).

309.6 Meaning of procures an individual to traffic

(1) For the purposes of this Part, a person procures an individual to

traffic in a substance if:

(a) the person procures the individual to sell the substance; or

(b) the person, with the intention of selling any of the substance

or believing that another person intends to sell any of the

substance, procures the individual to prepare the substance

for supply or to transport the substance; or

or assisting another person to sell any of the substance,

procures the individual to guard or conceal the substance.

(2) For the purposes of paragraph (1)(b), preparing a substance for

supply includes packaging the substance or separating the

substance into discrete units.

309.7 Procuring children for trafficking marketable quantities of

controlled drugs

(1) A person commits an offence if:

(a) the person procures an individual to traffic in a quantity of a

substance; and

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(b) the individual is a child; and

(d) the quantity is a marketable quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Absolute liability applies to paragraph (1)(d).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(d).

309.8 Procuring children for trafficking controlled drugs

(1) A person commits an offence if:

(a) the person procures an individual to traffic in a substance;

and

(b) the individual is a child; and

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

309.9 Meaning of procures an individual to pre-traffic

For the purposes of this Part, a person procures an individual to

pre-traffic in a substance if the person procures the individual to

sell the substance believing that the person to whom the substance

is sold intends to use any of the substance to manufacture a

controlled drug.

309.10 Procuring children for pre-trafficking marketable quantities

of controlled precursors

(1) A person commits an offence if:

(a) the person procures an individual to pre-traffic in a quantity

of a substance; and

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(b) the individual is a child; and

(d) the quantity is a marketable quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Absolute liability applies to paragraph (1)(d).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(d).

309.11 Procuring children for pre-trafficking controlled precursors

(1) A person commits an offence if:

(a) the person procures an individual to pre-traffic in a

substance; and

(b) the individual is a child; and

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

309.12 Procuring children for importing or exporting marketable

quantities of border controlled drugs or border controlled

plants

(1) A person commits an offence if:

(a) the person procures an individual to import or export a

substance; and

(b) the individual is a child; and

plant; and

(d) the quantity imported or exported is a marketable quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

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(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Absolute liability applies to paragraph (1)(d).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(d).

(5) Subsection (1) does not apply if the person proves that he or she

neither intended, nor believed that another person intended, to sell

any of the border controlled drug or any of the border controlled

plant or its products.

Note 1:

A defendant bears a legal burden in relation to the matters in

subsection (5) (see section 13.4).

Note 2:

A person who does not commit an offence against this section because

he or she proves the matters in subsection (5) may, however, have

committed an offence against section 309.2 (supplying controlled

drugs to children).

309.13 Procuring children for importing or exporting border

controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person procures an individual to import or export a

substance; and

(b) the individual is a child; and

plant.

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) Strict liability applies to paragraph (1)(b).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she

neither intended, nor believed that another person intended, to sell

any of the border controlled drug or any of the border controlled

plant or its products.

Note 1:

A defendant bears a legal burden in relation to the matters in

subsection (4) (see section 13.4).

Note 2:

A person who does not commit an offence against this section because

he or she proves the matters in subsection (4) may, however, have

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committed an offence against section 309.2 (supplying controlled

drugs to children).

309.14 Procuring children for importing or exporting marketable

quantities of border controlled precursors

(1) A person commits an offence if:

(a) the person procures an individual to import or export a

substance; and

(b) either or both of the following apply:

(i) the person intends to use any of the substance to

manufacture a controlled drug;

(ii) the person believes that another person intends to use

any of the substance to manufacture a controlled drug;

and

(d) the substance is a border controlled precursor; and

(e) the quantity imported or exported is a marketable quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Strict liability applies to paragraph (1)(c).

(3) The fault element for paragraph (1)(d) is recklessness.

(4) Absolute liability applies to paragraph (1)(e).

Note:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(e).

(5) Subsection (1) does not apply if:

(a) in relation to conduct covered by subparagraph (1)(b)(i)--the

person proves that he or she neither intended, nor believed

that another person intended, to sell any of the controlled

drug so manufactured; or

(b) in relation to conduct covered by subparagraph (1)(b)(ii)--

the person proves that, although he or she believed that the

other person intended to use the substance to manufacture a

controlled drug, he or she did not intend to sell any of the

substance to the other person.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (5) (see section 13.4).

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309.15 Procuring children for importing or exporting border

controlled precursors

(1) A person commits an offence if:

(a) the person procures an individual to import or export a

substance; and

(b) either or both of the following apply:

(i) the person intends to use any of the substance to

manufacture a controlled drug;

(ii) the person believes that another person intends to use

any of the substance to manufacture a controlled drug;

and

(d) the substance is a border controlled precursor.

Penalty: Imprisonment for 25 years or 5,000 penalty units, or

both.

(2) Strict liability applies to paragraph (1)(c).

(3) The fault element for paragraph (1)(d) is recklessness.

(4) Subsection (1) does not apply if:

(a) in relation to conduct covered by subparagraph (1)(b)(i)--the

person proves that he or she neither intended, nor believed

that another person intended, to sell any of the controlled

drug so manufactured; or

(b) in relation to conduct covered by subparagraph (1)(b)(ii)--

the person proves that, although he or she believed that the

other person intended to use the substance to manufacture a

controlled drug, he or she did not intend to sell any of the

substance to the other person.

Note:

A defendant bears a legal burden in relation to the matters in

subsection (4) (see section 13.4).

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Division 310--Harm and danger to children under 14 from

serious drug offences

310.1 Children not criminally responsible for offences against this

Division

A child is not criminally responsible for an offence against this

Division.

Note:

For the purposes of this Part, a child is an individual under 18 years of

age (see section 300.2).

310.2 Danger from exposure to unlawful manufacturing

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct gives rise to a danger of serious harm to an

individual; and

(d) the danger exists because the individual is exposed to the

manufacture of a controlled drug or a controlled precursor;

and

(e) the manufacture is an offence against this Part, or would be

an offence against this Part if the manufacture were for a

commercial purpose (see section 305.2).

Penalty: Imprisonment for 9 years or 1,800 penalty units, or both.

Note:

A person can commit an offence against subsection (1) without being

involved in the unlawful manufacture of controlled drugs or controlled

precursors. The person need only expose a child under 14 to the

danger of serious harm from such manufacture.

(2) Strict liability applies to paragraphs (1)(c) and (e).

(3) For the purposes of subsection (1), if a person's conduct exposes

another person to the risk of catching a disease that may give rise

to a danger of serious harm to the other person, the conduct is

taken to give rise to a danger of serious harm to the other person.

(4) For the purposes of subsection (1), a person's conduct gives rise to

a danger of serious harm if the conduct is ordinarily capable of

creating a real, and not merely a theoretical, danger of serious

harm.

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(5) For the purposes of subsection (1), a person's conduct may give

rise to a danger of serious harm whatever the statistical or

arithmetical calculation of the degree of risk of serious harm

involved.

(6) In a prosecution for an offence against subsection (1), it is not

necessary to prove:

(a) that a person was actually placed in danger of serious harm

by the conduct concerned; or

(b) that a particular person committed the offence mentioned in

paragraph (1)(e).

(7) If, in a prosecution for an offence against subsection (1), the

conduct of the defendant for the purposes of paragraph (1)(a) is

alleged to be an omission, the fault element for that omission is

recklessness.

310.3 Harm from exposure to unlawful manufacturing

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes harm to an individual; and

(d) the harm is caused because the individual is exposed to the

manufacture of a controlled drug or a controlled precursor;

and

(e) the manufacture is an offence against this Part, or would be

an offence against this Part if the manufacture were for a

commercial purpose (see section 305.2).

Penalty: Imprisonment for 9 years or 1,800 penalty units, or both.

Note:

A person can commit an offence against this section without being

involved in the unlawful manufacture of controlled drugs or controlled

precursors. The person need only cause harm to a child under 14 by

exposing the child to such manufacture.

(2) Strict liability applies to paragraphs (1)(c) and (e).

(3) In a prosecution for an offence against subsection (1), it is not

necessary to prove that a particular person committed the offence

mentioned in paragraph (1)(e).

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(4) If, in a prosecution for an offence against subsection (1), the

conduct of the defendant for the purposes of paragraph (1)(a) is

alleged to be an omission, the fault element for that omission is

recklessness.

310.4 Aggravated offences--manufacturing controlled drugs and

controlled precursors

(1) If the prosecution intends to prove an aggravated offence, the

charge must allege the relevant aggravated offence.

(2) For the purposes of this Part, an offence against section 305.4 or

305.5 is an aggravated offence if:

(a) the commission of the offence exposes an individual to the

manufacture of a controlled drug; and

(b) the individual is under 14 years of age.

(3) For the purposes of this Part, an offence against section 306.2,

306.3 or 306.4 is an aggravated offence if:

(a) the commission of the offence exposes an individual to:

(i) a controlled precursor intended to be used for the

manufacture of a controlled drug; or

(ii) the manufacture of a controlled precursor; and

(b) the individual is under 14 years of age.

(4) The fault element for paragraphs (2)(a) and (3)(a) is recklessness.

(5) Strict liability applies to paragraphs (2)(b) and (3)(b).

