Commonwealth Drug Offences and Conclusion to Drug Offences

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This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 882-899.


[1] In 2005 Part 9.1 of the Criminal Code (Cth) was enacted, introducing a new regime of federal drug offences. These sections:

  • Largely replicated the existing Customs Act offences.
    • Before 2005, the Commonwealth drug offences were largely limited to activities associated with the import and export of drugs contained in the Customs Act.
  • Introduced a modified form of the offences set out in the Model Criminal Code.
  • Created new domestic drug possession offences.
    • There is now duplication and overlap between the State and Commonwealth.
    • However, the Commonwealth domestic distribution drug offences are not important as the state laws are still used in this area.

As such, the clear distinction between State and Commonwealth drug law that existed before 2005 has since changed. The idea was that there would be a single Criminal Code for the whole of Australia, and that serious drug offences would be covered comprehensively by interconnecting Commonwealth and State legislation.

  • This, however, never happened, and instead there is now two sets of overlapping laws, with informal division.

The Constitutional Basis

[2] Under the Australian Constitution, the Commonwealth Parliament has only specific enumerated powers, which are largely to be found in s 51 of the Constitution.

  • Whilst the Commonwealth has no specific drug law power, the basis of Part 9.1 of the Criminal Code was an expansive interpretation of the ‘external affairs’ power by the High Court in Commonwealth v Tasmania.[3]
  • It was held that the Commonwealth Parliament could legislate to give effect to the ‘international obligations’ created by a convention.

Controlled Substances

[4] The Criminal Code distinguishes between:

  • Controlled drugs, plants and precursors - domestic substances.
  • Border controlled drugs, plants and precursors – those prohibited under the import/export offences.

There are far more border controlled drugs/plants/precursors specified than controlled drugs/plants/precursors. The quantities that constitute a commercial quantity etc also differ between controlled and border-controlled drugs.

  • It should be noted that the quantities under the Commonwealth law are ‘pure’ quantities, not the admixed quantities used under NSW law.

Importing and Exporting Offences

[5] The offences are:

  • Importing or exporting border controlled drugs or plants (ss 307.1 – 307.4).
  • Importing or exporting border controlled precursors (ss 307.11 – 307.13).
  • Possessing imported border controlled drugs or plants (ss 307.5 – 307.7).
  • Possessing border controlled drugs or plants reasonably suspected of being imported (ss 307.8 – 307.10)

Full definition, including actus reus elements and mens rea requirements, can be found in those sections of theCriminal Code (NSW).

  • Different penalties apply.
  • Note: s 307.1 and 307.11 should be read.

Physical Element: Import/Export

[6] Importing and exporting are defined in s 300.2:

  • Export means taking drugs outside Australia.
  • Import, in relation to a substance, means bringing the substance into Australia and includes:
    • (a) bring the substance into Australia; and
    • (b) deal with the substance in connection with its importation.

Before 2010, import was considered as simply bringing drugs into Australia. This changed after a series of case decisions, starting with Campbell:[7]

  • The general principle in criminal law is that there needs to be a coincidence of actus reus and mens rea for a particular criminal offence to be made out.
  • It was successfully appealed by the accused in this case that the physical element (the importation) had been completed before the accused had formed the intention to become an accessory to the activities.

And also in Toe:[8]

  • Facts: Two packages containing drugs arrived by airfreight in Sydney, addressed to a person who appeared to the courier company to be fictitious. Toe made contact with TNT and arranged for the APD courier company to pick the packages up from TNT's depot. Toe was later apprehended in his residence with the packages opened. Toe's behaviour in collecting the packages and telephone conversations after the packages had been opened convinced the jury that he had at least been reckless as to the fact that the packages contained border controlled drugs. Toe appealed his conviction on a number of grounds, including that the importing had already been completed before he became involved.
  • Held: ‘Mere proof of my [the judge speaking in first person] involvement in the collection of the goods...does not prove that I am the importer, although my activity in that regard may be circumstantial evidence tending to prove that I was the importer’. The appeal was upheld and the matter remitted for a new trial.


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, p. 882.
  2. Textbook, pp. 822-4.
  3. (1983) 46 ALR 625.
  4. Textbook, pp. 884-5.
  5. Textbook, pp. 885-6.
  6. Textbook, pp. 886-9.
  7. (2008) 73 NSWLR 272.
  8. (2010) 106 SASR 203.
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