Discussion Paper - Implementation of Model Schedules for Commonwealth Serious Drug Offences

8/6/2019 Discussion Paper - Implementation of Model Schedules for Commonwealth Serious Drug Offences

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Model Drug Schedule Discussion Paper 1 of 41

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DISCUSSION PAPER

Implementation of model schedules forCommonwealth serious drug offences

Part I Introduction .......................................................................................................................... 2

Part II Drug offences ....................................................................................................................... 6Part III Plant offences ..................................................................................................................... 12Part IV Precursor offences .............................................................................................................. 14Part V Legislative Structure .......................................................................................................... 18Part VI Legitimate use defences ..................................................................................................... 20Attachment 1: Consolidated table of serious drug offences in the Criminal Code ............................ 22Attachment 2.1: The model scheduleslist of controlled drugs ....................................................... 25Attachment 2.2: The model schedulesdefinitions of controlled drugs, controlled plants andcontrolled precursors .......................................................................................................................... 35Attachment 2.3: 15 controlled drugs listed in section 314.1 of the Criminal Code ........................... 37Attachment 2.4: The model scheduleslist of controlled plants ...................................................... 38

Attachment 2.5: The model scheduleslist of controlled precursors ............................................... 39


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PART I INTRODUCTION

Introduction

1. In presenting the Governments National Security Statement in December 2008, the formerPrime Minister, the Hon Kevin Rudd MP, identified organised crime as a growing and continuingnational challenge.1 The Government recently declared its commitment to target the criminaleconomy at the launch of the Organised Crime Strategic Framework.2 One means of achieving thisoutcome is by targeting one of the primary markets of organised crimethe importation, domesticproduction and distribution of illicit drugs.3

Background

Development of model offences

2. In 1990, the Standing Committee of Attorneys-General (SCAG) established a committee todevelop a national model criminal code for Australian jurisdictions, the Model Criminal CodeOfficers Committee (MCCOC).

3. Beginning in 1992, MCCOC (now known as the Model Criminal Law Officers Committee)published a series of reports creating specific classes of model offences. In 1998, MCCOCpublished model offences for drug trafficking and the commercial manufacture and cultivation ofdrugs (the model offences).4

4. In 2002, Commonwealth, State and Territory Governments resolved at the Leaders Summiton Terrorism and Multi-jurisdictional Crime to implement the model offences recommended in theMCCOC report.5

5. In its 1998 report, MCCOC acknowledged that devising complete schedules specifying thedrugs, plants and precursors to which the model offences would apply involved issues ofconsiderable technical complexity which lie at the fringes, or beyond, the Committees area ofexpertise.6 Accordingly, MCCOC recommended that a national committee of experts developcomprehensive model schedules to operate under the framework of the model offences.

Development of model schedules

6. In February 2005, the Intergovernmental Committee on Drugs Scheduling Working Party onControlled Substances (the Working Party) embarked on the task of developing model schedules

(that is, lists of substances to be classified as either controlled drugs, plants or precursors). TheWorking Party was established under the auspices of the Ministerial Council on Drug Strategy, the

1 Hansard, House of Representatives, 4 December 2008, page 125492 3 Parliamentary Joint Commission on the Australian Crime Commission,Inquiry into legislative arrangements to

outlaw serious and organised crime groups, August 2009, page 124 Model Criminal Code, Chapter 6 -Serious Drug Offences, October 1998

5 Leaders Summit on Terrorism and Multi-jurisdictional Crime, Cross-Border Investigative Powers for Law

Enforcement Report, November 2003, page i

6 Model Criminal Code, Chapter 6 -Serious Drug Offences, October 1998, page 249


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peak policy and decision making body in relation to licit and illicit drugs in Australia. It consistedof representatives from industry and relevant State and federal agencies.

7. The Working Party developed model schedules for drugs, plants, and precursors(the model schedules).7 The model schedules were designed to provide comprehensive coverage of

drugs, plants, and precursors for which illicit markets exist, or have the potential to develop, withinAustralia.

