Commonwealth Criminal Code
Principles of criminal responsibility codified
In addition to drawing major federal offences together in one piece of legislation, the enactment of the Criminal Code Act 1995 (Cth) (‘Criminal Code’) codifies the general principles of criminal responsibility applied to those offences.
Within the Criminal Code, offences consist of ‘physical elements’ and ‘fault elements’ (rather than the traditional actus reus and mens rea of the common law).
Physical elements of codified offences may be ‘conduct’, ‘a result of conduct’ or ‘a circumstance in which conduct or a result of conduct occurs’. Absolute liability often applies to the physical elements of drug offences under the Criminal Code relating to the quantity of drugs.
Under the definition in section 6.2(2) of the Criminal Code, ‘absolute liability’ means that there are no fault elements for that physical element. Absolute liability also means that the defence of ‘mistake of fact’ under section 9.2 is unavailable in relation to that physical element. (Section 6.2(3) states that the existence of absolute liability does not make any other defence unavailable.)
Fault elements may be ‘intention’, ‘knowledge’, ‘recklessness’ or ‘negligence’ (s 5.1). Recklessness tends to be the requisite fault element for proof of secondary elements of drug offences covered by the Criminal Code. For example, where an offence involves importation of a substance, the prosecution need only prove recklessness on the part of the accused as to the nature of the substance (though they will need to prove intention in relation to its importation). Specific defences, described as ‘circumstances in which there is no criminal responsibility’, are also set out in the Criminal Code.
There is little authority interpreting these codified principles of criminal responsibility. Some judicial guidance is offered in the following cases that consider the application of the Criminal Code to offences under the Customs Act (though these offences have now been replaced by Criminal Code offences): Pong Su (Ruling No 7)  VSC 7; Pong Su (Ruling No 10)  VSC 10; Pong Su (Ruling No 13)  VSC 38; R v Narongchai Saengsai-Or  NSWCCA 108; Adams v The Queen  HCA 15.
Criminal Code drug offences slightly alter the position adopted in Kingswell v The Queen  HCA 72 in which the High Court held (at 276) that the quantity of the drug and other aggravating circumstances under section 235 of the Customs Act (now repealed) were not elements of the offence that need to be established by the prosecution and that a jury would need to consider as part of the trial. Instead, the quantity was merely part of the sentencing process and therefore ought to be considered by the sentencing court. From now on, the quantity is an element of the Criminal Code offences. If the quantity is an element of any of the offences, absolute liability applies to that element.
For publications that provide an introduction to the Criminal Code, see ‘More information about drug offences’ at the end of this chapter.
Commonwealth drug offences
Commonwealth drug offences are largely concerned with conduct that relates to the import and export of drugs. Until 2005, most of these offences could be found in the Customs Act and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) (‘CTNDPS Act’).
The main offences were those of importing prohibited imports and possessing prohibited imports contrary to section 233B of the Customs Act. This changed with the repeal of section 233B and the enactment of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) (‘SDO Act’).
The SDO Act, which commenced on 6 December 2005, updated and moved offences relating to the importation and possession of serious drugs from the Customs Act and the CTNDPS Act to the Commonwealth Criminal Code. The SDO Act establishes the serious drug importation and trafficking offences contained in Part 9.1 of the Criminal Code.
The drug offences under the Criminal Code include:
- trafficking controlled drugs (div 302);
- commercially cultivating controlled plants (div 303);
- selling controlled plants (div 304);
- commercially manufacturing controlled drugs (div 305);
- pre-trafficking controlled precursors (div 306);
- import–export offences (div 307);
- possession offences (div 308); and
- drug offences involving or harming children (divs 309, 310).
The offences can be separated into two categories. The first category relates to the import and export of border-controlled drugs and precursors (i.e. chemicals used to manufacture drugs) and is dealt with in Division 307 of the Criminal Code.
