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Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990

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CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97, 1990
CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - TABLE OF PROVISIONS
TABLE OF PROVISIONS PART 1 - PRELIMINARY Section 1. Short title 2. Commencement 3. Interpretation 4. Act extends to external Territories 5. Effect of this Act on other laws 6. Meaning of "dealing in drugs" 7. Meaning of "flight" in relation to aircraft 8. Meaning of "ship at sea" PART 2 - OFFENCES 9. Possession of equipment etc. 10. Dealing in drugs on board an Australian aircraft 11. Dealing in drugs on board an Australian ship 12. Dealing in drugs outside Australia 13. Dealing in drugs outside Australia with a view to commission of offence in Australia etc. 14. Conspiracy etc. outside Australia to commit offence inside Australia 15. Penalties for offences against sections 10 to 13 PART 3 - MISCELLANEOUS 16. Prosecutions 17. Presumption that traffickable quantity etc. of narcotic drug etc. is for sale or supply 18. Venue where offence committed on aircraft 19. Change of venue 20. Evidence of certain matters 21. Section 38 of Judiciary Act SCHEDULE 1 UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES SCHEDULE 2 NARCOTIC DRUGS SCHEDULE 3 PSYCHOTROPIC SUBSTANCES CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - LONG TITLE
An Act to make provision with respect to the traffic in narcotic drugs and psychotropic substances in accordance with the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - PART 1 PART 1 - PRELIMINARY
CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 1 Short title
(Assented to 29 November 1990) 1. This Act may be cited as the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990. (Minister's second reading speech made in House of Representatives on 18 October 1990 Senate on 8 November 1990) CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 2 Commencement
2. This Act commences on a day to be fixed by Proclamation, being a day not earlier than the day on which the Convention enters into force for Australia. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 3 Interpretation
3. In this Act, unless the contrary intention appears: "Australia" includes: (a) the external Territories; and (b) the Australian coastal sea; "Australian aircraft" means: (a) an aircraft registered in accordance with the Civil Aviation Regulations as an Australian aircraft; or (b) an aircraft that is owned by, or is in the possession or control of, the Commonwealth or an authority of the Commonwealth (including Qantas Airways Limited); or (c) an aircraft of any part of the Defence Force (including an aircraft that is being commanded or piloted by a member of that Force in the course of the member's duties as such a member); "Australian coastal sea" means: (a) the territorial sea of Australia; and (b) the sea on the landward side of the territorial sea of
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Australia; "Australian ship" means: (a) a ship registered in Australia; or (b) an unregistered ship that has Australian nationality; or (c) a ship that belongs to an arm of the Defence Force; "cannabis" means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted; "cannabis plant" means any plant of the genus Cannabis; "cannabis resin" means the separated resin, whether crude or purified, obtained from the cannabis plant; "coca bush" means the plant of any species of the genus Erythroxylon; "commercial quantity": (a) in relation to a narcotic drug - means a quantity not less than the quantity specified in Column 3 of Schedule 2 opposite to the reference to that drug in Column 1 of that Schedule; and (b) in relation to a psychotropic substance referred to in Column 1 of Part 1 of Schedule 3 - means a quantity not less than the quantity specified in Column 3 of that Part opposite to the reference to that drug; "conduct engaged in outside Australia" does not include conduct engaged in on board: (a) an Australian aircraft in flight outside Australia; or (b) an Australian ship at sea; "Convention" means the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances adopted in Vienna on 19 December 1988, a copy of whose English text is set out in Schedule 1, and includes that Convention as amended from time to time in relation to Australia; "dealing in drugs" has the meaning given by section 6; "flight", in relation to an aircraft, has the meaning given by section 7; "law" includes a provision of a law; "manufacture", in relation to a narcotic drug or psychotropic substance, means any process by which the drug or substance may be obtained, and includes: (a) refining; and (b) the transformation of a narcotic drug into another narcotic drug or of a psychotropic substance into another psychotropic substance; but does not include: (c) in the case of a narcotic drug - the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained; and (d) in the case of a psychotropic substance - the making, on prescription, by a chemist of a preparation containing a psychotropic substance; "narcotic drug" means a substance specified in Schedule 2; "opium poppy" means the plant of the species Papaver somniferum L; "psychotropic substance" means any substance specified in Schedule 3; "ship at sea" has the meaning given by section 8; "traffickable quantity": (a) in relation to a narcotic drug - means a quantity not less than the quantity specified in Column 2 of Schedule 2, but less than the quantity specified in Column 3 of that Schedule, opposite to the reference to that drug in Column 1 of that Schedule; and (b) in relation to a psychotropic substance referred to in Column 1 of Part 1 of Schedule 3 - means a quantity not less than the quantity specified in Column 2 of that Part, but less than the quantity specified in Column 3 of that Part, opposite to the reference to that drug. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 4 Act extends to external Territories