8. In 2007, the Ministerial Council on Drug Strategy endorsed the model schedules and notedthat the Australian Government and State and Territory jurisdictions would consider adopting themin the interest of national consistency of legislation.8

9. To date, the model offences have been implemented by the Commonwealth, Victoria,South Australia, Tasmania (partially), and the Australian Capital Territory. Only South Australiahas introduced the model schedules for drugs, plants, and precursors, although these schedulescontain some modifications.

10. Implementation of the model schedules at the Commonwealth level would makeCommonwealth drug laws more comprehensive and may encourage other jurisdictions to adopt acommon approach across Australia. Implementation may also assist Australia to meet itsobligations at international law in relation to the regulation of illicit drugs, including under theSingle Convention on Narcotic Drugs 1961, Convention on Psychotropic Substances 1971, andUnited Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

1988 (TINDAPS Convention).

11. However, consideration needs to be given to the impact that implementation of the modelschedules might have on the existing Commonwealth regulatory framework.

Commonwealth serious drug offences

12. In 2005, theLaw and Justice Amendment (Serious Drug Offences and Other Measures)Act 2005 (the SDO Act) introduced the model offences in Part 9.1 of the CommonwealthCriminal Code Act 1995 (the Criminal Code) (Attachment 1).

13. The SDO Act also moved existing offences under the Customs Act 1901 (Customs Act) forthe import/export of controlled substances and placed them in the Criminal Code. This ensured allserious drug offences were in a central statute, keeping the Customs Act as primarily a regulatorystatute.

14. The offences in Part 9.1 of the Criminal Code are divided into domestic offences (referred toas controlled drugs, plants and precursors) and import/export offences (referred to as bordercontrolled drugs, plants and precursors). The import/export offences criminalise conduct inrelation to much smaller quantities of drugs or precursors than domestic offences. For example, amarketable quantity of amphetamines is 250.0 grams for a domestic offence, compared with2.0 grams for an import/export offence. This reflects the Commonwealths policy position aboutthe seriousness of these offences and the need to prevent and deter the entry of illicit drugs into thecommunity.

7 See Attachments 2.1, 2.4 and 2.58 Ministerial Council on Drugs Strategy, Resolution 16, May 2007


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15. Most of the serious drug offences are divided into three levels of seriousness. This is basedon the amount of drug involved, ranging from a commercial quantity (the most serious) to amarketable quantity, then to a less than marketable quantity.

16. The threshold quantities of border controlled drugs are based on the quantities that applied

to the import/export offences when they were contained in the Customs Act. The thresholdquantities of border controlled precursors are calculated according to the quantity of the precursorrequired to manufacture the equivalent threshold of a border controlled drug.

17. The threshold quantities of controlled drugs are intended to maintain consistency with thethreshold quantities prescribed by other jurisdictions that had implemented the MCCOC modeloffences. The threshold quantities of controlled precursors are set to accord with the amount of thecontrolled precursor required to manufacture the corresponding threshold quantity of a controlleddrug.9

18. In the absence of model schedules (which were not developed until 2007), the SDO Act

included a short schedule of just 15 common controlled drugs for domestic offences and a longerschedule of border controlled drugs for import/export offences, reflecting the already establishedlaw based on the existing Customs Act offences. The SDO Act also introduced schedules forcontrolled and border controlled plants and precursors. The Explanatory Memorandum to theSDO Act expressed the Governments intention to amend the Criminal Code following the reviewof the national drug schedules.10

Structure of the discussion paper

19. Part II of this discussion paper describes the existing definitions of border controlled drugand controlled drug in the Criminal Code. It questions how the model schedule for controlled

drugs, (which makes no such distinction) would fit within these definitions. It also considerswhether classifying some substances as both controlled drugs and precursors, and listing quantitiesof pure and mixed substances, is suitable in the Criminal Code context.

20. Part III of this discussion paper describes the existing definition of border controlled plantand controlled plant in the Criminal Code. It notes that the model schedule of controlled plantsexpands the list of plant and fungi species, and questions the suitability of classifying the plantCatha edulis (commonly known as khat) as a controlled plant.