The second category relates to domestic activity involving controlled drugs and precursors (e.g. trafficking and manufacturing). These are dealt with in other parts of the Criminal Code (including Divisions 302, 303, 304, 305). The offences in each category are tiered, based on the quantity of serious drug involved, with greater penalties where a ‘marketable’ or ‘commercial’ quantity is involved.
Given the limited space available, the focus of this chapter is on the first category of import and export drug offences rather than the second category of domestic offences. The latter are intended to operate concurrently with state laws (s 300.4).
It should be noted, however, that the intended concurrent operation of state and federal offences has been called into question by a High Court case, Dickson v The Queen  HCA 30. In Dickson, it was held that a Victorian offence (in this case, theft) was invalid to the extent of any inconsistency with an equivalent Commonwealth offence by operation of section 109 of the Australian Constitution. This issue was also considered by the High Court in relation to drug offences in Momcilovic v The Queen  HCA 34. The High Court held that the Victorian offence of trafficking was not inconsistent with the similar Commonwealth offence and was therefore not invalid.
Import and export of border-controlled drugs
Division 307 of the Criminal Code provides for offences relating to the import and export of ‘border-controlled drugs’. Section 300.2 defines ‘import’ to include ‘bring into Australia’. Import into Australia occurs when the goods are landed or brought within the limits of a port with the intention of landing them. Goods are not imported simply by bringing them within the three-mile limit of Australian territorial waters (Barwick CJ in R v Bull  HCA 23; applied in Pong Su (Ruling No 7)  VSC 7).
The Criminal Code Regulations 2002 (Cth) list border-controlled drugs and plants and sets out ‘marketable’ and ‘commercial’ quantities relevant to the various offences. The ‘Border-controlled drugs and quantities’ table below lists common border-controlled drugs and sets out quantities.
Sections 307.1 to 307.4 of the Criminal Code relate to importing and exporting border-controlled drugs and plants. The applicable penalty where a commercial quantity is involved is imprisonment for life or 7500 pu, or both. Where a marketable quantity is involved the applicable penalty is 25 years’ imprisonment or 5000 pu, or both. There is a further tier of offence applying to any quantity with a penalty of 10 years’ imprisonment, or 2000 pu, or both, provided there is a commercial purpose. In addition, there is an offence that applies to any amount of a border-controlled drug or plant that is not determined with a penalty of two years’ imprisonment, or 400 pu, or both.
Import and export of border-controlled precursors
In division 307 of the Criminal Code there are offences for the importation or exportation of border-controlled precursors with the intention of manufacturing a controlled drug. The Criminal Code Regulations 2002 (Cth) list border-controlled precursors and set out quantities relevant to the various offences.
The penalty where a commercial quantity is involved is 25 years’ imprisonment, or a fine of 5000 pu, or both. Where a marketable quantity is involved, the penalty is 15 years’ imprisonment, or a fine of 3000 pu, or both. There is a further offence where any quantity is involved and this carries a penalty of seven years’ imprisonment, or a fine of 1400 pu, or both.
The quantities for a commercial and a marketable quantity are based on the amount of precursor necessary to manufacture the corresponding amount of border-controlled drug.
A person commits an offence when they import or export a border-controlled precursor and either or both of the following apply:
- the person intends to use any of the substance to manufacture a controlled drug; or
- the person believes another person intends to use the substance to manufacture a controlled drug.
|Marketable quantity (grams)
|Commercial quantity (kilograms)
|Cannabinoids (other than a cannabinoid of a kind that can be obtained from a plant that is not a cannabis plant)
|Cannabis (in any form, including flowering or fruiting tops, leaves, seeds or stalks, but not including cannabis resin or cannabis fibre)
|4-Hydroxybutanoic acid (GHB)
Part 9.1 of the Criminal Code contains evidentiary presumptions in relation to the above offences in section 307.14. Where a Commonwealth law requires the import or export to be authorised but it isn’t, 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 and a belief that another intended to manufacture a controlled drug. However, these presumptions do not apply if the person proves on the balance of probabilities that they did not have that intention or belief.
