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Published online by Cambridge University Press: 24 January 2025
Drug use is a matter of substantial public interest in Australia, and penalties for drug offences were greatly increased in all States in 1976. This article examines the degree to which the Commonwealth can intervene in the field of drug-control law, a field presently governed mainly by State criminal law. Current Federal involvement is mostly confined to Customs legislation, passed under the interstate and overseas trade and commerce power in section 51(i) of the Constitution. This placitum has been expansively interpreted by the High Court in the customs context, but the trade and commerce power has some limitations, and those who have proposed comprehensive national drug legislation suggest that it could be supported by the Commonwealth's power over external affairs. These possibilities are considered, and the author concludes that comprehensive legislation would survive constitutional challenge in the High Court. Some suggestions are also made as to penalties for drug use and dealing.
1 Drug Trafficking and Drug Abuse, Report from the Senate Select Committee (1971) 1.
2 These amendments became the Customs Act (No. 2) 1971 (Cth).
3 H.R.Deb. 1971, Vol. 75, 4284-4290.
4 Australian 12.8.75.
5 Sydney Morning Herald 16.8.75.
6 Daily Telegraph 3.8.77.
7 The Age 1.1.77.
8 Canberra Times 28.7.77.
9 E.g.H. J. Anslinger. Commissioner of Narcotics in the U.S.A.: see the detailed study of his efforts in Kaplan, Marijuana—The New Prohibition (1970); Schofield, The Strange Case of Pot (1971).
10 E.g.Leary,The Politics of Ecstasy (1970).
11 A narcotic is a drug which induces sleep; an opiate is a natural or synthetic derivative of opium. These terms are clearly most inaccurate for describing drugs such as stimulants, like cocaine and the amphetamines, or psychedelics, such as LSD or mescaline.
12 The definition adopted by the Canadian Le Dain Commission of Inquiry into the Non-Medical Use of Drugs is in general use. Itdefined a drug as “[a]ny substance that by its chemical nature alters structure or function in the living organism”: Interim Report (1971) 29-30, 431.
13 Gazette 30.12.05; Baxter v. Ah Way (1909) 8 C.L.R. 626, 627.
14 Cases listed under Customs and Excise in the Australian Digest (2nd ed.) Vol. 10. 78-79 prior to 1967 show a preponderance of Chinese defendants; Hill v. Donohoe (1911) 13 C.L.R. 224, is a notable exception.
15 S. 50 provides:
(1)The Governor-General may, by regulation, prohibit the importation of goods into Australia.
(2) The power conferred by the last preceding sub-section may be exercised
(a)by prohibiting the importation of goods absolutely;
(b)by prohibiting the importation of goods from a specified place; or
(c)by prohibiting the importation of goods unless specified conditions or restrictions are complied with.”
Sub-ss. (3) and (4) provide for licences to be issued for the importation of prohibited imports. By s. 51 “[g]oods, the importation of which is prohibited under the last preceding section, are prohibited imports.”
16 Hill v. Donohoe (1911) 13 C.L.R. 224, 226.
17 Milicevic v. Campbell (1975) 132 C.L.R. 307, infra p. 440.
18 Sub-s.(2). “Narcotic goods” are defined in s. 4(1) as “goods that consist of a narcotic substance”.
19 s.4(4).
20 S. 4(1). As mentioned supra at n. 11, the use of the term “narcotic” is incorrect, but nothing turns on this.
21 These penalties also apply to breaches of ss 50(4), 231(1) and 233A, but these offences are rarely charged.
22 Customs Act 1923, s. 2.
23 Customs Act (No. 2) 1971, s. 7.
24 (1911) 13 C.L.R. 224.
25 Now s. 233B(l)(c).
26 (1911) 13 C.L.R. 224, 226.
27 Id. 227, citing Lyons v. Smart (1908) 6 C.L.R. 143.
28 Ibid.
29 S. 51(i) gives the Commonwealth power to legislate with respect to “[t]Jrade and commerce with other countries, and among the States”. See Milicevic v. Campbell (1975) 132 C.L.R. 307, infra p. 440.
30 (1908) 6 C.L.R. 143.
31 Id. 154.
32 E.g. Wynes, , Legislative, Executive and Judicial Powers in Australia (5th ed. 1976) 191-192Google Scholar.
33 (1947) 75 C.L.R. 218.
34 (1911) 13 C.L.R. 224.Lyons v. Smart, supra n. 27, was also distinguished on the ground that s. 233 had been differently drafted then.