21. Part IV of this discussion paper examines similar issues to those in Part II. It describes theexisting definitions of border controlled precursor and controlled precursor in the

Criminal Code. It questions how the model schedule for controlled precursors (which makes nosuch distinction) would fit within these definitions. It also considers whether classifying somesubstances as both controlled drugs and precursors, and listing quantities of pure and mixedsubstances, is suitable in the Criminal Code context. It also questions whether Customs legislationwould require examination in light of the model controlled precursor schedule, compares thedefinition of precursor in the model schedule with the definition of immediate precursor in the

Criminal Code, and asks whether the existing regulatory framework is adequate to support theexpansion of the definition ofprecursor.

9Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005, Explanatory

Memorandum, pages 107 to11010Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005, Explanatory

Memorandum, page 105


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22. Part V of this discussion paper examines the structure of Part 9.1 of the Criminal Code. Itquestions whether the current provisions for interim regulations and emergency determinations arenecessary and effective and suggests alternative structures.

Impact on industry

23. The Government recognises the potential for any move to implement the model schedules tohave costs or adverse impacts on industry. If the model schedules were to be implemented inCommonwealth legislation, these impacts would be identified and carefully considered through:

the completion of a preliminary assessment to establish the extent to which the proposal islikely to involve an impact on business and individuals or the economy, and

if the proposal would have a significant impact on business and individuals or the economy,a more detailed analysis documented in a Regulation Impact Statement.

Invitation to comment

24. The Government seeks views on whether the model schedules and the quantities of drugs,plants and precursors recommended by the Working Party in 2007, and endorsed by theMinisterial Council on Drug Strategy, should be implemented in Part 9.1 of the Criminal Code, andhow this should be achieved.

25. Comments are also sought on whether it is necessary to align domestic and border controlsin the Criminal Code with those in the relevant Customs legislation (that is, the Customs(Prohibited Imports) Regulations 1956, the Customs (Prohibited Exports) Regulations1958 and theCustoms Regulations 1926).


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PART II DRUG OFFENCES

26. Below is a summary of the border controlled and controlled drug offences in theCriminal Code.

Border controlled drug offences Division

Importing or exporting a border controlled drug 307

Possessing an unlawfully imported border controlled drug 307

Possessing a border controlled drug reasonably suspected of having been unlawfully imported 307

Procuring a child to import/export a border controlled drug 309

Controlled drug offences Division

Trafficking a controlled drug 302

Commercial manufacture of a controlled drug 305

Possessing a controlled drug 308

Possessing substance/equipment/instructions to commercially manufacture a controlled drug 308

Supplying a controlled drug to a child, including for trafficking 309

A. Drug definitions

27. The existing definition ofcontrolled drug in section 314.1 of the Criminal Code iscomprised of:

a listing of 15 named substances, and

an extended definition of the substances which includeso stereoisomerso structural isomers having the same constituent groups as a listed controlled drugo alkaloids, oro a structural modification of a substance listed as a controlled drug, by the addition of

one or more specified groups, or modification by other specified chemicalmodifications.

28. The existing definition ofborder controlled drug in section 314.4 of the Criminal Code iscomprised of:

a listing of 155 named substances, and

an extended definition of the substances which includeso stereoisomerso structural isomers having the same constituent groups as a listed border controlled

drugo alkaloids, oro a structural modification of a substance listed as a border controlled drug, by the

addition of one or more specified groups, or modification by other specifiedchemical modifications.

29. By contrast, the definition of controlled drugs in the model schedules consists of a singlelisting of 256 named substances. (Attachment 2.1). An extended definition of drug(Attachment 2.2) includes salts, derivatives and isomers, and any analogue or homologue to a


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listed drug. The application of this broader definition would substantially increase the number ofsubstances caught by the schedules.

30. Commonwealth implementation of the model controlled drug schedule gives rise to severalquestions, including whether:

(a) a single schedule of controlled drugs is appropriate, given the existing distinction betweencontrolled and border controlled drugs in the Criminal Code

(b) the way certain substances have been listed in the model schedules (as both controlled drugsand precursors) is appropriate, and

(c) the current listing of pure and mixed quantities of substances in the model schedules should bemaintained or expanded.

B. Single schedule for border controlled and controlled drugs

31. Adopting a single schedule for border controlled and controlled drug offences needs to becarefully considered because of the current differences in the construction of border controlled drugoffences and controlled drug offences in the Criminal Code. These differences reflect theseriousness of prosecuting possession or trafficking of border controlled drug offences as a keyelement in the Commonwealths stance on protecting Australia from serious drugs and stopping

them entering the community.