(6) Subsections (2) and (3) do not apply if the commission of the

offence does not give rise to a danger of harm to the individual.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6) (see subsection 13.3(3)).

(7) For the purposes of this section, if the commission of an offence

exposes a person to the risk of catching a disease that may give rise

to a danger of harm to the person, the commission of the offence is

taken to give rise to a danger of harm to the person.

(8) For the purposes of this section, the commission of an offence

gives rise to a danger of harm if the commission of the offence is

ordinarily capable of creating a real, and not merely a theoretical,

danger of harm.

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(9) For the purposes of this section, the commission of an offence may

give rise to a danger of harm whatever the statistical or arithmetical

calculation of the degree of risk of harm involved.

Division 311--Combining quantities of drugs, plants or

precursors

Subdivision A--Combining different parcels on the same

occasion

311.1 Combining different parcels on the same occasion

(1) If, on the same occasion, a person:

(a) traffics in different parcels of controlled drugs

(Division 302); or

(b) cultivates different parcels of controlled plants

(Division 303); or

(d) manufactures different parcels of controlled drugs

(Division 305); or

(e) pre-traffics in different parcels of controlled precursors

(Division 306); or

(f) imports or exports different parcels of border controlled

drugs or border controlled plants (Subdivision A of

Division 307); or

(g) possesses different parcels of unlawfully imported border

controlled drugs or border controlled plants (Subdivision B

of Division 307); or

(h) possesses different parcels of border controlled drugs or

border controlled plants reasonably suspected of having been

unlawfully imported (Subdivision C of Division 307); or

(i) imports or exports different parcels of border controlled

precursors (Subdivision D of Division 307); or

(j) supplies different parcels of controlled drugs to a child for

trafficking (sections 309.3 and 309.4); or

(k) procures a child to traffic in different parcels of controlled

drugs (sections 309.7 and 309.8); or

(l) procures a child to pre-traffic in different parcels of

controlled precursors (sections 309.10 and 309.11); or

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(m) procures a child to import or export different parcels of

border controlled drugs or border controlled plants

(sections 309.12 and 309.13); or

(n) procures a child to import or export different parcels of

border controlled precursors (sections 309.14 and 309.15);

the person may be charged with a single offence against this Part in

respect of all or any of the different parcels of drugs, plants or

precursors.

(2) The quantity of the drugs, plants or precursors for the purposes of

the offence is the sum of the quantities of the drugs, plants or

precursors in the different parcels.

Note:

See section 312.2 for working out quantities where different kinds of

controlled or border controlled drugs, plants or precursors are

involved.

(3) If the prosecution intends to rely on this Subdivision, particulars of

each parcel of drugs, plants or precursors must be set out in the

charge.

(4) This Subdivision does not prevent a person being charged with

separate offences in respect of different parcels of drugs, plants or

precursors.

Subdivision B--Combining parcels from organised commercial

activities

311.2 Business of trafficking controlled drugs

(1) In proceedings for an offence against:

(a) section 302.2 (trafficking commercial quantities of controlled

drugs); or

(b) section 302.3 (trafficking marketable quantities of controlled

drugs);

the prosecution may prove the element of the offence relating to

the quantity of controlled drug by proving:

activity that involved repeated trafficking in controlled drugs;

and

(d) that the relevant quantity of a controlled drug, or of a

combination of controlled drugs, was trafficked in the course

of that activity.

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Note 1:

See section 312.2 for working out quantities where different kinds of

controlled drugs are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(d).

(2) For the purposes of subsection (1) it is not necessary for the

prosecution to specify or prove:

(a) the exact date of each occasion of trafficking; or

(b) the exact quantity trafficked on each occasion.

(3) Section 302.5 (presumption where trafficable quantities are

involved) does not apply to an offence prosecuted in accordance

with subsection (1).

311.3 Business of pre-trafficking by selling controlled precursors

(1) In proceedings for an offence against:

(a) section 306.2 (pre-trafficking commercial quantities of

controlled precursors); or

(b) section 306.3 (pre-trafficking marketable quantities of

controlled precursors);

where the alleged conduct of the defendant involves pre-trafficking

by selling controlled precursors, the prosecution may prove the

element of the offence relating to the quantity of controlled

precursor by proving:

activity that involved repeated pre-trafficking by selling

controlled precursors; and

(d) that the relevant quantity of a controlled precursor, or of a

combination of controlled precursors, was pre-trafficked by

sale in the course of that activity.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled precursors are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(d).

(2) For the purposes of subsection (1) it is not necessary for the

prosecution to specify or prove:

(a) the exact date of each occasion of pre-trafficking; or

(b) the exact quantity pre-trafficked on each occasion.

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311.4 Business of importing or exporting border controlled drugs or

border controlled plants

(1) In proceedings for an offence against:

(a) section 307.1 (importing and exporting commercial

quantities of border controlled drugs or border controlled

plants); or

(b) section 307.2 (importing and exporting marketable quantities

of border controlled drugs or border controlled plants);

the prosecution may prove the element of the offence relating to

the quantity of border controlled drug or border controlled plant by

proving:

activity that involved repeated importing or exporting of

border controlled drugs or border controlled plants, or both;

and

(d) that the relevant quantity of a border controlled drug or

border controlled plant or both, or of a combination of border

controlled drugs or border controlled plants or both, was

imported or exported in the course of that activity.

Note:

See section 312.2 for working out quantities where different kinds of

border controlled drugs or border controlled plants are involved.

(2) For the purposes of subsection (1) it is not necessary for the

prosecution to specify or prove:

(a) the exact date of each occasion of import or export; or

(b) the exact quantity imported or exported on each occasion.

311.5 Business of importing or exporting border controlled

precursors

(1) In proceedings for an offence against:

(a) section 307.11 (importing and exporting commercial

quantities of border controlled precursors); or

(b) section 307.12 (importing and exporting marketable

quantities of border controlled precursors);

the prosecution may prove the element of the offence relating to

the quantity of border controlled precursor by proving:

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activity that involved repeated importing or exporting of

border controlled precursors; and

(d) that the relevant quantity of a border controlled precursor, or

of a combination of border controlled precursors, was

imported or exported in the course of that activity.

Note:

See section 312.2 for working out quantities where different kinds of

border controlled precursors are involved.

(2) For the purposes of subsection (1) it is not necessary for the

prosecution to specify or prove:

(a) the exact date of each occasion of import or export; or

(b) the exact quantity imported or exported on each occasion.

311.6 Business of supplying controlled drugs to children

(1) In proceedings for an offence against section 309.3 (supplying

marketable quantities of controlled drugs to children for

trafficking), the prosecution may prove the element of the offence

relating to the quantity of controlled drug by proving:

(a) that the defendant was engaged in an organised commercial

activity that involved repeated supplying of drugs to children

for trafficking; and

(b) that the relevant quantity of a controlled drug, or of a

combination of controlled drugs, was supplied to children in

the course of that activity.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled drugs are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (1)(b).

(2) For the purposes of subsection (1) it is not necessary for the

prosecution to specify or prove:

(a) the exact date of each occasion of supply; or

(b) the exact quantity supplied on each occasion.

(3) Section 309.5 (presumption where trafficable quantities are

involved) does not apply to an offence prosecuted in accordance

with subsection (1).

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311.7 General rules--combining parcels from organised commercial

activities

(1) If, in proceedings for an offence, the prosecution intends to rely on

section 311.2, 311.3, 311.4, 311.5 or 311.6:

(a) the fact that it intends to do so must be set out in the charge;

and

(b) a description of the conduct alleged for the purposes of that

section must be set out in the charge or provided to the

accused within a reasonable time before the proceedings.

(2) If:

(a) an occasion of trafficking, pre-trafficking, importing or

exporting or supplying is alleged in proceedings against a

person for an offence prosecuted in accordance with

section 311.2, 311.3, 311.4, 311.5 or 311.6; and

(b) the person is convicted or acquitted of the offence;

that occasion must not be alleged in proceedings against the person

for another offence against this Part.

(3) If:

(a) an occasion of trafficking, pre-trafficking, importing or

exporting or supplying is alleged in proceedings against a

person for an offence against this Part; and

(b) the person is convicted or acquitted of the offence;

that occasion must not be alleged in proceedings against the person

for an offence prosecuted in accordance with section 311.2, 311.3,

311.4, 311.5 or 311.6.

(4) Subject to subsections (2) and (3), this Subdivision does not

prevent a person being charged with separate offences in respect of

conduct on different occasions.

