Drugs, Poisons and Controlled
Substances Amendment Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill amends the Drugs, Poisons and Controlled Substances Act 1981
to strengthen laws against the trafficking (including manufacture) and
distribution of illicit drugs such as ice in Victoria.
The Victorian Government's election commitment on ice, Ice Intervention,
outlined steps to tackle the ice epidemic and find a solution to make
communities safer. That commitment included new criminal offences
targeting ice.
In March 2015, the Government released Victoria's Ice Action Plan and
embarked on a landmark, $45.5 million effort to reduce the supply, demand
and harm of ice. The commitment to establish tough new offences against
drug manufacturers and dealers was affirmed in that Plan.
Whether imported from overseas or produced locally in clandestine drug
laboratories, the supply and distribution of ice is a major concern. According
to the Australian Crime Commission the market for ice in Australia is
entrenched and expanding, and of all illicit drugs, ice poses the highest risk to
the Australian community.
The offences in this Bill target conduct that contributes to the domestic
manufacture and trafficking of illicit drugs such as ice. The offences apply
to all drugs of dependence listed in Schedule Eleven to the Drugs, Poisons
and Controlled Substances Act 1981, to maintain consistency with other
offences in Part V of that Act and send a strong message that the trafficking
and distribution of any illicit drug will not be tolerated.
581073
1
BILL LA INTRODUCTION 10/11/2015
Clause Notes
Part 1—Preliminary
Clause 1
sets out the purpose of the Bill, which is to amend the Drugs,
Poisons and Controlled Substances Act 1981 to establish
further offences in relation to drugs of dependence, and to
consequentially amend other Acts including the Confiscation
Act 1997.
Clause 2
provides for the commencement of the Act. The Act commences
a day or days to be proclaimed. Any provision that has not
commenced before 20 October 2016 comes into operation on that
day.
Clause 3
specifies that in the Bill the Drugs, Poisons and Controlled
Substances Act 1981 is called the Principal Act.
Part 2—Amendment of the Drugs, Poisons and Controlled
Substances Act 1981
Clause 4
inserts in the definitional provisions in section 70(1) of the
Principal Act definitions of the terms "public place" and
"school". These terms are used in clauses 5, 6 and 9 of the Bill.
Clauses 5, 6 and 9 of the Bill insert new offences in
sections 71AB, 71AC and 71B of the Principal Act.
Those sections set out offences dealing with, respectively,
trafficking in a drug of dependence to a child, trafficking in a
drug of dependence and supplying a drug of dependence to a
child. Each new offence established by the Bill imposes a
heavier penalty for the particular criminal conduct when it
occurs at a school or in any public place within 300 metres of a
school, with the maximum term of imprisonment for each new
offence being higher by five years than the penalty for the
existing offence.
Clause 5
subclause (1) substitutes new wording in section 71AB of the
Principal Act as a consequence of subclause (2). The new
wording clarifies that the offence in that section of trafficking in
a drug of dependence to a child is to operate subject to the new
offence being inserted by subclause (2).
2
Subclause (2) inserts new section 71AB(2) in the Principal Act to
make it an offence to traffick in a drug of dependence to a child
at a school or in any public place within 300 metres of a school.
The penalty is up to 25 years imprisonment.
Clause 6
subclause (1) substitutes new wording in section 71AC of the
Principal Act as a consequence of subclause (2). The new
wording clarifies that the offence in that section of trafficking in
a drug of dependence is to operate subject to the new offence
being inserted by subclause (2).
Subclause (2) inserts new section 71AC(2) in the Principal Act to
make it an offence to traffick in a drug of dependence at a school
or in any public place within 300 metres of a school. The penalty
for this offence is up to 20 years imprisonment.
Clause 7
inserts new section 71AD after section 71AC in the Principal
Act. New section 71AD(1) makes it an offence to intentionally
cause another person to traffick in a drug of dependence by
threatening to harm, or using violence against, that person or
another person. The penalty is up to 5 years imprisonment.