32. Proof of intent differs between border controlled drug and controlled drug offences. Forimporting and exporting border controlled drug offences, commercial intention is not an element ofany of the offences. Instead, the absence of commercial intention is available as a defence for someoffences. By contrast, for controlled drug offences, intent to sell (or belief that another intends tosell) is an element of the offences.

33. Threshold quantities of drugs also differ according to whether the offence is in relation to aborder controlled drug or a controlled drug. Border controlled drug offences do not refer to atrafficable quantity. The marketable quantity for border controlled drugs is set at a much lowerlevel than that set for controlled drug offences. In fact, the marketable quantity for a bordercontrolled drug offence is close to the level of a trafficable quantity for controlled drug offenceswithout actually using that term.

34. In the model schedules, the level at which a marketable quantity of border controlled drug isset would increase markedly (for example, in relation to amphetamines) and the level at which acommercial quantity is set would in some instances, be reduced. The differences in quantities usedcurrently and proposed under the model schedules in relation to the 15 controlled drugs currently inthe Criminal Code is shown at Attachment 2.3.

35. An effect of adopting the model schedules for both controlled and border controlled drugoffences would be to reduce the penalties applying to the importation of substances most commonlyimported in moderate (ormarketable) quantities.

36. For example, currently a marketable quantity of the border controlled drug cocaine istwo grams. A marketable quantity of cocaine under the model schedules is 100 grams. If the modelschedules were applied to border controlled drug offences, a person who imported 90 grams ofcocaine would face a maximum penalty of 10 years imprisonment for the offence of importing aless than marketable quantity (contrary to section 307.3 of the Criminal Code). Under the current


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offence applicable to the same conduct (importing a marketable quantity: section 307.2), themaximum penalty that would apply is 25 years imprisonment. Further, if the person could establishthat he or she neither intended, nor believed that another person intended, to sell any of the bordercontrolled drug (under subsection 307.3(3)), the person would only be liable to a maximum penaltyof two years imprisonment (for the offence in section 307.4).

Question B

(i) If the model controlled drug schedule was adopted in Commonwealth legislation, should the

distinction between controlled and border controlled drugs be maintained?

(ii) If so, should all of the substances currently listed in the model controlled drug schedule be

included in both the controlled drug and border controlled drug tables in Division 314 of

the Criminal Code?

(iii) If so, should the trafficable amounts (as currently prescribed in the model schedule) be

increased to be commensurate with the current marketable quantities for border controlleddrugs in the Criminal Code?

C. Listing of substances

37. The classification of certain substances in the model schedules gives rise to two situations ofpossible ambiguity.

Certain substances appear in both the drug and precursor lists

38. Some substances, including ephedrine, lysergic acid, ergotamine and pseudoephedrine,appear in both the model controlled drug and precursor lists, to reflect their status as substancesthat are utilised as illicit drugs in their own right in certain circumstances and precursor chemicalsin other circumstances.11

39. If the model schedules were to be adopted in Commonwealth legislation, it would beundesirable for these substances to remain in both the drug and precursor schedules. Firstly,because it has the potential to create confusion amongst the public as to how these substances are tobe regarded, and secondly, because it may lead to the imposition of different penalties, dependingon the charge laid.

40. Currently, the maximum penalties for the offences of importing border controlled precursorsand pre-trafficking controlled precursors (25 years imprisonment) are lower than for thecorresponding importation offences for border controlled drugs and trafficking offences forcontrolled drugs (life imprisonment). Given the different penalty structure, there would be potentialfor injustice as a defendant could face different penalties for the same conduct in relation to thesame substance, depending on whether he or she was charged under precursor or drug offences.The following table shows the difference in the respective maximum penalties for drugs andprecursors.