To establish a precursor importation offence, the accused must have intended to use the precursor to manufacture a controlled drug and/or believed that another person intended to use the precursor to manufacture a controlled drug.
Drug offences involving children
There are offences in division 309 of the Criminal Code directed at adults who involve children under 18 years of age in the drug trade. As well as a range of domestic offences, these include the offences in sections 309.7 to 309.15 relating to procuring a child to pre-traffic in precursors, or import controlled drugs or border-controlled precursors. Pre-trafficking is defined in section 306.1 and includes selling 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.
Combining quantities of drugs or precursors
Division 311 of the Criminal Code enables charges to be brought on the basis of combined quantities of drugs or combined amounts of precursors in certain situations. Separate trafficking transactions on the same occasion may be charged together. Quantities of drugs imported or trafficked or quantities of precursors that are pre-trafficked, on different occasions, can be charged together where it can be shown that the person is carrying on a business. Quantities of drugs or quantities of precursors can also be charged together when there are frequent offences involving smaller quantities.
The Criminal Code has restrictions as to what may be combined in a charge. Selling (i.e. trafficking) smaller parcels of drugs requires each transaction to be within seven days of another, and where several importations are involved they must be within 30 days of each other. The prosecution must make it clear that it intends to rely on these provisions and a description of the conduct alleged must be set out in the charge or provided to the accused within a reasonable time before the proceedings.
There are also provisions for combining different types of drugs. For example, an accused who sells half a commercial quantity of heroin and half a commercial quantity of cocaine can be prosecuted for trafficking a commercial quantity of controlled drugs.
Division 313 of the Criminal Code provides for total or partial defences to the serious drug trafficking and importation offences set out in Part 9.1 of the Criminal Code. A person is not criminally responsible for a Part 9.1 offence if, 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 had the conduct been so justified or excused the conduct would not have constituted the offence. These defences are in addition to the general defences contained in the Criminal Code.
Chapter II, Part 2.4 of the Criminal Code covers extensions of criminal liability including attempt (s 11.1), aiding and abetting (s 11.2(1)), and conspiracy (s 11.5).
Section 11.1 of the Criminal Code states that a person who is guilty of attempting to commit an offence is punishable as if the offence attempted had been committed. To be found guilty, it must be shown that a person’s conduct was more than merely preparatory to the commission of the offence, and one of the fault elements of intention and knowledge (see s 3.2) needs to be established in respect of each physical element of the offence attempted.
Impossibility is not a defence, and a person may be found guilty of attempt even if they actually committed the offence, although if found guilty of attempt under section 11.1, a person cannot be subsequently charged with the completed offence (s 11.1(4), (5)). Any defences, procedures, limitations or qualifying provisions that apply to an offence also apply to the offence of attempting to commit that offence (s 11.1(6)).
Aiding and abetting
Section 11.2(1) of the Criminal Code states that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence. For the person to be guilty, they must have aided, abetted, counselled or procured the commission of the offence by the other person and the offence must be committed by the other person (s 11.2(2)). Section 11.3 requires intent or recklessness on the part of the accused to be found guilty. Section 11.2(4) contains defences including the accused terminating their involvement prior to the commission of the offence, and that of taking all reasonable steps to prevent the commission of the offence. Being found guilty of aiding, abetting, counselling or procuring the commission of an offence does not require the principal offender to be found guilty or even to be prosecuted (s 11.2(5)).
Section 11.5(1) of the Criminal Code states that a person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 pu or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. This section sets out the requirements for a finding of guilt for conspiracy (s 11.5(2)), the defences and situations when a person cannot be found guilty of conspiracy (s 11.5(4), (5)), and what will not be allowed as a defence (s 11.5(3)).
A court may nevertheless dismiss the charge for reasons of justice (s 11.5(6)). Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given (s 11.5(8)).
Customs Act 1901 (Cth)
Cases decided under the now repealed provisions of the Customs Act may provide guidance as to the interpretation of certain provisions in the Criminal Code, but must be treated with caution following the repeal of sections 233B and 235.
