The Law Handbook 2024

Chapter 3.2: Drug offences 151 Extra-territorial drug offences UN Convention on illicit drugs The Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) (‘ CTNDPS Act ’) deals with trafficking narcotic drugs and psychotropic substances. The CTNDPS Act is in accordance with the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) (schedule 1 of the CTNDPS Act sets out the Convention in full). Offences The CTNDPS Act creates offences for: • possessing equipment, etc. (s 9); • dealing in drugs on an Australian aircraft (s 10); • dealing in drugs onboard an Australian ship (s 11); • dealing in drugs outside Australia (where the person is in Australia) (s 12); • dealing in drugs outside Australia with a view to the commission of an offence in Australia (s 13); conspiring, attempting, aiding, abetting, counsel­ ling, or procuring by conduct engaged in outside Australia to commit an offence in Australia (s 14). Dealing in drugs Subsection 6(1) of the CTNDPS Act states that: For the purposes of this Act, each of the following is a dealing in drugs: a the cultivation of an opium poppy, coca bush or cannabis plant for the purpose of producing narcotic drugs; b the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained; c the manufacture, extraction or preparation of a narcotic drug or psychotropic substance; d the possession of a narcotic drug or psychotropic substance for the purpose of manufacture, extraction or preparation of another such drug or substance; e the sale, supply, or possession with the intention of sale or supply, of a narcotic drug or psychotropic substance; f the importation into Australia, exportation from Australia, or possession for the purpose of such importation or exportation, of a narcotic drug or psychotropic substance; fa the manufacture, transport or distribution of any substance listed in table I or table II in the annex to the convention or of equipment or materials, with the knowledge that the substance, equipment or materials are to be used for a purpose set out in paragraph (a), (b) or (c); fb organising, managing or financing a dealing in drugs referred to in paragraphs (a), (b), (c), (d), (e), (f) or (fa); g the possession of any substance listed in table I or table II in the annex to the convention or of any equipment or materials, with the knowledge that the substance, equipment or materials are being used or are to be used for a purpose set out in paragraph (a), (b) or (c). Subsection 6(2) states that: For the purposes of this Act, each of the following is also a dealing in drugs: a a conspiracy or attempt to engage in conduct that is, under subsection (1), a dealing in drugs; b being a party to any dealing in drugs referred to in subsection (1); ba aiding, abetting, counselling or procuring, or being by act or omission in any way directly or indirectly knowingly concerned in, or party to, any conduct that is, under subsection (1), a dealing in drugs; c inciting to, urging or encouraging, any conduct that is, under subsection (1), a dealing in drugs. Prosecution Under section 16(1), a person may not be committed for trial under the CTNDPS Act without the written consent of the Commonwealth Attorney-General. This does not prevent a person from being charged, arrested or remanded in custody or on bail (s 16(2)). Presumption of purpose Section 17 of the CTNDPS Act provides for a presumption that possession, importation, export­ ation or intended importation or exportation, of a traffickable or commercial quantity, is for the purpose of sale or supply. Once the prosecution has established that any of these offences has been committed, and that a commercial or traffickable quantity is involved,