11 Covering note to the Model Schedules and Quantities, recommended by the Inter-Governmental Committee on Drugs

Scheduling Working Party on Controlled Substances, 16 May 2007


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Table 1: Serious drug penalties for drugs and precursors

Quantity Drugs Precursors

Commercial Life/7500 penalty units* 25 years/5000 penalty units*

Marketable 25 years/5000 penalty units* 15 years/3000 penalty units*

Less than marketable 10 years/2000 penalty units* 7 years/1400 penalty units*

* A penalty unit is currently $110 (section 4AA of the Crimes Act 1914 (Cth))

41. To avoid ambiguity, it may be preferable that substances such as ephedrine, lysergic acid,ergotamine and pseudoephedrine are listed as controlled precursors only. This would accord withthe United Nations TINDAPS Convention, which treats these substances as precursors. It would

also reflect the reality that criminal activity associated with these substances would predominantlybe as precursors, given that it is less likely that these substances would be illegally possessed for thepurpose of direct illicit consumption. As these substances may have medical use (except perhapsfor lysergic acid), a legitimate use defence may be appropriate (as discussed below under Part VI)to ensure that persons using precursors for legitimate medical, industrial and other uses are notcaptured. This is particularly so as these types of persons might not be covered by the existingdefences in the Criminal Code.

Extended definition of drug may result in substances falling within multiple definitions

42. The extended definition of drug in the model schedules is wide, including salts,

derivatives, isomers, analogues or homologues. It may mean that some model controlled precursorswill also fall within the definition of controlled drugs, resulting in some substances being assignedthe status of a controlled drug, despite the very low likelihood that these substances would bedirectly consumed (for example, some industrial chemicals). This could result in a defendantbecoming subject to a more serious charge for which he or she would otherwise not have beenliable.

43. To remedy this, consideration could be given to narrowing the definition ofdrug so that itcaptures only listed substances, while adopting an extended definition ofprecursor. This wouldensure that chemicals that would otherwise fall within the extended definition of drug as well asthe definition ofprecursor are simply regarded as controlled precursors and are subject to the

lower penalty regime applicable to those substances (and to which the safeguards in relation tolegitimate uses apply).

44. Alternatively, it may be possible to provide a clarifying provision in the legislation to ensurethat where a person is charged in relation to a controlled drug, the substance continues to be treatedas such, despite the possibility for another classification of the substance under the extendeddefinition. This will prevent defendants charged with a drug offence from exploiting the scheduledefinitions by arguing that they should be charged with a precursor offence, hence becoming liableto a lower penalty. A similar clarifying provision could be created in relation to precursors, toprevent the prosecution from asserting that defendants should be liable for a more serious charge(and therefore penalty) because the substance was capable of being a controlled drug.


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Question C

(i) Should there be further amendment to the extended definition provisions for model

controlled drug and controlled precursor lists to ensure that substances are listed as either

a controlled drug or a controlled precursor, and not both?

(ii) If so, where a substance fits both the extended definition of a precursor and the extended

definition of a drug, should it be dealt with as a drug and therefore attract higher penalties?

(iii) Are there circumstances in which a substances fitting the extended definitions of precursors

and drugs should be dealt with as a precursor?

(iii) Is the proposed definition of controlled drug appropriate in relation to both the namedsubstances and the extended definition of associated forms of the named drugs?

D. Pure/mixed quantities

45. Currently, under the Criminal Code, the burden on the prosecution to prove the amount ofan illicit substance differs depending on whether the substance is a drug or precursor.

46. Subsections 312.1(1) and 312.1(3) of the Criminal Code provide that the prosecution mayprove the quantity of a controlled drug or border controlled drug (respectively) by proving that themixture contains the specified pure quantity or, if an amount in a mixture is specified, by provingthat (gross) quantity of the mixture.

47. By contrast, subsections 312.1(2) and (4) provide that the prosecution may prove thequantity of a controlled precursor or border controlled precursor (respectively) by proving that themixture contains the specified pure quantity of the precursor.