However, the Customs Act remains important as the central source of detention and search powers for the investigation of federal drug offences.
Powers of detention and search
The Customs Act contains specific powers for the detention and search of people reasonably suspected of unlawfully carrying any prohibited goods or internally concealing a suspicious substance.
The provisions relating to a frisk search are found in sections 219L, 219M, 219N and 219P of the Customs Act.
‘Suspicion on reasonable grounds’ includes suspicion reasonably formed on the basis of a person’s travel itinerary, declarations made by the person under Commonwealth law, documents in the person’s possession, unusual behaviour of the person, and the content or appearance of the person’s baggage.
The frisk search is defined as a rapid and methodical running of hands over the person’s outer garments and an examination of anything worn by the person that can be conveniently removed and is voluntarily removed by the person (s 4(1)).
The search must be carried out by a customs officer who is of the same sex as the detainee (s 219M(1)(b)). A person who refuses to submit to a frisk search or produce a thing required to be produced after submitting to a frisk search will be liable to an external search (s 219P).
The provisions relating to an external search are in sections 219Q and 219R of the Customs Act. An external search means a search of the body of, and anything worn by, a person in order to determine whether the person is carrying any prohibited goods and to recover any such goods. It does not include an internal examination of the person’s body (s 4(1)).
An external search can be carried out where a detention officer or police officer suspects on reasonable grounds that a person detained under section 219Q is unlawfully carrying prohibited goods on their body (s 219R(1)(b)). An external search can be carried out as soon as practicable if the person is not in need of protection and the person consents (s 219R(1)(c)). Otherwise, the detention officer or police officer must apply to an authorised officer, or a justice, to carry out an external search of the detainee (s 219R(1)(d)).
If an order is made for an external search of a person in need of protection (i.e. who is under 17 or whose physical or mental condition makes them incapable of managing their own affairs (s 4(20)), their legal guardian, or a specified person capable of representing the detainee’s interests, must be present and the external search must be acceptable to this person (s 219R(5), (6)).
The external search must be carried out by a police or customs officer of the same sex as the detainee (s 219R(10), (11)). An external search may be conducted using equipment; a videotape record may be made of the external search
(ss 219R(11A), 219RAA).
The provisions relating to an internal search are contained in the Customs Act (ss 219S–219Z).
A detention officer or police officer who suspects on reasonable grounds that a person is internally concealing a suspicious substance may detain the person for the purposes of carrying out an internal, non-medical scan under section 219SA, or making an application for detention of the person (s 219S).
If a person has been detained under section 219S, a customs officer may carry out an internal, non-medical scan of the person if the detainee is not in need of protection and the detainee consents to an internal, non-medical scan (s 219SA(1)).
An application for a detention order must be made to a Federal Court or Supreme Court judge if the person is in need of protection. In other cases, the application may be made to these judges or to a magistrate (s 219T). An order for detention is made for an initial period of up to 48 hours and can be extended by the judge or magistrate for a further 48 hours. If an order for detention is not made or extended, the person must be released immediately (s 219T, 219V).
If the person is in need of protection (as defined in ‘External search’, above), a person who is not a customs or police officer must be appointed to represent the detainee’s interests.
If the person consents to an internal search and is not in need of protection, the search must be carried out as soon as practicable.
If the person, or the person appointed to represent their interests, refuses to undergo an internal search, an application must be made to a Federal Court or Supreme Court judge for an order for an internal search. A judge must not make an order for an internal search unless satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance (s 219V(9)).
An internal search must be carried out by a medical practitioner, in a place suitably equipped (s 219Z). The medical practitioner must not use any procedure involving surgical incision unless they consider it necessary because the detainee’s life is at risk (s 219ZF).
A person detained for an internal search must be allowed to consult a lawyer of their choice (s 219W). There is no provision for this safeguard in relation to frisk and external searches.