35 (1975) 132 C.L.R.307. The case is the subject of a case note in (1976) 7 F.L.Rev. 236.
36 S.233B(1C).
37 The head-note in the Australian Law Journal report of the case ((1975) 49 A.L.J.R. 195) indicates that the question of the plaintiff's knowledge of the nature of the goods in his possession (i.e. mens rea in the statutory offence) was also argued, but it is not discussed in the judgments.
38 McTiernan A.C.J., Gibbs, Mason and Jacobs JJ.
39 And/or the incidental power ins. 51(xxxix).
40 (1975) 132 C.L.R. 307, 309.
41 Burton v. Honan (1952) 86 C.L.R. 169.
42 This was the interpretation of Griffith C.J. in Hill v. Donoghoe, supra n. 26; it also found favour with some members of the High Court in R. v. Bull (1974) 131 C.L.R. 203.
43 (1975) 132 C.L.R. 307, 314-315. This view is also that of Mason and Jacobs JJ. at 317-318 and 321 respectively.
44 Id. 315.
45 Id. 316, citing Williamson v. Ah On (1926) 39 C.L.R. 95. See further infra p.445 n. 66 ff.
46 At least in its overseas aspect. The possibility that drugs will be traded interState is quite real, but is not the concern of the Customs Act as presently drafted, nor is it closely considered here.
47 (1975) 132 C.L.R. 307, 321.
48 (1953) 88 C.L.R. 353.
49 Id. 386.
50 (1954) 92 C.L.R.565. In this case, federal regulations governing the preparation of meat for export were upheld, although the meat was being processed in a South Australian meatworks.
51 (1975) 132 C.L.R. 307, 318. This approach is somewhat strange, as none of the other judgments take the point. as conceded.
52 Id. 320 (italics added).
53 Id. 321.
54 Ibid
55 Quaere whether this would extend to upholding federal legislation prescribing treatment regimes for heroin users, when all heroin in Australia is imported. Such legislation would certainly seem to come within Jacobs J.'s phrase “[t]he control of the presence of such imports in the community ... “ at 132 C.L.R. 307, 321.
56 318.
57 Otherwise para. (c) would be used.
58 Liversidge v. Anderson [1942] A.C. 206, 221; Glanville Williams, “Arrest for Felony at Common Law” [1954] Criminal Law Review 408,411; R. v. King [1970] S.A.S.R. 503.
59 It seems fair to describe this as a presumption, as proof of the reasonable suspicion (the basic fact) is to be treated as entailing federal jurisdiction over the matter (the presumed fact) when to found such jurisdiction one would otherwise need to prove some actual connection between the drugs and inter-State or overseas trade beyond a mere belief to that effect.
60 (1975) 132 C.L.R. 307, 310 and 313 respectively.
61 In introducing the 1971 amendments to the Customs Act in the House of Representatives, Mr Chipp, Minister for Customs and Excise, claimed that, in the drafting of para. (ca) and sub-s. (lB), care had been taken to protect the traditional rights of defendants:H.R. Deb. 1971, Vol.75, 3421-3422.
62 Problems for the prosecution also seem to have weighed heavily in the mind of Jacobs J. in Milicevic v. Campbell. It seems to the author that the question of whether the law will make the prosecution's task easier is even more irrelevant than the question of the law's justice.
63 39 C.L.R.95.
64 (5th ed. 1976) 132-133.
65 (1975) 132 C.L.R. 307, 317 per Gibbs J.
66 (1926) 39 C.L.R.95.
67 Drug Trafficking and Drug Abuse, Report from the Senate Select Committee(1971) 93, Recommendation 23. The matter was discussed at the meeting of Ministers on Drug Abuse on 26 March 1971, and it was agreed that heroin stocks in Australia should be withdrawn. All States agreed to phase out use of heroin by 1973, although the Australia Police reported in 1974 that 138 gms of heroin was stolen from legal sources in that year: Australia Police, Drug Abuse in Australia 1974 Technical Report No. 7, 37.
68 See the interesting American case of Turner v. U.S. (1970) 396 U.S. 398; 24 L. Ed. 2d 610 for a decision involving calculations of the amount of heroin imported.
69 Cannabis resin, and the compressed herbal form called “Bhudda sticks” are both imported: Department of Police & Customs, International Treaties on Narcotic Drugs: Australia 1974 (1975) 15.