48. The model controlled drug schedule defines drugs in terms of mixed quantities, as well asretaining a list of pure quantities for 17 key illicit drugs (such as heroin and methylamphetamine).This reflects the realities of the commercial illicit market. Where drugs have an established illicitmarket, quantities are set by reference to the market. Where there is evidence for the developmentof illicit trade in a drug for which there is no established Australian market, quantities are set byreference to comparable drugs with comparable pharmacological effect, and where there is no

established Australian market and no evidence of potential development of such a market, quantitiesare not specified.12

49. To explain the rationale for including mixed and pure quantities for certain substances, thecovering note to the Model Schedules gives the following example:

methylamphetamine has a marketable pure quantity of 0.1kg. At an average street levelpurity of 20%, a quantity of 0.1kg methylamphetamine can be diluted to a total volume of




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0.5kg. Hence 0.5kg of street level drug is equivalent to 0.1kg pure drug. This approachprovides coverage for those who deal at street level and those who deal higher up the chain. 13

In other words, an offence in relation to possession of methylamphetamine can be prosecutedat the marketable (pure) quantity to target those higher up the drug distribution chain, or at a

marketable (mixed) quantity to target a street level dealer.

50. This feature of market chain dilution is reflected in the different ratios of the pure to mixtureamounts for some drugs between the commercial quantity and the marketable quantity. Forexample, a commercial quantity of heroin is 750g pure or 1 kg in mixture - giving a purity ratio of75%, but a marketable quantity is 100g pure or 200g in a mixture, giving a purity ratio of 50%.Similarly, a commercial quantity of MDMA (ecstasy) is 750g pure or 1kg in a mixture, giving apurity ratio of 75%, but a marketable quantity is 100g pure or 500g in a mixture giving a purity ratioof 20%.

51. The prescription of mixed quantities for all drugs is an important reform. It would reduce

the burden on forensic services to prove the amount of a controlled drug in a mixture.

52. If the model controlled drug schedule was introduced in Commonwealth legislation, twofactors would require consideration.

53. First, there may be cases at the margins where the amount of the mixture may meetthe threshold amount for a higher penalty, but the defendant will seek to have the substanceanalysed in the hope that the pure amount is less than the specified threshold. A suitable legislativeresponse to such a case would need to be determined.

54. Second, the model controlled drug schedule only lists pure quantities for a small number ofsubstances. The Working Party indicated that this was because there was a lack of historical basison which to calculate pure quantities for all substances listed in the model schedules, and substancesfor which no pure quantities listed are less often seen in the type of illicit markets more commonlyobserved for the key drugs of abuse.14 Notwithstanding this rationale, it may be desirable to listpure quantities in addition to mixed quantities for all substances in order to address the situationdescribed in the previous paragraph.

Question D

(i) Are the specified pure quantities for controlled drugs in the model schedules appropriate?

(ii) Is there a benefit in specifying pure quantities for other controlled drugs in addition to the

17 already specified?

(iii) Is there a benefit in specifying either a pure quantity or a quantity in a mixture, or both?


Scheduling Working Party on Controlled Substances, 16 May 200714 Covering note to the Model Schedules and Quantities, recommended by the Inter-Governmental Committee on Drugs



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PART III PLANT OFFENCES

55. The border controlled and controlled plant offences are summarised in the tables below.

Border controlled plant offences Division

Importing or exporting border controlled plants 307

Possessing unlawfully imported border controlled plants 307

Possessing a border controlled plant reasonably suspected of having been unlawfully imported 307

Procuring children to import/export border controlled plants 309

Controlled plant offences Division

Cultivating controlled plants for a commercial purpose 303

Selling controlled plants within Australia 304

Possessing plant material, equipment or instructions for commercial cultivation of controlled

plants

308

E. Plant definition

56. The current definition of controlled plant in section 314.2 of the Criminal Code is anyplant of the genus Cannabis. Border controlled plant is defined in section 314.5 to include plantsfrom seven different genera and species, including cannabis and opium poppies.

57. The definition of controlled plant in the model schedules is divided into two parts. Itincludes all plants currently named in the sections 314.2 and 314.5 of the Criminal Code, plus anadditional eight plants, including Catha edulis (commonly referred to as khat).

58. If the list of controlled plants in the model schedules were adopted in Commonwealth

legislation, a particular issue for consideration is the legal status of khat.