Subdivision C--Combining parcels from multiple offences

311.8 Multiple offences--trafficking controlled drugs

The prosecution may prove an offence against Division 302

(trafficking controlled drugs) by proving:

(a) that the defendant committed offences against that Division

on different occasions; and

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(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

a combination of controlled drugs, was trafficked during the

commission of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled drugs are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

311.9 Multiple offences--cultivating controlled plants

The prosecution may prove an offence against Division 303

(commercial cultivation of controlled plants) by proving:

(a) that the defendant committed offences against that Division

on different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

a combination of controlled plants, was cultivated during the

commission of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled plants are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

311.10 Multiple offences--selling controlled plants

The prosecution may prove an offence against Division 304

(selling controlled plants) by proving:

(a) that the defendant committed offences against that Division

on different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

a combination of controlled plants, was sold during the

commission of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled plants are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

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311.11 Multiple offences--manufacturing controlled drugs

The prosecution may prove an offence against Division 305

(commercial manufacture of controlled drugs) by proving:

(a) that the defendant committed offences against that Division

on different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

a combination of controlled drugs, was manufactured during

the commission of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled drugs are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

311.12 Multiple offences--pre-trafficking controlled precursors

The prosecution may prove an offence against Division 306

(pre-trafficking controlled precursors) by proving:

(a) that the defendant committed offences against that Division

on different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

or of a combination of controlled precursors, was

pre-trafficked during the commission of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled precursors are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

311.13 Multiple offences--importing or exporting border controlled

drugs or border controlled plants

The prosecution may prove an offence against Subdivision A of

Division 307 (importing and exporting border controlled drugs or

border controlled plants) by proving:

(a) that the defendant committed offences against that

Subdivision on different occasions; and

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(b) that each of those offences was committed within a period of

not more than 30 days from another of those offences; and

or border controlled plant or both, or of a combination of

border controlled drugs or border controlled plants or both,

was imported or exported during the commission of those

offences.

Note:

See section 312.2 for working out quantities where different kinds of

border controlled drugs or border controlled plants are involved.

311.14 Multiple offences--possessing unlawfully imported border

controlled drugs or border controlled plants

The prosecution may prove an offence against Subdivision B of

Division 307 (possessing unlawfully imported border controlled

drugs or border controlled plants) by proving:

(a) that the defendant committed offences against that

Subdivision on different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

or border controlled plant or both, or of a combination of

border controlled drugs or border controlled plants or both,

was possessed by the defendant during the commission of

those offences.

Note:

See section 312.2 for working out quantities where different kinds of

border controlled drugs or border controlled plants are involved.

311.15 Multiple offences--possessing border controlled drugs or

border controlled plants reasonably suspected of having

been unlawfully imported

The prosecution may prove an offence against Subdivision C of

Division 307 (possessing border controlled drugs or border

controlled plants reasonably suspected of having been unlawfully

imported) by proving:

(a) that the defendant committed offences against that

Subdivision on different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

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or border controlled plant or both, or of a combination of

border controlled drugs or border controlled plants or both,

was possessed by the defendant during the commission of

those offences.

Note:

See section 312.2 for working out quantities where different kinds of

border controlled drugs or border controlled plants are involved.

311.16 Multiple offences--importing or exporting border controlled

precursors

The prosecution may prove an offence against Subdivision D of

Division 307 (importing and exporting border controlled

precursors) by proving:

(a) that the defendant committed offences against that

Subdivision on different occasions; and

(b) that each of those offences was committed within a period of

not more than 30 days from another of those offences; and

precursor, or of a combination of border controlled

precursors, was imported or exported during the commission

of those offences.

Note:

See section 312.2 for working out quantities where different kinds of

border controlled precursors are involved.

311.17 Multiple offences--supplying controlled drugs to children for

trafficking

The prosecution may prove an offence against section 309.3

(supplying marketable quantities of controlled drugs to children for

trafficking) by proving:

(a) that the defendant committed offences against section 309.4

(supplying controlled drugs to children for trafficking) on

different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

a combination of controlled drugs, was supplied during the

commission of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled drugs are involved.

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Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

311.18 Multiple offences--procuring children for trafficking

controlled drugs

The prosecution may prove an offence against section 309.7

(procuring children for trafficking marketable quantities of

controlled drugs) by proving:

(a) that the defendant committed offences against section 309.8

(procuring children for trafficking controlled drugs) on

different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

a combination of controlled drugs, was trafficked during the

commission of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled drugs are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

311.19 Multiple offences--procuring children for pre-trafficking

controlled precursors

The prosecution may prove an offence against section 309.10

(procuring children for pre-trafficking marketable quantities of

controlled precursors) by proving:

(a) that the defendant committed offences against section 309.11

(procuring children for pre-trafficking controlled precursors)

on different occasions; and

(b) that each of those offences was committed within a period of

not more than 7 days from another of those offences; and

or of a combination of controlled precursors, was

pre-trafficked during the commission of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

controlled precursors are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

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311.20 Multiple offences--procuring children for importing or

exporting border controlled drugs or border controlled

plants

The prosecution may prove an offence against section 309.12

(procuring children for importing or exporting marketable

quantities of border controlled drugs or border controlled plants)

by proving:

(a) that the defendant committed offences against section 309.13

(procuring children for importing or exporting border

controlled drugs or border controlled plants) on different

occasions; and

(b) that each of those offences was committed within a period of

not more than 30 days from another of those offences; and

or border controlled plant or both, or of a combination of

border controlled drugs or border controlled plants or both,

was imported or exported during the commission of those

offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

border controlled drugs or border controlled plants are involved.

Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

311.21 Multiple offences--procuring children for importing or

exporting border controlled precursors

The prosecution may prove an offence against section 309.14

(procuring children for importing or exporting marketable

quantities of border controlled precursors) by proving:

(a) that the defendant committed offences against section 309.15

(procuring children for importing or exporting border

controlled precursors) on different occasions; and

(b) that each of those offences was committed within a period of

not more than 30 days from another of those offences; and

precursor, or of a combination of border controlled

precursors, was imported or exported during the commission

of those offences.

Note 1:

See section 312.2 for working out quantities where different kinds of

border controlled precursors are involved.

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Note 2:

Section 313.4 provides a partial defence in relation to the matter in

paragraph (c).

311.22 General rules--combining parcels from multiple offences

(1) If the prosecution intends to rely on a section of this Subdivision,

the particulars of the offences alleged to have been committed on

the different occasions must be set out in the charge.

(2) The same parcel of controlled drugs, controlled plants, controlled

precursors, border controlled drugs, border controlled plants or

border controlled precursors must not be counted more than once

for the purposes of this Subdivision.

Example: A person is in possession of a quantity of a controlled drug for sale on

one day (the first occasion) and sells that particular quantity the next

day (the second occasion). Only the quantity trafficked on one of

those occasions may be counted.

(3) This Subdivision does not prevent a person being charged with

separate offences in respect of conduct on different occasions.

Division 312--Working out quantities of drugs, plants or

precursors

312.1 Working out quantities of drugs and precursors in mixtures

(1) If an alleged offence against this Part involves a quantity of a

controlled drug in a mixture of substances, the prosecution may

prove the quantity of the controlled drug involved:

(a) by proving that the mixture contains that quantity of the pure

form of the controlled drug; or

(b) if such a quantity is specified in Division 314 for the

controlled drug in a mixture--by proving that quantity of the

mixture.

(2) If an alleged offence against this Part involves a quantity of a

controlled precursor in a mixture of substances, the prosecution

may prove the quantity of the controlled precursor involved by

proving that the mixture contains that quantity of the pure form of

the controlled precursor.

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(3) If an alleged offence against this Part involves a quantity of a

border controlled drug in a mixture of substances, the prosecution

may prove the quantity of the border controlled drug involved:

(a) by proving that the mixture contains that quantity of the pure

form of the border controlled drug; or

(b) if such a quantity is specified in Division 314 for the border

controlled drug in a mixture--by proving that quantity of the

mixture.

(4) If an alleged offence against this Part involves a quantity of a

border controlled precursor in a mixture of substances, the

prosecution may prove the quantity of the border controlled

precursor involved by proving that the mixture contains that

quantity of the pure form of the border controlled precursor.

312.2 Working out quantities where different kinds of drugs, plants

or precursors are involved

(1) This section applies if a person is charged with a single offence

against this Part that involves:

(a) trafficking in more than one kind of controlled drug; or

(b) cultivating more than one kind of controlled plant; or

(d) manufacturing more than one kind of controlled drug; or

(e) pre-trafficking in more than one kind of controlled precursor;

(f) importing or exporting more than one kind of border

controlled drug or border controlled plant; or

(g) possessing more than one kind of unlawfully imported border

controlled drug or border controlled plant; or

(h) possessing more than one kind of border controlled drug or

border controlled plant reasonably suspected of having been

unlawfully imported; or

(i) importing or exporting more than one kind of border

controlled precursor; or

(j) supplying more than one kind of controlled drug to a child

for trafficking; or

(k) procuring a child to traffic in more than one kind of

controlled drug; or

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(l) procuring a child to pre-traffic in more than one kind of

controlled precursor; or

(m) procuring a child to import or export more than one kind of

border controlled drug or border controlled plant; or

(n) procuring a child to import or export more than one kind of

border controlled precursor.

(2) The following apply for the purposes of working out the quantity

of controlled drugs, controlled plants, controlled precursors, border

controlled drugs, border controlled plants or border controlled

precursors involved in the offence:

(a) the quantity of the drugs or plants is a trafficable quantity if

the sum of the requisite fractions of the trafficable quantity of

each of those drugs or plants is equal to or greater than one;

(b) the quantity of drugs, plants or precursors is a marketable

quantity if the sum of the requisite fractions of the

marketable quantity of each of those drugs, plants or

precursors is equal to or greater than one;

quantity if the sum of the requisite fractions of the

commercial quantity of each of those drugs, plants or

precursors is equal to or greater than one.