70 According to the Department of Customs & Excise, Report of the Government of Australia for the Calendar Year 1973 on the Working of the International Treaties on Narcotic Drugs (1974) 10, customs officers seized some 1110 kg. of cannabis and cannabis resin, and 86 plants, while State police seized 925 kg. of the drug, and 14,095 plants.
71 The drugs could be stolen from a legal source, such as a chemist. The scope of the provision would be greatly increased if the words “in contravention of this Act” were deleted: quaere whether this would affect its constitutional validity.
72 Milicevic v. Campbell (1975) 132 C.L.R. 307, 321-322.
73 “Prohibited imports” is used in the sense of goods so designated by regulation, without the requirement that they in fact were imported.
74 Australia Police, Drug Abuse in Australia 1974 Technical Report No. 7,58-59.
75 Id. 8.
76 Some relate to offences involving several different drugs.
77 Bureau of Crime Statistics and Research Report (1975) 50.
78 S. 233B(4) of the Customs Act may limit double actions against the same defendant in some cases. It provides: “This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence.” My italics indicate the main limitations of this sub-section.
79 E.g. Crimes Act 1900 (N.S.W.), s. 556A.
80 It is possible that possession is outsides. 30(2) of the Acts Interpretation Act, because of its being a “status” rather than an act or omission: R. v. Heath (1810) 168 E.R. 750; R. v. Dugdale (1853) 118 E.R. 499; and more recently, R. v. Grant[1975] 2 N.Z.L.R. 165.
81 U.S. v. Lanza (1922) 260 U.S. 337; Bartkus v. Illinois (1959) 359 U.S. 121. Prosecution by two authorities within the same State is not permitted: Waller v. Florida (1970) 397 U.S. 387.
82 This rule is discussed in 4 A.L.R. Fed. 616.
83 R. v. Roche (1775) 168 E.R. 169; R. v. Aughet (1918) 13 Cr. App. R. 101.
84 Of the State legislation, only the Poisons Act 1971 (Tas.), s. 45 makes it an offence to import drugs into the State.
85 (1926) 37 C.L.R. 466, 489-490.
86 (1930) 43 C.L.R. 472.
87 (1926) 38 C.L.R. 441.
88 (1930) 43 C.L.R. 472, 483.
89 E.g. the Customs Act controls goods from outside the State; State law controls them inside.
90 58 C.L.R. 618.
91 Id. 631.
92 [1975] Qd.R. 215. The recent High Court decision of Jackson v. R. (1976) 9 A.LR. 65 does not discuss the inconsistency problem in depth.
93 The Post Office is under federal control under s. 51(v) of the Constitution.
94 (1937) 58 C.L.R. 618.
95 Id. 630.
96 [1975] Qd.R. 215, 217.
97 Id. 218.
98 Id. 222; R. v. Lowenthal; ex parte Blacklock (1974) 131 C.L.R. 338.
99 Id. 233.
1 This is accomplished by the statutory shifting of the onus of proof in sub-ss. (lA) and (lB) of s. 233B. See also s. 235(4).
2 Australian 12.8.75.
3 Possession, production and use of drugs, and dealing therein within the boundaries of any single State are clearly outside any inter-State power. Cf. the comments of Jacobs J. in Milicevic v. Campbell supra n. 55.
4 The powers of the federal legislature are defined by the Constitution; the prerogative powers of the Crown are not.
5 Wynes, op. cit. 89-90.
6 Acts Interpretation Act 1901 (Cth), s. 13(2).
7 The distinction between “hard” and “soft” drugs is essentially random, reflecting the speaker's prejudices; it serves to distinguish those drugs he considers most “evil” from the others. Usage is not consistent.
8 S. 4(2) of the Public Health (Prohibited Drugs) Ordinance 1957 (A.C.T.) (as amended) now provides such a maximum penalty for use of cannabis, or possession of up to 25 gms thereof.
9 Australian 12.8.75.
10 R. v. Burgess; ex parte Henry (1936) 55 C.L.R. 608; Airlines of New South Wales Pty Ltd v. New South Wales (No. 2) (1965) 113 C.L.R. 54.
11 Wynes, op. cit. 297-298 (italics added).
12 See the United Nations Universal Declaration of Human Rights (1948).
13 E.g. the different bases suggested for customs powers in Lyons v. Smart (1908) 6 C.L.R. 143.
14 Attorney-General for Canada v. Attorney-General for Ontario[1937] A.C. 326, 347-348; Howard, Australian Federal Constitutional Law (2nd ed. 1972) 441 ff.