59. Khat contains two substances, cathine and cathinone, which were placed under internationalcontrol in 1986 by inclusion in the United Nations Convention on Psychotropic Substances (1971).Having ratified the Convention, Australias international obligations require controls to be exercisedover the importation and exportation of certain designated substances, including khat. Theimportation of khat is subject to regulation 5 of the Customs (Prohibited Imports) Regulations 1956.Importation is prohibited unless the importer holds an import permit from the Australian Quarantineand Inspection Service (AQIS) and a licence and permit issued by the Office of Chemical Safety(OCS).

60. Khat was the subject of a resolution by the Intergovernmental Committee on Drugs on18 September 2008, which noted that current legislative controls at Federal and State and Territorylevels were considered adequate by the Committee.

61. Although there appears to be consensus about the suitability of present regulatory controlsover khat, States and Territories have not taken a consistent approach to the issue. Khat is not acontrolled substance in three Australian jurisdictions. It is therefore not clear whether it isappropriate for the Commonwealth to classify this plant as a controlled plant, despite its listing inthe model controlled plant schedule.


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Question E

(i) Is an expanded list of plants appropriate for use in relation to plant offences?

(ii) Given the Intergovernmental Committee on Drugs resolution, should khat be omitted fromthe model schedules?


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PART IV PRECURSOR OFFENCES

62. The border controlled and controlled precursor offences in the Criminal Code aresummarised in the tables below.

Border controlled precursor offences Division

Importing or exporting border controlled precursors 307

Procuring a child to import/export border controlled precursors 309

Controlled precursor offences Division

Pre-trafficking a controlled precursor 306

Importing or exporting border controlled precursors 307

Possessing a controlled precursor with intent to manufacture a controlled drug 308

Procuring a child to pre-traffic a controlled precursor 309

63. The definition ofcontrolled precursor in section 314.3 of the Criminal Code lists12 substances. There is also an extended definition which includes substances that are a salt or esterof a precursor.

64. The definition ofborder controlled precursor in section 314.6 of the Criminal Code lists14 substances. There is also an extended definition which includes a salt or ester of a namedprecursor, as well as chemicals or compounds that are themselves an immediate precursor to any ofthe precursors.

65. By contrast, the definition of controlled precursor in the model schedule (Attachment 2.4)includes a list of 102 substances and an extended definition including any preparation, admixture,extract or other substance containing any proportion of a precursor. The application of this broaderdefinition would substantially increase the number of substances captured by the schedules.

66. Commonwealth implementation of the model controlled precursor schedule gives rise to anumber of questions, including whether:

the way certain substances have been listed in the model schedules (for example, certainsubstances are listed as both controlled drugs and precursors) is appropriate

Customs Regulations might require consequential amendment

the definition of precursor in the model schedule captures all substances requiring prohibition,and

the current references to mixed quantities of substances (and lack of reference to puresubstances) in the model controlled precursor schedule should be maintained, given therequirement to prove precursors in the Criminal Code.

F. Listing of substances

67. As noted in Part C, certain substances appear in both the model drug and precursor lists.This has the potential to create confusion and may lead to the imposition of different penalties forthe same conduct, depending on the charge laid.


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G. Customs legislation

68. If the Commonwealth were to implement the model controlled precursor schedules,consequential amendments to Customs legislation may be required.

69. Currently, the Customs (Prohibited Imports) Regulations and the Customs (ProhibitedExports) Regulations apply to only a small number of the substances listed as controlled precursorsin the model schedules. If the model schedule for controlled precursors was adopted intoCommonwealth legislation and applied to the definition of border controlled precursor, it may benecessary to consider the implications of not adopting the same list of substances in the PI/PERegulations. Relevant issues include that:

Customs and Border Protection would have no power to seize substances that are in themodel schedule but not in the PI/PE Regulations (except under warrant as a forfeited goodunder the Customs Act)

an importer or exporter may still be liable to prosecution under the Criminal Code in relation

to substances that are not prohibited imports or exports, and expansion of the controlled and border controlled precursors in the Criminal Code may have

an impact on industry even if the PI/PE Regulations are not amended, and therefore thealignment of the two could clarify the requirements with which industry must comply.

70. Consideration should be given to the extent to which the model schedules for controlledprecursors, if adopted by the Commonwealth, would apply to border controlled precursors. Further,because any decision to expand the number of substances listed as prohibited imports or exports islikely to affect industry, the regulatory burden imposed on business would also need to be carefullyconsidered.