(3) For the purposes of this Part, requisite fraction means:

(a) in relation to a trafficable quantity of a controlled drug or

controlled plant, the actual quantity of the drug or plant

divided by the smallest trafficable quantity of the drug or

plant; or

(b) in relation to a marketable quantity of a controlled drug,

controlled plant, controlled precursor, border controlled drug,

border controlled plant or border controlled precursor, the

actual quantity of the drug, plant or precursor divided by the

smallest marketable quantity of the drug, plant or precursor;

controlled plant, controlled precursor, border controlled drug,

border controlled plant or border controlled precursor, the

actual quantity of the drug, plant or precursor divided by the

smallest commercial quantity of the drug, plant or precursor.

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(4) If this section applies in relation to a controlled drug in a mixture

of substances, the requisite fraction of a trafficable, marketable or

commercial quantity of the controlled drug may be calculated:

(a) on the basis of the quantity of the controlled drug in pure

form; or

(b) if such a quantity is specified in Division 314 for the

controlled drug in a mixture--on the basis of the quantity of

the mixture.

(5) If this section applies in relation to a border controlled drug in a

mixture of substances, the requisite fraction of a marketable or

commercial quantity of the border controlled drug may be

calculated:

(a) on the basis of the quantity of the border controlled drug in

pure form; or

(b) if such a quantity is specified in Division 314 for the border

controlled drug in a mixture--on the basis of the quantity of

the mixture.

Division 313--Defences and alternative verdicts

313.1 Defence--conduct justified or excused by or under a law of a

State or Territory

This Part, other than Division 307, does not apply in relation to

conduct if:

(a) a person engages in the conduct in a State or Territory; and

(b) the conduct is justified or excused by or under a law of that

State or Territory.

Note 1:

A defendant bears an evidential burden in relation to the matters in

this section (see subsection 13.3(3)).

Note 2:

A person is not criminally responsible for an offence against this Part

if the person's conduct is justified or excused by or under another

Commonwealth law (see section 10.5). In 2005, Commonwealth laws

that authorised importation, possession or use of controlled drugs,

controlled plants, controlled precursors, border controlled drugs,

border controlled plants or border controlled precursors included the

Customs Act 1901, the Narcotic Drugs Act 1967 and the Crimes Act

1914.

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313.2 Defence--reasonable belief that conduct is justified or excused

by or under a law

A person is not criminally responsible for an offence against this

Part if:

(a) at the time of the conduct constituting the offence, the person

was under a mistaken but reasonable belief that the conduct

was justified or excused by or under a law of the

Commonwealth or of a State or Territory; and

(b) had the conduct been so justified or excused--the conduct

would not have constituted the offence.

Note:

A defendant bears an evidential burden in relation to the matter in

paragraph (a) (see subsection 13.3(3)).

313.3 Alternative verdict--offence not proved

If:

(a) in a prosecution for an offence against this Part, the trier of

fact:

(i) is not satisfied that the defendant is guilty of the alleged

offence; but

(ii) is satisfied, beyond reasonable doubt, that the defendant

is guilty of another offence against this Part; and

(b) the maximum penalty for the other offence is not greater than

the maximum penalty for the alleged offence;

the trier of fact may find the defendant not guilty of the alleged

offence but guilty of the other offence, so long as the defendant has

been accorded procedural fairness in relation to that finding of

guilt.

313.4 Alternative verdict--mistake as to quantity of drug, plant or

precursor

(1) This section applies if:

(a) an offence against this Part (other than Division 307) is

prosecuted; and

(b) the offence involves a commercial quantity or a marketable

quantity of a controlled drug, controlled plant, controlled

precursor, border controlled drug, border controlled plant or

border controlled precursor; and

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defendant guilty of the offence.

(2) If:

(a) the defendant proves that, at the time of the alleged offence,

he or she was under a mistaken belief about the quantity of

the drug, plant or precursor; and

(b) if the mistaken belief had been correct, the defendant would

have been guilty of another offence against this Part; and

maximum penalty for the alleged offence;

the trier of fact may find the defendant:

(d) not guilty of the alleged offence; but

(e) guilty of the other offence.

Note:

A defendant bears a legal burden in relation to the matter in

paragraph (2)(a) (see section 13.4).

313.5 Alternative verdict--mistake as to identity of drug, plant or

precursor

(1) This section applies if:

(a) an offence against this Part (other than Division 307) is

prosecuted; and

(b) the offence involves a controlled drug, controlled plant,

controlled precursor, border controlled drug, border

controlled plant or border controlled precursor; and

defendant guilty of the offence.

(2) If:

(a) the defendant proves that, at the time of the alleged offence,

he or she was under a mistaken belief about the identity of

the drug, plant or precursor; and

(b) if the mistaken belief had been correct, the defendant would

have been guilty of another offence against this Part; and

maximum penalty for the alleged offence;

the trier of fact may find the defendant:

(d) not guilty of the alleged offence; but

(e) guilty of the other offence.

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Note:

A defendant bears a legal burden in relation to the matter in

paragraph (2)(a) (see section 13.4).

Division 314--Drugs, plants, precursors and quantities

314.1 Controlled drugs

(1) The following table lists controlled drugs and sets out quantities:

Controlled drugs and quantities

Controlled drug

Trafficable

quantity

(grams)

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

Amphetamine

2.0

250.0

0.75

Cannabis (in any form,

including flowering or

fruiting tops, leaves, seeds

or stalks, but not including

Cannabis resin or Cannabis

fibre)

250.0

25,000.0

125.0

Cannabis resin

20.0

25,000.0

125.0

Cocaine

2.0

250.0

2.0

Gammabutyrolactone

(GBL)

0.5

250.0

1.0

4-Hydroxybutanoic acid

(GHB)

0.5

250.0

1.0

Heroin (diacetylmorphine)

2.0

250.0

1.5

Lysergide (LSD)

0.002

0.05

0.002

Methamphetamine

2.0

250.0

0.75

3,4-Methylenedioxyampheta

mine (MDA)

0.5

100.0

0.75

3,4-Methylenedioxymetham

phetamine (MDMA)

0.5

100.0

0.5

Opium

20.0

10,000.0

20.0

Psilocine

2.0

1,000.0

2.0

Psilocybine

2.0

1,000.0

2.0

Tetrahydrocannabinol

(THC)

2.0

1,000.0

5.0

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(2) A substance is a controlled drug if the substance (the drug

analogue) is, in relation to a controlled drug listed in

subsection (1) (or a stereoisomer, a structural isomer (with the

same constituent groups) or an alkaloid of such a controlled drug):

(a) a stereoisomer; or

(b) a structural isomer having the same constituent groups; or

(d) a structural modification obtained by the addition of one or

more of the following groups:

(i) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or

dialkylamino groups with up to 6 carbon atoms in any

alkyl residue;

(ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon

atoms in the group, where the group is attached to

oxygen (for example, an ester or an ether group),

nitrogen, sulphur or carbon;

(iii) halogen, hydroxy, nitro or amino groups; or

(e) a structural modification obtained in one or more of the

following ways:

(i) by the replacement of up to 2 carbocyclic or

heterocyclic ring structures with different carbocyclic or

heterocyclic ring structures;

(ii) by the addition of hydrogen atoms to one or more

unsaturated bonds;

(iii) by the replacement of one or more of the groups

specified in paragraph (d) with another such group or

groups;

(iv) by the conversion of a carboxyl or an ester group into an

amide group; or

(f) otherwise a homologue, analogue, chemical derivative or

substance substantially similar in chemical structure;

however obtained, except where the drug analogue is separately

listed in subsection (1).

(3) The trafficable quantity for a drug analogue described in

subsection (2) is:

(a) unless paragraph (b) applies--the trafficable quantity set out

in the table in subsection (1) for the controlled drug to the

which the drug analogue relates (whether directly or

indirectly); or

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(b) if the drug analogue relates to more than one controlled drug

listed in the table in subsection (1)--the smallest trafficable

quantity set out in the table in subsection (1) for any of those

controlled drugs.

(4) The marketable quantity for a drug analogue described in

subsection (2) is:

(a) unless paragraph (b) applies--the marketable quantity set out

in the table in subsection (1) for the controlled drug to which

the drug analogue relates (whether directly or indirectly); or

(b) if the drug analogue relates to more than one controlled drug

listed in the table in subsection (1)--the smallest marketable

quantity set out in the table in subsection (1) for any of those

controlled drugs.

(5) The commercial quantity for a drug analogue described in

subsection (2) is:

(a) unless paragraph (b) applies--the commercial quantity set

out in the table in subsection (1) for the controlled drug to

which the drug analogue relates (whether directly or

indirectly); or

(b) if the drug analogue relates to more than one controlled drug

listed in the table in subsection (1)--the smallest commercial

quantity set out in the table in subsection (1) for any of those

controlled drugs.