New section 71AD(2) clarifies that the establishment of this
offence does not prevent the person who was caused to traffick
from being liable for a trafficking offence under Part V of the
Principal Act. However, it is intended the person will have the
possibility of a defence of duress and duress in the context of
family violence if that defence is available to the person in all the
circumstances of the particular case. This intention is clarified in
new section 71AD(3).
New section 71AD(3) clarifies that the establishment of the
offence in new section 71AD does not limit or affect the
operation of certain existing provisions of the Principal Act or
the Crimes Act 1958. These provisions relate to the offences
of conspiring to commit or inciting certain drug offences
(sections 79 and 80 of the Principal Act), the defence of duress
and duress in the context of family violence (sections 322O
and 322P of the Crimes Act 1958) and complicity in the
commission of offences (sections 323 and 324 of the Crimes
Act 1958).
3
Clause 8
subclause (1) substitutes the word "trafficking" for the word
"manufacturing" in existing section 71A(1) of the Principal Act
to fix an inconsistency. The use of "manufacturing" instead of
"trafficking" is inconsistent with the terminology used throughout
Part V of the Principal Act, in which the word "traffick" includes
the manufacture of a drug of dependence.
Subclause (2) inserts new section 71A(4) after section 71A(3) of
the Principal Act to clarify that nothing in section 71A is limited
by new section 71E in clause 10 of the Bill, which relates to the
possession of instructions for trafficking or cultivating drugs of
dependence. Section 71A(1) makes it an offence to possess
substances, material, documents or equipment for trafficking in a
drug of dependence with the intention of using those items for the
purpose of trafficking.
Clause 9
subclause (1) substitutes new wording in section 71B(1) of the
Principal Act as a consequence of subclause (2). The new
wording clarifies that the existing offence in that section of
supplying a drug of dependence to a child is to operate subject to
the new offence being inserted by subclause (2).
Subclause (2) inserts new section 71B(1A) in the Principal Act to
make it an offence for a person to supply a drug of dependence to
a child at a school or in any public place within 300 metres of a
school, for the purposes of the child supplying the drug to
another person (whether a child or adult) or for the use of the
drug by that child. The penalty is a fine of up to 1600 penalty
units or up to 20 years imprisonment, or both.
Clause 10 inserts new sections 71E and 71F after existing section 71D in
the Principal Act.
New section 71E(1) makes it an offence for a person, unless
authorised or licensed under the Principal Act or otherwise
with a reasonable excuse, to possess a document containing
instructions for trafficking (including manufacturing) or
cultivating a drug of dependence. "Document" is defined in
section 38 of the Interpretation of Legislation Act 1984 and
includes photographs, discs and films. The penalty for this
offence is a fine of up to 600 penalty units or up to 5 years
imprisonment, or both.
4
New section 71E(2) disapplies section 104 of the Principal Act to
an offence under section 71E(1). The aim of this provision is to
ensure that the onus on an accused in relation establishing an
exception of "reasonable excuse" is an evidential onus and not a
legal onus. Section 104 provides that in any proceedings for an
offence against the Principal Act, the legal burden of proving any
matter of exception, qualification or defence rests with the
accused.
New section 71F(1) makes it an offence for a person, unless
authorised or licensed under the Principal Act or otherwise with a
reasonable excuse, to publish a document containing instructions
for trafficking (including manufacturing) or cultivating a drug of
dependence if intending that those instructions will be used by
another person for the purposes of trafficking or cultivation, or
knowing or being reckless as to whether the instructions will be
so used. The penalty is a fine of up to 1200 penalty units or up to
10 years imprisonment, or both.
New section 71F(2) specifies that it is irrelevant whether the
instructions contained in the document actually work to traffick
or cultivate a drug of dependence. The possibility that the
instructions may not actually work is not intended to diminish
liability for the offence in new section 71F(1).
New section 71F(3) clarifies the meaning of the word "publish"
for the purposes of the section. "Publish" includes selling,
displaying, distributing and demonstrating.
New section 71F(4) disapplies section 104 of the Principal Act to
an offence against section 71F(1). As with new section 71E(2),
the aim is to ensure that the onus on an accused in relation to
establishing an exception of "reasonable excuse" is an evidential
onus and not a legal onus.