4. This Act extends to all external Territories. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 5 Effect of this Act on other laws
5. (1) This Act is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory. (2) Where a person has been convicted in a country outside Australia of an offence against the law of that country in respect of any conduct, that person is not liable to be convicted of an offence against this Act in respect of that conduct. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 6 Meaning of "dealing in drugs"
6. (1) For the purposes of this Act, each of the following is a dealing in drugs: (a) the cultivation of 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 the manufacture, extraction or preparation of another such drug or
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substance; (e) the sale, supply, or possession for the purpose 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; (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). (2) 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) 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. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 7 Meaning of "flight" in relation to aircraft
7. For the purposes of this Act: (a) a flight of an aircraft commences: (i) at the time of the closing of the last external door of the aircraft to be closed before the aircraft first moves for the purpose of taking off from any place; or (ii) if subparagraph (i) is not applicable - at the time at which the aircraft first moves for the purpose of taking off from any place; and (b) a flight of an aircraft ends: (i) at the time of the opening of the first external door of the aircraft to be opened after the aircraft comes to rest after its next landing after the commencement of the flight; or (ii) if subparagraph (i) is not applicable - at the time at which the aircraft comes to rest after its next landing after the commencement of the flight; or, if the aircraft is destroyed, or the flight is abandoned, before either subparagraph (i) or subparagraph (ii) becomes applicable, at the time at which the aircraft is destroyed or the flight is abandoned, as the case may be. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 8 Meaning of "ship at sea"
8. For the purposes of this Act, a ship is taken to be at sea when it is not within: (a) the limits of a State or Territory; or (b) the limits of a foreign country. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - PART 2 PART 2 - OFFENCES
CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 9 Possession of equipment etc.
9. A person who has in his or her possession, in Australia, any substance listed in Table I or II in the Annex to the Convention, or any equipment or materials, knowing that the substance, equipment or materials are being used or are to be used in, or for, a dealing in drugs that: (a) is referred to in paragraph 6 (1) (a), (b) or (c); and (b) constitutes an offence against: (i) a law of the Commonwealth; or (ii) a law of a State or Territory; or (iii) a law of a foreign country; is guilty of an offence against this section and is punishable, on conviction, by imprisonment for a period not exceeding: (c) if the substance, equipment or materials are being used or are to be used in, or for, the manufacture, extraction or preparation of a psychotropic substance referred to in Part 2 of Schedule 3 - 5 years; or (d) in any other case - 10 years. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 10 Dealing in drugs on board an Australian aircraft
10. (1) A person is guilty of an offence against this section if: (a) the person, on board an Australian aircraft in flight, whether in or outside Australia, engages in conduct that is a dealing in drugs; and (b) the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory. (2) This section does not apply in relation to conduct engaged in by a person on board an Australian aircraft in flight between 2 places in the same State or in the same Territory.
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CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 11 Dealing in drugs on board an Australian ship
11. A person is guilty of an offence against this section if: (a) the person, on board an Australian ship at sea, engages in conduct that is a dealing in drugs; and (b) the conduct if engaged in by the person in a State or Territory would constitute an offence against a law of the Commonwealth. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 12 Dealing in drugs outside Australia
12. (1) A person is guilty of an offence against this section if: (a) the person engages, outside Australia, in conduct that is a dealing in drugs; and (b) the conduct constitutes an offence against the law of a foreign country; and (c) the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory. (2) A person may be charged with an offence against this section only if: (a) the person is present in Australia; and (b) if the person is not an Australian citizen: (i) no steps have been taken by the foreign country referred to in paragraph (1) (b) for the surrender of the person to that country; or (ii) proceedings taken by that country under the Extradition Act 1988 have not resulted in the person being surrendered to that country. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 13 Dealing in drugs outside Australia with a view to commission of offence in Australia etc.