314.2 Controlled plants

The following table lists controlled plants and sets out quantities:

Controlled plants and quantities

Controlled plant

Trafficable

quantity

Marketable

quantity

Commercial

quantity

Any plant of the genus

Cannabis

250 g or

10 plants

25 kg or

100 plants

250 kg or

1,000 plants

314.3 Controlled precursors

(1) The following table lists controlled precursors and sets out

quantities:

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Controlled precursors and quantities

Controlled precursor

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

Ephedrine

400.0

1.2

Ergometrine

0.15

0.006

Ergotamine

0.25

0.01

Isosafrole

290.0

1.45

Lysergic acid

0.075

0.003

3,4-Methylenedioxyphenylacetic acid

300.0

1.5

3,4-Methylenedioxyphenyl-2-propanone

150.0

0.75

Phenylacetic acid

1,350.0

4.05

Phenyl-2-propanone

675.0

2.03

Piperonal

320.0

1.6

Pseudoephedrine

400.0

1.2

Safrole

570.0

2.85

(2) A substance is a controlled precursor if the substance is a salt or

ester of a precursor listed in the table in subsection (1).

314.4 Border controlled drugs

(1) The following table lists border controlled drugs and sets out

quantities:

Border controlled drugs and quantities

Border controlled drugs

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

Acetorphine

2.0

Acetyl-alpha-methylfentanyl

0.005

Acetylcodeine

2.0

Acetyldihydrocodeine

2.0

Acetylmethadol

2.0

Allylprodine

2.0

Alphacetylmethadol

10.0

Alphameprodine

0.2

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Border controlled drugs and quantities

Border controlled drugs

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

Alphamethadol

0.2

alpha-Methylfentanyl

0.005

alpha-Methylthiofentanyl

0.005

Alphaprodine

25.0

Amphecloral

2.0

3-(2-Aminopropyl)indole

(alpha-methyltryptamine (AMT))

2.0

Amphetamine

2.0

0.75

Anileridine

25.0

Barbiturates

50.0

5.0

Benzethidine

10.0

Benzoylecgonine

2.0

Benzylmorphine

5.0

Betacetylmethadol

5.0

beta-Hydroxyfentanyl

0.005

beta-Hydroxy-3-methylfentanyl

0.005

Betameprodine

5.0

Betamethadol

5.0

Betaprodine

5.0

Bezitramide

5.0

4-Bromo-2,5-dimethoxyamphetamine

0.5

Bufotenine

2.0

Cannabinoids (other than a Cannabinoid of a

kind that can be obtained from a plant that is

not a Cannabis plant)

2.0

Cannabis (in any form, including flowering

or fruiting tops, leaves, seeds or stalks, but

not including Cannabis resin or Cannabis

fibre)

25,000.0

100.0

Cannabis resin

20.0

50.0

Chlorphentermine

2.0

Clonitazene

5.0

Serious drug offences Schedule 1

Serious drug offences Part 1

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 73

Border controlled drugs and quantities

Border controlled drugs

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

Cocaine

2.0

Codeine

10.0

Codeine-N-oxide

10.0

Codoxime

10.0

Desomorphine

2.0

Dexamphetamine

2.0

Dextromoramide

2.0

2,5-Dimethoxy-4-n-propylthiophenethylami

ne (2C-T-7)

0.5

2,5-Dimethoxy-4-ethylthiophenethylamine

(2C-T-2)

0.5

2,5-Dimethoxy-4-iodophenethylamine (2C-I)

0.5

Diampromide

5.0

Diethylpropion

5.0

Diethylthiambutene

5.0

N,N-Diethyltryptamine

2.0

Difenoxin

2.0

Dihydrocodeine

10.0

Dihydromorphine

10.0

Dimenoxadol

10.0

Dimepheptanol

10.0

2,5-Dimethoxy-4-methylamphetamine

2.0

0.75

1-Dimethylamino-1,2-diphenylethane

5.0

Dimethylthiambutene

20.0

N,N-Dimethyltryptamine

2.0

Dioxaphetyl butyrate

2.0

Diphenoxylate

2.0

Dipipanone

10.0

Drotebanol

2.0

Ecgonine

10.0

Ethchlorvynol

50.0

Schedule 1 Serious drug offences

Part 1 Serious drug offences

74 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Border controlled drugs and quantities

Border controlled drugs

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

Ethinamate

50.0

Ethylmethylthiambutene

10.0

Ethylmorphine

2.0

Etonitazene

5.0

Etorphine

5.0

Etoxeridine

5.0

Fentanyl

0.005

Furethidine

1.0

Gammabutyrolactone (GBL)

2.0

1.0

Glutethimide

50.0

Harmaline

2.0

5.0

Harmine

2.0

5.0

Heroin (diacetylmorphine)

2.0

1.5

Hydrocodone

2.0

Hydromorphinol

2.0

Hydromorphone

2.0

Hydroxyamphetamine

2.0

4-Hydroxybutanoic acid (GHB)

2.0

1.0

Hydroxypethidine

5.0

Isomethadone

2.0

Ketobemidone

2.0

Levophenacylmorphan

2.0

Levomethorphan, but not including

dextromethorphan

2.0

Levorphanol, but not including dextrorphan

1.0

Lysergamide

0.1

0.01

Lysergide (LSD)

0.002

Meprobamate

50.0

Mescaline

7.5

Metazocine

7.0

Methadone

2.0

Serious drug offences Schedule 1

Serious drug offences Part 1

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 75

Border controlled drugs and quantities

Border controlled drugs

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

Methaqualone

50.0

5.0

Methcathinone

Methorphan, but not including

dextromethorphan

2.0

5-Methoxy-alpha-methyltryptamine

(5-MeO-AMT)

2.0

5-Methoxy-N,N-diisopropyltryptamine

(5-MeO-DiPT)

2.0

Methamphetamine

2.0

0.75

100

3,4-Methylenedioxyamphetamine (MDA)

0.5

0.75

101

3,4-Methylenedioxymethamphetamine

(MDMA)

0.5

102

Methyldesorphine

2.0

103

Methyldihydromorphine

2.0

104

3-Methylfentanyl

0.005

105

Methylphenidate

2.0

106

1-Methyl-4-phenyl-4-propionoxypiperidine

(MPPP)

2.0

107

3-Methylthiofentanyl

0.005

108

Methyprylon

50.0

109

Metopon

2.0

110

Monoacetylmorphines

2.0

111

Moramide

2.0

112

Morphan, but not including dextrorphan

2.0

113

Morpheridine

2.0

114

Morphine

2.0

1.5

115

Morphine-N-oxide

2.0

116

Myrophine

20.0

117

Nicocodine

2.0

118

Nicodicodine

2.0

119

Nicomorphine

2.0

120

Noracymethadol

2.0

Schedule 1 Serious drug offences

Part 1 Serious drug offences

76 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Border controlled drugs and quantities

Border controlled drugs

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

121

Norcodeine

2.0

122

Norlevorphanol

2.0

123

Normethadone

5.0

124

Normorphine

20.0

125

Norpipanone

10.0

126

Opium

20.0

127

Oxycodone

5.0

128

Oxymorphone

2.0

129

para-Fluorofentanyl

0.005

130

Pentazocine

20.0

131

Pethidine

10.0

132

Phenadoxone

10.0

133

Phenampromide

10.0

134

Phenazocine

1.0

135

Phencyclidine

2.0

136

Phendimetrazine

5.0

137

Phenmetrazine

5.0

138

Phenomorphan

5.0

139

Phenoperidine

1.0

140

Phentermine

5.0

141

1-Phenylethyl-4-phenyl-4-acetoxypiperidine

(PEPAP)

2.0

142

Pholcodine

5.0

143

Piminodine

10.0

144

Pipradrol

1.0

145

Piritramide

1.0

146

Proheptazine

1.0

147

Properidine

25.0

148

Propiram

10.0

149

Psilocine

0.1

150

Psilocybine

0.1

Serious drug offences Schedule 1

Serious drug offences Part 1

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 77

Border controlled drugs and quantities

Border controlled drugs

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

151

Tetrahydrocannabinols

2.0

5.0

152

Thebacon

2.0

153

Thebaine

2.0

154

Thiofentanyl

0.005

155

Trimeperidine

10.0

(2) A substance is also a border controlled drug if the substance (the

drug analogue) is, in relation to a border controlled drug listed in

subsection (1) (or a stereoisomer, a structural isomer (with the

same constituent groups) or an alkaloid of such a border controlled

drug):

(a) a stereoisomer; or

(b) a structural isomer having the same constituent groups; or

(d) a structural modification obtained by the addition of one or

more of the following groups:

(i) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or

dialkylamino groups with up to 6 carbon atoms in any

alkyl residue;

(ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon

atoms in the group, where the group is attached to

oxygen (for example, an ester or an ether group),

nitrogen, sulphur or carbon;

(iii) halogen, hydroxy, nitro or amino groups; or

(e) a structural modification obtained in one or more of the

following ways:

(i) by the replacement of up to 2 carbocyclic or

heterocyclic ring structures with different carbocyclic or

heterocyclic ring structures;

(ii) by the addition of hydrogen atoms to one or more

unsaturated bonds;

(iii) by the replacement of one or more of the groups

specified in paragraph (d) with another such group or

groups;

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78 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

(iv) by the conversion of a carboxyl or an ester group into an

amide group; or

(f) otherwise a homologue, analogue, chemical derivative or

substance substantially similar in chemical structure;

however obtained, except where the drug analogue is separately

listed in subsection (1).