Clause 11 substitutes wording in section 72C of the Principal Act to add the
offence in new section 72D(2) in clause 12 of the Bill to the list
of offences for which a defence in relation to the cultivation of
narcotic plants under section 72C may be available. Where an
offence alleged under new section 72D involves the cultivation of
narcotic plants, it will be a good defence if the accused adduces
evidence that satisfies the court on the balance of probabilities
that he or she did not know or suspect the plant was in fact a
narcotic plant.
5
Clause 12 inserts new section 72D after existing section 72C in the
Principal Act. New section 72D(1) makes it an offence for an
owner or occupier of land or premises, unless authorised or
licensed under the Principal Act, to intentionally permit another
person to use that land or those premises for trafficking in a drug
of dependence. The penalty is up to 5 years imprisonment.
New section 72D(2) establishes the same offence in relation to
cultivating a drug of dependence, making it an offence for an
owner or occupier of land or premises, unless authorised or
licensed under the Principal Act, to intentionally permit another
person to use that land or those premises for cultivating a drug
of dependence. This offence carries the same penalty of up to
5 years imprisonment.
New section 72D(3) lists the things the word "premises" includes
for the purposes of the section. These include residential
dwellings, commercial or industrial land and buildings, other
structures such as caravans, cabins or sheds, and vehicles
including motor vehicles, aircraft, boats and vessels.
Clause 13 subclause (1) inserts new section 76(1)(ac) after section 76(1)(ab)
in the Principal Act. This new section enables a person charged
with an offence under new section 71E in clause 10 of the Bill
to be given an adjourned bond (an adjournment for up to
12 months without conviction) under section 75(1) of the
Sentencing Act 1991, if the court is be satisfied on the balance
of probabilities that the offence was not committed by the person
for the purpose of cultivating or trafficking a drug of dependence.
Subclauses (2) and (3) substitute wording in sections 76(1)(b)
and 76(1)(c) of the Principal Act to include a reference to new
section 76(1)(ac) in each of those sections. This means that an
adjourned bond can only be given in certain circumstances,
including that the person has not previously been convicted of
any drug offence under the Part V of the Principal Act and that
the court is satisfied beyond reasonable doubt that the person is
guilty of the offence.
Clause 14 inserts in section 79(1) of the Principal Act (conspiracy)
references to four offences being established by the Bill
(new sections 71AD, 71E, 71F and 72D). The remaining
three offences in clauses 5, 6 and 9 of the Bill are included
automatically by way of existing references in section 79(1)
of the Principal Act.
6
The amendment to section 79(1) of the Principal Act adds the
four new offences to the list of drug offences in that section.
This means that a person who conspires to commit any of those
offences will be liable for the same penalties and punishment for
the offence.
Clause 15 inserts in sections 80(1) and 80(4) of the Principal Act (inciting)
references to four of the new offences being established by the
Bill (new sections 71AD, 71E, 71F and 72D). The remaining
three offences in clauses 5, 6 and 9 of the Bill are included
automatically by way of existing references in sections 80(1)
and 80(4) of the Principal Act.
The amendment to section 80(1) of the Principal Act adds
the four offences to the list of drug offences in that section.
This means that a person who incites the commission of any
of those offences will be liable for the same penalties and
punishments for the offence.
The amendment to section 80(4) of the Principal Act adds the
four offences to the list of drug offences in that section.
This means that a person who does a preparatory act for the
commission of an offence outside Victoria under a law that
corresponds to those offences will be liable for the same penalties
and punishments for the offence.
Clause 16 inserts new section 144 after existing section 143 in the Principal
Act to provide for transitional arrangements to support the fair
operation of the Bill.
New section 144(1) ensures that if an offence is alleged to have
been committed before the date on which new section 71AB(2)
(trafficking in a drug of dependence to a child at a school or in
a public place within 300 metres of a school) commences
operation, then that more serious offence cannot be applied to the
alleged offence.
New section 144(2) ensures that if an offence is alleged to have
been committed before the date on which new section 71AC(2)
(trafficking in a drug of dependence at a school or in a public
place within 300 metres of a school) commences operation, then
that more serious offence cannot be applied to the alleged
offence.
