EXPLANATORY STATEMENT
Select Legislative Instrument No. 117, 2014
Issued by the authority of the Minister for Justice
Criminal Code Act 1995
Criminal Code Amendment (Drugs) Regulation 2014
Section 5 of the Criminal Code Act 1995 (the Code) provides that the Governor-General may make regulations prescribing matters required or permitted by the Code to be prescribed, or prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Code.
Part 9.1 of the Code contains Commonwealth serious drug offences. These offences are divided into two categories. The first category involves ‘controlled’ drugs, plants and precursors, and offences apply to their possession, sale, trafficking and commercial manufacture. The second category involves ‘border controlled’ drugs, plants and precursors and offences apply to their importation and exportation. The Code also prohibits the possession of border controlled substances that have been unlawfully imported or that are reasonably suspected of having been unlawfully imported.
Controlled and border controlled drugs are listed in Schedule 3 and Schedule 4 respectively of the Criminal Code Regulations 2002 (the Regulations). The schedules also list threshold quantities which are used by law enforcement to determine appropriate charges and by the court to determine penalty levels.
Prior to May 2013, the matters dealt with in Schedules 3 and 4 were set out in Division 314 of the Code. In May 2013, the list of controlled drugs was moved to Schedule 3.
When the matters dealt with in Schedule 3 were moved from the Code to the Regulations, an error occurred. The result is that the trafficable quantity prescribed for 13 controlled drugs differs from the trafficable quantity prescribed in the Code. As a result of the error, some controlled drugs have higher prescribed trafficable quantities than the Code prescribed. Other controlled drugs have lower prescribed trafficable quantities than the Code prescribed.
The purpose of the Regulation is to amend the threshold quantities for trafficable amounts of controlled drugs to reflect what was previously prescribed in the Code.
The Regulation amends the trafficable quantities of 13 controlled drugs as follows:
| Name of controlled substance | Current trafficable quantity | New trafficable quantity |
-
| Amphetamine | 0.75 grams | 2.0 grams |
2. | Benzylpiperazine | 0.75 grams | 2.0 grams |
3. | Cannabis | 125.0 grams | 250.0 grams |
4. | Cannabis resin | 125.0 grams | 20.0 grams |
5. | Gammabutyrolactone (GBL) | 1.0 grams | 0.5 grams |
6. | Heroin (diacetylmorphine) | 1.5 grams | 2.0 grams |
7. | 4-Hydroxybutanoic acid (GHB) | 1.0 grams | 0.5 grams |
8. | Ketamine | 1.0 grams | 3.0 grams |
9. | Methamphetamine | 0.75 grams | 2.0 grams |
10. | Methcathinone | 0.75 grams | 2.0 grams |
11. | 3,4-Methylenedioxyamphetamine (MDA) | 0.75 grams | 0.5 grams |
12. | 4-Methylmethcathinone (4-MMC) | 0.75 grams | 2.0 grams |
13. | Tetrahydrocannabinols (THC) | 5.0 grams | 2.0 grams |
The Australian Federal Police (AFP) and Commonwealth Director of Public Prosecutions (CDPP) have been consulted on this proposal.
The AFP and CDPP have confirmed that to the best of their knowledge, no investigations or prosecutions were affected due the incorrect quantities. The incorrect quantities were in force from May 2013 to present. The Regulation will not affect past or ongoing investigations or prosecutions. The amendments to the trafficable quantities under the Regulation will commence on the day after it is registered on the Federal Register of Legislative Instruments. The Regulation will only affect investigations or prosecutions for conduct occurring after commencement.
The Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Regulation would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Statement of Compatibility with Human Rights
This Legislative Instrument does not engage any of the applicable rights or freedoms. It will not have a retroactive effect. This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Overview
The Criminal Code Amendment (Drugs) Regulation 2014 was enacted to address an error in the threshold quantities for trafficable amounts of controlled drugs as prescribed in the Criminal Code Regulations 2002. This error, which occurred when the list of controlled drugs was moved from Division 314 of the Criminal Code Act 1995 to Schedule 3, resulted in discrepancies between the trafficable quantities of certain controlled drugs as prescribed in the Code and the Regulations. This Regulation was issued by the Minister for Justice under Section 5 of the Criminal Code Act 1995, which allows the Governor-General to make regulations necessary or convenient to carry out or give effect to the Code. The primary objective of this Regulation is to correct the trafficable quantities of 13 controlled drugs to align with the previous prescriptions in the Code, thereby ensuring consistency and accuracy in the enforcement of drug-related laws. The changes will not affect past or ongoing investigations or prosecutions but will apply to conduct occurring after the Regulation's commencement.
Scope and Application
The Criminal Code Amendment (Drugs) Regulation 2014 amends the threshold quantities for trafficable amounts of controlled drugs, correcting an error that occurred when the list of controlled drugs was moved from the Criminal Code Act 1995 to the Criminal Code Regulations 2002. This regulation applies to the Commonwealth and encompasses all persons and entities involved in the possession, sale, trafficking, and commercial manufacture of controlled and border controlled drugs, as defined in Schedules 3 and 4 of the Regulations. The amendment affects the trafficable quantities of 13 specific controlled drugs to align with the previously prescribed quantities in the Code. The Regulation does not apply retroactively and will only affect investigations or prosecutions for conduct occurring after its commencement. It is pertinent to note that the Australian Federal Police and Commonwealth Director of Public Prosecutions have confirmed that no ongoing investigations or prosecutions were impacted by the incorrect quantities in force from May 2013. This regulatory adjustment ensures consistency and accuracy in the application of the law concerning drug offences within the Commonwealth jurisdiction.
Key Provisions
The main operative sections of the Criminal Code Amendment (Drugs) Regulation 2014 (the Regulation) pertain to the correction of trafficable quantities for certain controlled drugs as listed in Schedule 3 of the Criminal Code Regulations 2002. The Regulation was necessitated by an error that occurred when the list of controlled drugs was moved from Division 314 of the Criminal Code Act 1995 to Schedule 3, resulting in discrepancies in the trafficable quantities prescribed for 13 controlled drugs. Section 4 of the Regulation outlines the specific amendments to these quantities, aligning them with the original prescriptions found in the Criminal Code Act 1995. These changes are intended to rectify the legislative oversight without impacting any ongoing or past investigations or prosecutions.
The obligations imposed by the Regulation are primarily on law enforcement agencies, including the Australian Federal Police and the Commonwealth Director of Public Prosecutions. These agencies must now apply the corrected trafficable quantities when determining charges and penalties for offences related to the listed controlled drugs. This involves updating their internal guidelines and training to ensure compliance with the new quantities, which will only apply to conduct occurring after the Regulation's commencement date. The regulation itself mandates no specific actions beyond these updates and clarifications.
Regarding potential breaches, the Regulation does not introduce new offences but rather corrects existing discrepancies. Therefore, no new criminal or civil penalties are specified within the Regulation. However, enforcement agencies may face scrutiny if they fail to implement the corrected trafficable quantities in a timely manner. Any failure to comply with these updated quantities could lead to legal challenges regarding the appropriateness of charges and penalties in court, although no specific penalties are outlined for such failures within the Regulation itself. The Regulation's amendments will come into effect on the day after it is registered on the Federal Register of Legislative Instruments, ensuring that any future conduct will be judged against the corrected trafficable quantities.