(3) The marketable quantity for a drug analogue described in

subsection (2) is:

(a) unless paragraph (b) applies--the marketable quantity

specified in the table in subsection (1) for the border

controlled drug to which the drug analogue relates (whether

directly or indirectly); or

(b) if the drug analogue relates to more than one border

controlled drug listed in the table in subsection (1)--the

smallest marketable quantity specified in the table in

subsection (1) for any of those border controlled drugs.

(4) The commercial quantity for a drug analogue described in

subsection (2) is:

(a) unless paragraph (b) applies--the commercial quantity

specified in the table in subsection (1) for the border

controlled drug to which the drug analogue relates (whether

directly or indirectly); or

(b) if the drug analogue relates to more than one border

controlled drug listed in the table in subsection (1)--the

smallest commercial quantity specified in the table in

subsection (1) for any of those border controlled drugs.

314.5 Border controlled plants

The following table lists border controlled plants and sets out

quantities:

Border controlled plants and quantities

Border controlled plants

Marketable

quantity

Commercial

quantity

Any plant of the genus Cannabis

25 kg or

100 plants

250 kg or

1,000 plants

Serious drug offences Schedule 1

Serious drug offences Part 1

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 79

Border controlled plants and quantities

Border controlled plants

Marketable

quantity

Commercial

quantity

Any plant of the genus Erythroxylon (also

known as Erythroxylum) from which

cocaine can be extracted either directly or by

chemical transformation

80 kg

Any plant of the genus Lophophora

Any plant of the species Papaver bracteatum

10 kg

Any plant of the species Papaver

somniferum

10 kg

Any plant of the species Piptagenia peregrine

Any plant of the species Psilocybe

314.6 Border controlled precursors

(1) The following table lists border controlled precursors and sets out

quantities:

Border controlled precursors and quantities

Border controlled precursors

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

N-Acetylanthranilic acid

Any plant of the species Ephedra

Ephedrine

3.2

1.2

Ergometrine

0.006

Ergotamine

0.01

Isosafrole

1.45

Lysergic acid

0.003

3,4-Methylenedioxyphenyl-2-propanone

0.75

Phenylacetic acid

10.8

4.05

Phenylpropanolamine

Phenyl-2-propanone

5.4

2.03

Piperonal

1.6

Pseudoephedrine

3.2

1.2

Schedule 1 Serious drug offences

Part 1 Serious drug offences

80 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Border controlled precursors and quantities

Border controlled precursors

Marketable

quantity

(grams)

Commercial

quantity

(kilograms)

Safrole

2.85

(2) A substance is a border controlled precursor if the substance is a

salt or ester of a precursor listed in the table in subsection (1).

(3) A substance is a border controlled precursor if the substance is a

chemical or compound, other than a chemical or compound that is

listed in a table in this Division, that, in the manufacture by a

chemical process of a chemical or compound referred to in the

table in subsection (1), is an immediate precursor of that chemical

or compound.

Serious drug offences Schedule 1

Consequential and transitional provisions Part 2

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 81

Part 2--Consequential and transitional provisions

Crimes Act 1914

2 Subsection 3(1)

Insert:

controlled substance means:

(a) a controlled drug or border controlled drug within the

meaning of Part 9.1 of the Criminal Code; or

(b) a controlled plant or border controlled plant within the

meaning of Part 9.1 of the Criminal Code; or

the meaning of Part 9.1 of the Criminal Code.

3 Paragraph 15HB(a)

Omit "illegal drug dealings", substitute "controlled substances".

4 Paragraph 22(1)(a)

Omit "narcotics", substitute "drug".

5 Subsection 22(7) (definition of narcotic substance)

Repeal the definition.

6 Subsection 22(7) (definition of possession)

Repeal the definition.

7 Subsection 22(7) (definition of production)

Repeal the definition.

8 Subsection 22(7)

Insert:

serious drug offence means an offence:

(a) involving, or relating to, controlled substances; and

(b) punishable by a maximum penalty of imprisonment for 2

years or more.

Schedule 1 Serious drug offences

Part 2 Consequential and transitional provisions

82 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

9 Subsection 22(7) (definition of serious narcotics offence)

Repeal the definition.

10 Subsection 22(7) (definition of trafficable quantity)

Repeal the definition.

11 Paragraph 22A(1)(a)

Omit "narcotics", substitute "drug".

12 Subsection 22A(2)

Insert:

serious drug offence has the same meaning as in section 22.

13 Subsection 22A(2) (definition of serious narcotics offence)

Repeal the definition.

Customs Act 1901

14 Subsection 4(1) (definition of Cannabinoids)

Repeal the definition.

15 Subsection 4(1) (definition of Cannabis)

Repeal the definition.

16 Subsection 4(1) (definition of Cannabis fibre)

Repeal the definition.

17 Subsection 4(1) (definition of Cannabis plant)

Repeal the definition.

18 Subsection 4(1) (definition of Cannabis resin)

Repeal the definition.

19 Subsection 4(1) (definition of Commercial quantity)

Repeal the definition.

20 Subsection 4(1)

Serious drug offences Schedule 1

Consequential and transitional provisions Part 2

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 83

Insert:

border controlled drug has the same meaning as in Part 9.1 of the

Criminal Code.

21 Subsection 4(1)

Insert:

border controlled plant has the same meaning as in Part 9.1 of the

Criminal Code.

22 Subsection 4(1) (definition of Narcotic substance)

Repeal the definition, substitute:

narcotic substance means a border controlled drug or a border

controlled plant.

23 Subsection 4(1) (definition of Suspicious substance)

Repeal the definition, substitute:

suspicious substance means a narcotic substance that would, or

would be likely to, assist in the proof of the commission by any

person of an offence against Division 307 of the Criminal Code

that is punishable by imprisonment for a period of 7 years or more.

24 Subsection 4(1) (definition of Trafficable quantity)

Repeal the definition.

25 Subsection 4(4)

Repeal the subsection.

26 Before subsection 4(5)

Insert:

(4A) To avoid doubt, if narcotic goods are:

(a) imported into Australia in breach of a prohibition under

section 50; or

(b) exported from Australia in breach of a prohibition under

section 112;

the goods are imported or exported, as the case may be, in

contravention of this Act.

Schedule 1 Serious drug offences

Part 2 Consequential and transitional provisions

84 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Note:

Most offences dealing with the importation and exportation of

narcotic goods are located in Part 9.1 of the Criminal Code.

27 Section 4B (after paragraph (b) of the definition of

Customs-related law)

Insert:

(ba) Division 307 of the Criminal Code; or

28 At the end of subsection 50(7)

Add:

Penalty: Imprisonment for 2 years or 20 penalty units, or both.

29 Subsection 50(8)

Repeal the subsection.

30 At the end of Division 1 of Part IV

Add:

51A Certain controlled substances taken to be prohibited imports

(1) This section applies if a substance or plant is determined, under

section 301.8 or 301.9 of the Criminal Code, to be a border

controlled drug, a border controlled plant or a border controlled

precursor.

(2) For the period during which the determination has effect,

Schedule 4 to the Customs (Prohibited Imports) Regulations 1956

has effect as if the substance or plant were described as a drug in

that Schedule.

31 At the end of subsection 112(2BC)

Add:

Penalty: Imprisonment for 2 years or 20 penalty units, or both.

32 Subsection 112(2BD)

Repeal the subsection.

33 At the end of Division 1 of Part VI

Add:

Serious drug offences Schedule 1

Consequential and transitional provisions Part 2

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 85

112A Certain controlled substances taken to be prohibited exports

(1) Subsection (2) applies if a substance or plant is determined, under

section 301.8 of the Criminal Code, to be a border controlled drug

or a border controlled plant.

(2) For the period during which the determination has effect, Part 1 of

Schedule 8 to the Customs (Prohibited Exports) Regulations 1958

has effect as if the substance or plant were described as a drug in

that Part.

(3) Subsection (4) applies if a substance is determined, under

section 301.9 of the Criminal Code, to be a border controlled

precursor.

(4) For the period during which the determination has effect, Part 1 of

Schedule 9 to the Customs (Prohibited Exports) Regulations 1958

has effect as if the substance were described as a precursor

substance in that Part.

34 Subsection 183UA(1) (at the end of the definition of

offence)

Add:

; or (c) an offence against Division 307 of the Criminal Code.

35 After subsection 183UA(2)

Insert:

(2A) For the purposes of this Part, an offence against section 6 of the

Crimes Act 1914 that relates to an offence against Division 307 of

the Criminal Code is taken to be an offence against that Division.

36 Subsection 183UA(3)

Omit all the words after "purposes of", substitute:

this Part:

(a) an offence against section 141.1, 142.1, 142.2 or 149.1 of the

Criminal Code that relates to this Act is taken to be an

offence against this Act; and

(b) an offence against section 141.1, 142.1, 142.2 or 149.1 of the

Criminal Code that relates to Division 307 of the Criminal

Code is taken to be an offence against that Division.

Schedule 1 Serious drug offences

Part 2 Consequential and transitional provisions

86 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

37 Subsection 184A(2)

Omit all the words after "make the request", substitute:

if:

(a) the master's ship is a foreign ship; and

(b) the master's ship is on the landward side of the outer edge of

Australia's territorial sea; and

(i) the commander makes the request for the purposes of

this Act or an Act prescribed by the regulations

consistently with UNCLOS, or for the purposes of

determining whether a contravention, or an attempted

contravention, in Australia of Division 307 of the

Criminal Code is occurring; or

(ii) the commander reasonably suspects that the master's

ship is, will be or has been involved in a contravention,

or an attempted contravention, in Australia of

Division 307 of the Criminal Code.