7
New section 144(3) ensures that if an offence is alleged to have
been committed before the date on which new section 71B(1A)
(supplying a drug of dependence to a child at a school or in a
public place within 300 metres of a school) commences
operation, then that more serious offence cannot be applied to
the alleged offence.
New section 144(4) clarifies that if an offence is alleged to have
been committed between two dates, one before and one on or
after the offences in new sections 71A(2), 71AC(2) and 71B(1A)
have commenced operation, then the offence is taken to have
been committed before that commencement date. This means
those more serious offences cannot be applied to the alleged
offence.
Part 3—Amendment of other Acts
Clause 17 amends clause 1 of Schedule 2 to the Confiscation Act 1997 to
include in that clause the new offences of trafficking in a drug
of dependence to a child at a school or in a public place within
300 metres of a school (new section 71AB(2)) and trafficking
in a drug of dependence at a school or in a public place within
300 metres of a school (new section 71AC(2)).
The listing of an offence in Schedule 2 to the Confiscation
Act 1997 means that a person convicted of the offence may be
subject to the "automatic forfeiture" regime in that Act, which
provides for the proceeds of the offence to be forfeited to the
State 60 days following an accused's conviction. It also means
that the "civil forfeiture" regime applies to the offence.
Under civil forfeiture, property that is reasonably suspected to
be the proceeds of one or more Schedule 2 offences can be
forfeited to the State, irrespective of whether a person has been
charged or convicted of that offence.
Subclause (1) amends clause 1(a) of Schedule 2 to restrict the
operation of that clause to section 71AB(1) of the Principal Act
as a consequence of inserting new clause 1(aca) immediately
after that clause. New clause 1(aca) adds new section 71AB(2)
to the list of serious drug offences in Schedule 2, in
circumstances where the drug is a drug of dependence and
of an "automatic forfeiture" quantity.
8
Subclause (2) also amends clause 1(ad) of Schedule 2 to restrict
the operation of that subclause to section 71AC(1) of the
Principal Act as a consequence of inserting new clause 1(ada)
immediately after that clause. New clause 1(ada) adds new
section 71AC(2) to the list of serious drug offences in
Schedule 2, in circumstances where the drug is a drug of
dependence and of an "automatic forfeiture" quantity.
Subclause (3) inserts in each of clauses 1(c), 1(d) and 1(e) in
Schedule 2 a reference to new clauses 1(aca) and 1(ada).
The purpose of these additions is to ensure that the offences
in the Principal Act relating to conspiracy, incitement and
aiding or abetting an offence outside Victoria are captured by
Schedule 2 when committed in respect of offences against new
section 71AB(2) or 71AC(2), in circumstances where the drug is
a drug of dependence and of an "automatic forfeiture" quantity.
Clause 18 amends section 250A of the Residential Tenancies Act 1997 to
add conduct prohibited by the offences in new sections 71AD
and 72D to the list of drug-related conduct in section 250A of
that Act for which the Director of Housing may give a public
housing tenant notice to vacate.
Subclause (1) inserts new sections 250A(1)(da) and 250(1)(db)
immediately after section 250A(1)(d) of the Residential
Tenancies Act 1997. New section 250A(1)(da) adds to
section 250A the conduct of intentionally causing another person
to traffick in a drug of dependence by threatening to harm, or
using violence against, that person or another person.
New section 250A(1)(db) adds to section 250A the conduct of
intentionally permitting another person to use rented public
housing premises for trafficking or cultivation purposes.
Subclause (2) fixes an incorrect reference in section 250A(3) of
the Residential Tenancies Act 1997 by substituting the word
"trafficking" for the word "manufacture" in the definition of
"preparatory item". This will achieve consistency with the
meaning of the word "traffick" in the Principal Act.
Part 4—Repeal of amending Act
Clause 19 provides for the repeal of the amending Act on 20 October 2017.
This repeal does not affect the continuing operation of the
amendments made by this amending Act (see section 15(1) of
the Interpretation of Legislation Act 1984).
9