13. A person is guilty of an offence against this section if the person engages, outside Australia, in conduct that is a dealing in drugs with a view to the carrying out: (a) in Australia; or (b) on board an Australian aircraft in flight outside Australia; or (c) on board an Australian ship at sea; of a dealing in drugs that constitutes an offence against a law of the Commonwealth, of a State or of a Territory. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 14 Conspiracy etc. outside Australia to commit offence inside Australia
14. A person who, by conduct engaged in outside Australia: (a) conspires, or attempts, to carry out in a State or Territory; or (b) aids, abets, counsels or procures, or is in any way directly or indirectly knowingly concerned in, or party to, the carrying out in a State or Territory of; a dealing in drugs referred to in subsection 6 (1) that constitutes an offence against a law of that State or Territory is guilty of an offence against this section and is punishable, on conviction, by the same penalty as would be applicable if the person were convicted of the first-mentioned offence. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 15 Penalties for offences against sections 10 to 13
15. (1) A person convicted of an offence against section 10, 11, 12 or 13 is punishable in accordance with this section. (Penalty where offence involves cultivation of opium poppy etc.) (2) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6 (1) (a), the penalty is imprisonment for a period not exceeding such period as is applicable in accordance with the following table: TABLE Kind of cultivation Maximum Period of Imprisonment If more than If not more than If not more than If not more 1000 plants 1000 but more 20 but more than 5 plants cultivated than 20 plants than 5 plants cultivated cultivated cultivated Cultivation of opium poppy and coca bush Life Life 25 years 10 years 5 years Cultivation of cannabis plant Life Life 10 years 5 years 2 years (Penalty where offence involves separation of opium etc. from plant) (3) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6 (1) (b), the penalty is imprisonment for a period not exceeding 10 years. (Penalty where offence involves manufacture etc., or possession for manufacture etc., of narcotic drug etc.) (4) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6 (1) (c) or (d), the penalty for the offence is imprisonment for a period not exceeding:
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(a) if the dealing is in respect of a narcotic drug or a psychotropic substance referred to in Part 1 of Schedule 3 - 10 years; or (b) if the dealing is in respect of a psychotropic substance referred to in Part 2 of Schedule 3 - 5 years. (Penalty where offence involves sale, supply, or possession for sale or supply, of narcotic drug etc.) (5) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6 (1) (e), the penalty is imprisonment for a period not exceeding: (a) if the dealing is in respect of a narcotic drug or a psychotropic substance referred to in Part 1 of Schedule 3 - such period as is applicable in accordance with the table set out at the end of this subsection; or (b) if the dealing is in respect of a psychotropic substance referred to in Part 2 of Schedule 3 - 2 years. TABLE Quantity of drug or substance Maximum Period of Imprisonment If a commercial quantity of Where cannabis In any other the drug or substance was sold or supplied case sold, supplied or possessed Life Life If a traffickable quantity of the drug or substance was sold, supplied or possessed 10 years 25 years If less than a traffickable quantity of the drug or substance was sold, supplied or possessed 2 years 5 years (Penalty where offence involves importation, exportation, or possession for importation or exportation, of narcotic drug etc.) (6) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6 (1)(f): (a) if the court is satisfied that: (i) the narcotic drug or psychotropic substance that is the subject matter of the dealing was imported into Australia, or exported from Australia, for the purpose of sale or supply; or (ii) the person possessed the narcotic drug or psychotropic substance for the purpose of importation into Australia, or exportation from Australia, for the purpose of sale or supply; the person is punishable as if the person had sold or supplied the drug or substance or possessed it for the purpose of sale or supply (as the case may be); or (b) if paragraph (a) does not apply - the penalty is imprisonment for a period not exceeding: (i) if the dealing is in respect of a narcotic drug or a psychotropic substance referred to in Part 1 of Schedule 3 - 2 years; or (ii) if the dealing is in respect of a psychotropic substance referred to in Part 2 of Schedule 3 - 12 months. (Penalty where offence involves possession of specified substance etc.) (7) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6 (1) (g), the person is punishable as if the person had been convicted of an offence against section 9. (Penalty for conspiring etc.) (8) Where the person committed the offence by: (a) conspiring, or attempting, to engage in; or (b) aiding, abetting, counselling or procuring, or being by act or omission in any way directly or indirectly knowingly concerned in, or a party to; or (c) inciting to, urging or encouraging; any conduct that is, under subsection 6 (1), a dealing in drugs, the person is punishable as if the person had actually engaged in that conduct. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - PART 3 PART 3 - MISCELLANEOUS
CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 16 Prosecutions
16. (1) Proceedings for the commitment of a person for trial on indictment for an offence against this Act may not be instituted without the consent in writing of the Attorney-General. (2) Even though a consent in accordance with subsection (1) has not been given in relation to an offence against this Act: (a) a person may be charged with an offence against this Act; and (b) a person may be arrested for such an offence, and a warrant for such an arrest may be issued and executed; and (c) a person so charged may be remanded in custody or on bail; but no further step in proceedings referred to in subsection (1) may be taken until such a consent has been given. (3) Subsection (2) does not prevent the discharge of the accused if proceedings are not continued within a reasonable time. CRIMES (TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES) ACT 1990 No. 97 of 1990 - SECT 17 Presumption that traffickable quantity etc. of narcotic drug etc. is for sale or supply
17. For the purposes of this Act, where a person:
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(a) has in his or her possession; or (b) imports into, or exports from, Australia; or (c) has in his or her possession for the purpose of importation into, or exportation from, Australia; a traffickable quantity or a commercial quantity of a narcotic drug or of a psychotropic substance specified in Part 1 of Schedule 3, it is presumed that: (d) the possession; or (e) the importation or exportation; or (f) the intended importation or exportation; as the case may be, is for the purpose of sale or supply, but that presumption is rebuttable.