38 Subparagraph 184A(4)(c)(ii)

After "this Act", insert ", Division 307 of the Criminal Code".

39 Paragraph 184A(5)(c)

After "this Act", insert ", Division 307 of the Criminal Code".

40 At the end of paragraph 184D(3)(b)

Add "or Division 307 of the Criminal Code".

41 Subparagraph 185(2)(c)(iii)

After "this Act", insert "or Division 307 of the Criminal Code".

42 Subparagraph 185(2)(d)(i)

After "this Act", insert ", Division 307 of the Criminal Code".

43 Sub-subparagraph 185(2)(d)(ii)(A)

After "this Act", insert ", Division 307 of the Criminal Code".

44 Subparagraph 185(2)(d)(iii)

After "this Act", insert "or Division 307 of the Criminal Code".

Serious drug offences Schedule 1

Consequential and transitional provisions Part 2

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 87

45 Paragraph 185(3)(a)

After "this Act", insert ", Division 307 of the Criminal Code".

46 Subparagraph 185(3)(c)(i)

After "this Act", insert ", Division 307 of the Criminal Code".

47 At the end of paragraph 185(3)(d)

Add "or Division 307 of the Criminal Code".

48 Subsection 185B(1)

After "this Act", insert ", Division 307 of the Criminal Code".

49 Paragraph 185B(2)(b)

After "this Act", insert ", Division 307 of the Criminal Code".

50 Subparagraph 185B(2)(c)(i)

After "this Act", insert ", Division 307 of the Criminal Code".

51 Paragraph 210(1)(a)

Omit ", or attempting to commit, or of being concerned in the

commission of, any", substitute "an".

52 Paragraph 210(1)(b)

Omit "against section 233B or".

53 At the end of subsection 210(1)

Add:

; or (c) committing an offence against Division 307 of the Criminal

Code; or

(d) committing an offence against section 308.2 of the Criminal

Code where the substance involved in the offence is

reasonably suspected of:

(i) having been imported into Australia in contravention of

this Act; or

(ii) being intended for export from Australia in

contravention of this Act.

54 At the end of Part XII

Schedule 1 Serious drug offences

Part 2 Consequential and transitional provisions

88 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Add:

Division 3--Evidence

227AA Evidence may be used in prosecutions etc.

To avoid doubt, if, when exercising powers under this Act, an

officer obtains evidence of the commission of an offence against

Part 9.1 of the Criminal Code, then that evidence may be used, or

given to another body for use, in:

(a) investigating the offence; or

(b) proceedings for the prosecution for the offence.

55 At the end of subsection 229A(2)

Add:

Note:

Goods are imported or exported in contravention of this Act if they are

imported or exported in breach of a prohibition under this Act: see

subsection 4(4A).

56 Subsection 231(1)

Omit all the words after "punishable", substitute "upon conviction by

imprisonment for a period not exceeding 2 years.".

57 Subsection 231(2)

Repeal the subsection, substitute:

(2) This section does not apply to, or in relation to, narcotic goods.

58 Subsection 231(3)

Omit "to which paragraph (1)(d) applies".

59 At the end of section 231

Add:

Note:

Most offences dealing with the importation and exportation of

narcotic goods are located in Part 9.1 of the Criminal Code.

60 At the end of subsection 233A(1A)

Add:

Note:

Most offences dealing with the importation and exportation of

narcotic goods are located in Part 9.1 of the Criminal Code.

Serious drug offences Schedule 1

Consequential and transitional provisions Part 2

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 89

Note:

The heading to section 233A is altered by omitting "--goods that are not narcotic

goods".

61 Sections 233AC and 233B

Repeal the sections.

62 At the end of subsection 233BA(1)

Add "or Part 9.1 of the Criminal Code".

63 Subsection 233BA(2)

Omit "section 233B or 233BAA", substitute "section 233BAA or

Part 9.1 of the Criminal Code".

64 Section 235

Repeal the section.

65 At the end of subsection 243A(3)

Add:

Note:

Goods are imported or exported in contravention of this Act if they are

imported or exported in breach of a prohibition under this Act: see

subsection 4(4A).

66 Schedule VI

Repeal the Schedule.

Proceeds of Crime Act 2002

67 Section 338 (after subparagraph (a)(i) of the definition of

serious offence)

Insert:

(ia) unlawful conduct constituted by or relating to a breach

of Part 9.1 of the Criminal Code (serious drug

offences); or

Surveillance Devices Act 2004

68 Subparagraph 30(1)(a)(i)

Repeal the subparagraph.

Schedule 1 Serious drug offences

Part 2 Consequential and transitional provisions

90 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

69 Subparagraph 30(1)(a)(iv)

After "1990", insert " or an offence against Part 9.1 of the Criminal

Code (other than section 308.1 or 308.2)".

Telecommunications (Interception) Act 1979

70 Subsection 5(1) (paragraph (c) of the definition of class 1

offence)

Repeal the paragraph, substitute:

71 Subsection 5(1) (definition of narcotics offence)

Repeal the definition.

72 Subsection 5(1) (definition of prescribed substance)

Repeal the definition, substitute:

prescribed substance means:

(a) a substance that is a narcotic drug or psychotropic substance

for the purposes of the Crimes (Traffic in Narcotic Drugs and

Psychotropic Substances) Act 1990; or

(b) a controlled drug or border controlled drug within the

meaning of Part 9.1 of the Criminal Code; or

(d) a controlled precursor or border controlled precursor within

the meaning of Part 9.1 of the Criminal Code.

73 After subsection 5D(5)

Insert:

Serious drug offences

(5A) An offence is also a class 2 offence if it is an offence against

Part 9.1 of the Criminal Code (other than Division 307 or

section 308.1 or 308.2).

74 Paragraph 6K(a)

Omit "a narcotics offence; and", substitute:

Serious drug offences Schedule 1

Consequential and transitional provisions Part 2

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 91

an offence against:

(i) subsection 50(7) or subsection 112(2BC) of the

Customs Act 1901; or

(ii) Division 307 of the Criminal Code; and

75 Application of amendments to conduct before and after

commencement

(1)

In this item:

earlier conduct means conduct engaged in before the commencement

of this Schedule.

engage in conduct has the same meaning as in the Criminal Code.

later conduct means conduct engaged in after the commencement of

this Schedule.

new law means Part 9.1 of the Criminal Code as in force from time to

time.

old law means:

(a) the provisions of Division 2 of Part XIII of the Customs Act

1901 as in force from time to time before the commencement

of this Schedule to the extent to which those provisions

related to narcotic substances; and

(b) any law related to those provisions.

(2)

The amendments made by this Schedule do not apply in relation to

earlier conduct.

(3)

Despite the amendments made by this Schedule, the old law continues

to apply in relation to later conduct if:

(a) the later conduct is related to earlier conduct; and

(b) because of that relationship, the later conduct would have

constituted a physical element (or a part of a physical

element) of an offence against the old law, had the old law

remained in force.

(4)

If later conduct is alleged against a person in a prosecution for an

offence against the old law, that conduct must not be alleged against the

person in a prosecution for:

(a) an offence against the new law; or

(b) an offence related to an offence against the new law.

Schedule 1 Serious drug offences

Part 2 Consequential and transitional provisions

92 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

76 Transitional regulations

(1)

The regulations may make provision for matters of a transitional nature

(including any saving or application provisions) arising from the

amendments or repeals made by this Schedule.

(2)

The Governor-General may make regulations for the purposes of

subitem (1).

Involvement of children in armed conflict Schedule 2

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 93

Schedule 2--Involvement of children in armed

conflict

Criminal Code Act 1995

1 Paragraph 268.68(1)(a) of the Criminal Code

After "hostilities", insert "as members of the national armed forces".

Note:

The following heading to subsection 268.68(1) of the Criminal Code is inserted

"National armed forces".

2 Subsection 268.68(3) of the Criminal Code (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 10 years.

3 At the end of section 268.68 of the Criminal Code

Add:

Other armed forces and groups

(4) A person (the perpetrator) commits an offence if:

(a) the perpetrator uses one or more persons to participate

actively in hostilities other than as members of the national

armed forces; and

(b) the person or persons are under the age of 18 years; and

associated with, an international armed conflict.

Penalty: Imprisonment for 17 years.

(5) A person (the perpetrator) commits an offence if:

(a) the perpetrator conscripts one or more persons into an armed

force or group other than the national armed forces; and

(b) the person or persons are under the age of 18 years; and

associated with, an international armed conflict.

Penalty: Imprisonment for 15 years.

Schedule 2 Involvement of children in armed conflict

94 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

(6) A person (the perpetrator) commits an offence if:

(a) the perpetrator enlists one or more persons into an armed

force or group other than the national armed forces; and

(b) the person or persons are under the age of 18 years; and

associated with, an international armed conflict.

Penalty for a contravention of this subsection: Imprisonment for 10

years.

4 Paragraph 268.88(1)(a) of the Criminal Code

After "hostilities", insert "as members of the national armed forces".