15 E.g. the Single Convention prescribes no scale of penalties (Art. 36) and a Party is not “precluded from adopting measures of control more strict or severe than those provided by this Convention ... “ (Art. 39).
16 Art. 35: “Action against the illicit traffic
Having due regard to their constitutional, legal and administrative systems, the Parties shall:
(a)Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;
(b)Assist each other in the campaign against the illicit traffic in narcotic drugs;
(c)Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic;
(d)Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and
(e)Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel.”
Art. 36: “Penal provisions
1.Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.” (Clauses 2-4 omitted).
17 Admirably discussed by Howard, op. cit. 441-460.
18 (1975) 50 A.L.J.R. 218.
19 S. 6.
20 Ss 7 and 12 respectively.
21 (1975) 50 A.L.J.R. 218, 221.
22 Both are enacted as Schedules to the Act.
23 Id. 221.
24 Id. 223.
25 Id. 233 and 265 respectively.
26 Id. 233.
27 Id. 256.
28 See the views on sentencing of drug offenders expressed by Murphy J. in Bull v. R. (1975) 50 A.L.J.R. 2, 3.
29 (1975)50 A.L.J.R. 218, 277-278.
30 The First International Opium Convention dates back to 1912.
31 This is particularly true in relation to cannabis: see e.g. Kaplan, Marijuana: The New Prohibition (1970).
32 “Legalisation” is here used to include decriminalisation, as in the laws of some American States; see infra nn. 43, 44.
33 For control of the plant Cannabis Sativa L., see Noxious Weeds Ordinance 1921 (A.C.T.).
34 This substance is the major active ingredient of cannabis.
35 E.g. Poisons Act 1966 (N.S.W.), s. 45A, which presumes an intent to deal in drugs from the amount in the accused's possession. In the U.S., such provisions are held violative of the Bill of Rights: People v. Serra (1974) 223 N.W. 2d 28.
36 Canberra Times 13.11.74.
37 Canberra Times 1.8.74.
38 Perhaps the fact that the accused was found in possession of some 5 kg. of cannabis may have impressed the Court with the need to penalize him. In the event, Burton was fined $800 (the maximum) and given a 12 month suspended sentence.
39 Canberra Times 2.8.74.
40 Canberra Times 5.11.74.
41 This is in line with the various State laws which have no requirement that prescribed substances be drugs at all, e.g. Poisons Act 1966 (N.S.W.), ss 8 and 24.
42 s.4(2).
43 At the time of writing, 8 States had decriminalised marijuana use in this way: Alaska, California, Colorado, Maine, Minnesota, Ohio, Oregon and South Dakota. Numerous other States are contemplating similar changes. See (1976) The Leaflet Vol. 5, No. 1, the official publication of the American National Association for the Reform of the Marijuana Laws (NORML).
44 S. 1.04 of the 1962 Draft of the Model Penal Code states: “An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated . . . or if no other sentence than a fine, or fine and forfeiture or other civil penalty is authorised upon conviction. . . . A violation does not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.” See also recommendations of U.S. National Commission on Marihuana and Drug Abuse, First Report, Marihuana: a Signal of Misunderstanding (1972) 151 ff.
45 Illegally obtained, or retained, evidence is not admissible in criminal matters in U.S. courts.
46 Supra p. 452 n. 9.
47 See generally, Packer, The Limits of the Criminal Sanction (1969) and Becker, Outsiders (1973).
48 See the reported views of the Attorney-General for N.S.W., the Hon. F. Walker, Sunday Telegraph 16.6.76 and Judge Goran, Canberra Times 21.4.75.
49 It is highly doubtful whether any “social disapproval” penalty is appropriate in cases of habituation where the individual cannot voluntarily discontinue drug use readily.
50 The steady increase in drug use throughout the world indicates that current repressive measures are quite ineffective, despite their harshness: see the figures produced for N.S.W. by the Bureau of Crime Statistics and Research from 1971-1975.
51 This difficulty increases if users cannot be bullied into revealing their sources by threats of prosecution. At present, friendship for the supplier and fear of losing the supply, are effective barriers to information being given to police.
52 E.g. those proposed by the Commonwealth in 1975. For an interesting commentary on penalties for drug use in historical times, see Inglis, The Forbidden Game (1975).
53 If he can increase his income by legitimate means, there is little problem, but if he must turn to property crime to provide the wherewithal to purchase his drug, it can truly be said that the law is producing crime rather than controlling it.