Note:

The following heading to subsection 268.88(1) of the Criminal Code is inserted

"National armed forces".

5 Paragraph 268.88(1)(c) of the Criminal Code

Repeal the paragraph.

6 Paragraph 268.88(2)(a) of the Criminal Code

Omit "an armed force or group", substitute "the national armed forces".

7 Paragraph 268.88(2)(c) of the Criminal Code

Repeal the paragraph.

8 Paragraph 268.88(3)(a) of the Criminal Code

Omit "an armed force or group", substitute "the national armed forces".

9 Paragraph 268.88(3)(c) of the Criminal Code

Repeal the paragraph.

10 Subsection 268.88(3) of the Criminal Code (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 10 years.

11 At the end of section 268.88 of the Criminal Code

Add:

Involvement of children in armed conflict Schedule 2

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 95

Other armed forces and groups

(4) A person (the perpetrator) commits an offence if:

(a) the perpetrator uses one or more persons to participate

actively in hostilities other than as members of the national

armed forces; and

(b) the person or persons are under the age of 18 years; and

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 17 years.

(5) A person (the perpetrator) commits an offence if:

(a) the perpetrator conscripts one or more persons into an armed

force or group other than the national armed forces; and

(b) the person or persons are under the age of 18 years; and

associated with, an armed conflict that is not an international

armed conflict.

Penalty: Imprisonment for 15 years.

(6) A person (the perpetrator) commits an offence if:

(a) the perpetrator enlists one or more persons into an armed

force or group other than the national armed forces; and

(b) the person or persons are under the age of 18 years; and

associated with, an armed conflict that is not an international

armed conflict.

Penalty for a contravention of this subsection: Imprisonment for 10

years.

Schedule 3 Proceeds of crime orders

96 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Schedule 3--Proceeds of crime orders

Proceeds of Crime Act 2002

1 After paragraph 17(2)(a)

Insert:

(aa) all or specified

bankruptcy property of the suspect;

2 After paragraph 17(2)(b)

Insert:

(ba) all bankruptcy property of the suspect other than specified

bankruptcy property;

3 Paragraph 17(3)(b)

After "other than the suspect", insert "but not to restrain

bankruptcy

property of the suspect".

4 After paragraph 18(2)(a)

Insert:

(aa) all or specified

bankruptcy property of the suspect;

5 After paragraph 18(2)(b)

Insert:

(ba) all bankruptcy property of the suspect other than specified

bankruptcy property;

6 Paragraph 18(3)(b)

After "other than the suspect", insert "but not to restrain

bankruptcy

property of the suspect".

7 After paragraph 20(2)(a)

Insert:

(aa) all or specified

bankruptcy property of the suspect;

8 After paragraph 20(2)(b)

Insert:

Proceeds of crime orders Schedule 3

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 97

(ba) all bankruptcy property of the suspect other than specified

bankruptcy property;

9 Paragraph 20(3)(d)

After "other than the suspect", insert "but not to restrain

bankruptcy

property of the suspect".

10 Section 338

Insert:

bankruptcy property of a person means property that:

(a) is vested in another person under subsection 58(1) of the

Bankruptcy Act 1966 but immediately before being so vested

was:

(i) property of the person; or

(ii) subject to the

effective control of the person; or

(b) is vested in another person under subsection 249(1) of the

Bankruptcy Act 1966 but immediately before being so vested

was:

(i) property of the person's estate; or

(ii) subject to the effective control of the executors of the

person's estate.

11 Application

The amendments made by this Part apply in relation to bankruptcy

property whether vested in a person under the Bankruptcy Act 1966

before, on or after the commencement of this item.

Schedule 4 Australian Federal Police Act 1979

98 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Schedule 4--Australian Federal Police Act

1979

Australian Federal Police Act 1979

1 Subsection 4(1)

Insert:

intelligence or security agency means an authority or person

responsible for intelligence gathering for, or the security of, a

country or a part of a country.

2 Subsection 4(1)

Insert:

law enforcement agency means an authority or person responsible

for the enforcement of laws.

3 Subsection 4(1)

Insert:

police support services means services related to:

(a) the provision of police services by an Australian or foreign

law enforcement agency; or

(b) the provision of services by an Australian or foreign

intelligence or security agency; or

regulatory agency.

4 Subsection 4(1)

Insert:

regulatory agency means an authority or person who performs

regulatory functions for a country or part of a country.

5 After paragraph 8(1)(be)

Insert:

Australian Federal Police Act 1979 Schedule 4

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 99

(bf) the provision of police services and police support services

for the purposes of assisting, or cooperating with, an

Australian or foreign:

(i) law enforcement agency; or

(ii) intelligence or security agency; or

(iii) government regulatory agency; and

(bg) the provision of police services and police support services in

relation to establishing, developing and monitoring peace,

stability and security in foreign countries; and

6 Subsection 60A(2A)

Repeal the subsection, substitute:

(2A) This section does not apply to:

(a) a divulgence or communication of prescribed information

that is authorised by the Commissioner under

subsection (2B); or

(b) a divulgence or communication of personal information that

is authorised by the Commissioner under subsection (2C).

7 After subsection 60A(2B)

Insert:

(2C) The Commissioner may authorise a person to whom this section

applies to divulge or communicate an individual's personal

information if the individual requests, or gives consent to, that

divulgence or communication.

(2D) Subsection (2C) does not require the Commissioner to authorise a

divulgence or communication of personal information that is

otherwise required or authorised under this Act.

8 Subsection 60A(3)

Insert:

personal information has the same meaning as in the Privacy Act

1988.

9 At the end of subsection 60A(3)

Add:

Mutual Assistance in Business Regulation Act 1992 Schedule 5

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 101

Schedule 5--Mutual Assistance in Business

Regulation Act 1992

Mutual Assistance in Business Regulation Act 1992

1 Paragraph 7(1)(a)

Omit "Attorney-General", substitute "Minister".

2 Subsection 8(1)

Omit "Attorney-General" (wherever occurring), substitute "Minister".

Note:

The heading to section 8 is altered by omitting "Attorney-General's" and substituting

"Minister's".

3 Subsection 8(2)

Omit "Attorney-General", substitute "Minister".

4 Paragraphs 9(1)(a) and (b)

Omit "Attorney-General", substitute "Minister".

5 Subsections 9(2) and 10(1)

Omit "Attorney-General", substitute "Minister".

6 Section 22

Omit "Attorney-General", substitute "Minister".

Note:

The heading to section 22 is altered by omitting "Attorney-General" and substituting

"Minister".

Schedule 6 Reports of Financial Transactions

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Bill 2005 No. , 2005

Schedule 6--Reports of Financial

Transactions

Financial Transaction Reports Act 1988

1 At the end of subsection 20A(1)

Add:

Example: A solicitor administered the estate of a deceased person who held an

account with an identifying cash dealer. The cash dealer carried out

the prescribed verification procedure to identify the solicitor when the

solicitor closed the deceased person's account.

The solicitor is now administering the estate of another deceased

person who also held an account with the cash dealer. If the cash

dealer has a record of the verification procedure used to identify the

solicitor in relation to the first deceased person's account, it also has

an identification record for the solicitor in relation to the other

deceased person's account.

Schedule 8 Customs Act detention

104 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Schedule 8--Customs Act detention

Customs Act 1901

1 Subparagraph 219ZJC(1)(c)(ii)

Repeal the subparagraph, substitute:

(ii) the person is on bail in relation to a Commonwealth

offence or a prescribed State or Territory offence and

subject to a bail condition (however expressed) that, if

complied with, prevents the person from leaving

Australia.

Freedom of Information Act 1982 Schedule 9

Exemption of certain AUSTRAC documents Part 1

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005

No. , 2005 105

Schedule 9--Freedom of Information Act 1982

Part 1--Exemption of certain AUSTRAC documents

Freedom of Information Act 1982

1 Division 1 of Part II of Schedule 2 (after item dealing with

the Australian Trade Commission)

Insert:

Australian Transaction Reports and Analysis Centre, in relation to

documents concerning information communicated to it under

section 16 of the Financial Transaction Reports Act 1988

2 Application

The amendment made by item 1 applies in relation to a document

that is a document of an agency before, on or after the

commencement of that item.

Schedule 9 Freedom of Information Act 1982

Part 2 Technical corrections

106 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures)

Bill 2005 No. , 2005

Part 2--Technical corrections

Freedom of Information Act 1982

3 Division 1 of Part II of Schedule 2 (item dealing with the

Australian Trade Commission)

Repeal the item, substitute:

Australian Trade Commission, in relation to documents

concerning the carrying out, in whole or in part, of overseas

development projects

Note:

This item removes unnecessary quotation marks.

4 Division 1 of Part II of Schedule 2 (item dealing with the

National Health and Medical Research Council)

Repeal the item, substitute:

National Health and Medical Research Council, in relation to

documents in the possession of members of the National

Health and Medical Research Council who are not persons

appointed or engaged under the Public Service Act 1999

Note:

This item removes unnecessary quotation marks.

Commonwealth of Australia Bills

LAW AND JUSTICE LEGISLATION AMENDMENT (SERIOUS DRUG OFFENCES AND OTHER MEASURES) BILL 2005