Question G

Should the substances currently regulated by Customs Regulations be aligned with those in the

Criminal Code, if the Criminal Code was amended to include all of the substances listed in the

model controlled drug schedule?

H. Definition

71. The extended definition of precursor in the model controlled precursor schedule (whichincludes any preparation, admixture, extract or other substance containing any proportion of aprecursor) does not include the concept of immediate precursor that exists in subsection 314.6 ofthe Criminal Code (in relation to border controlled precursors).

72. Commonwealth adoption of the model controlled precursor schedule would requireconsideration of whether it is necessary to include the concept of an immediate precursor in thedefinition of controlled precursors to ensure that all forms of precursors are captured. Forexample, the chemical MMDMG (2-methyl-3-(3,4-methylenedioxy) phenyl-methyl glydicate) isan immediate precursor to 3, 4-MDP2P (3,4-methylenedioxyphenyl-2-propanone) which, in turn, isa precursor to Ecstasy/MDMA (3,4-Methylenedioxymethlyamphetamine). Without the immediate

precursor definition, MMDMG would not be captured in the definition of controlled precursor.


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73. It is important to note that the extended definition would significantly expand the number ofsubstances capturedby the definition of precursor, and may capture some substances with noapplication as illicit precursors. Consideration would need to be given to whether all substancesshould in fact be captured, or whether only substances identified as a high risk should be captured.

74. If the definition is to be flexibly applied at an administrative level, it may be appropriate toestablish a formal mechanism for notifying the public that certain substances are deemed to becontrolled precursors under the extended definition.

75. The scope of the definition, if adopted in the Customs context, would also raise issues inrelation to adequacy of the existing regulatory framework, for example in relation to licensing forlegitimate use.

Question H

(i) Is the extended definition of precursor in the model schedule appropriate for both the

named substances and the wider group of associated forms of the named precursors?

(i) If not, is it necessary to introduce the concept of immediate precursor in the extended

definition?

(iii) Are there substances that warrant specific inclusion in the definition of precursor,

notwithstanding that they are not in the model precursor schedule?

(iv) Is the current regulatory framework currently adequate to support the application of an

extended definition? What changes may be necessary?

I. Pure/mixed quantities

76. As noted in Part D, the model schedules for controlled precursors specify mixed quantitiesfor precursors. This differs from the current provisions for precursors in the Criminal Code.

77. Subsections 312.1(2) and (4) of the Criminal Code specify that offences for controlledprecursors and border controlled precursors must be proved by establishing the pure quantity of theprecursor contained in the mixture. By contrast, subsections 312.1(1) and 312.1(3) of theCriminal Code provide that the prosecution may prove the quantity of a controlled drug or bordercontrolled drug (respectively) by proving that the mixture contains the specified pure quantity or, if

an amount in a mixture is specified, by proving that (gross) quantity of the mixture.

78. The model controlled precursor schedule refers only to mixed quantities. (Attachment 2.5).As such, if the schedule were to be introduced into Commonwealth legislation, an amendment maybe required to allow the prosecution to prove the amount of the precursor by proving the grossamount of the mixture (as currently, quantities of precursor involve proof by reference to the pureform of the precursor). This would be consistent with the current provisions in relation tocontrolled and border controlled drugs.


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Question I

Is it desirable to specify pure quantities for any particular precursors?


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PART V LEGISLATIVE STRUCTURE

79. Currently, the definitions and quantities of border controlled and controlled drugs, plantsand precursors rely on a comprehensive listing in Division 314 of the Criminal Code. The listing ofadditional drugs, plants and precursors and different quantities may be achieved through interimregulations (with a 12 month lifespan) under Subdivision A of Division 301 of the Criminal Codeor emergency determinations (ministerial determinations with a 28-day lifespan) underSubdivision B of Division 301 of the Criminal Code.

Interim regulations and emergency determinations

80. The Explanatory Memorandum (EM) to the SDO Act describes the purpose behind thecreation of interim regulations and emergency determinations:

Interim regulations are designed to cater for the situation where there are reasons to justify thetemporary prescription of a substance (for up to a year) pending full consideration by experts

and the provision of expert advice to the Minister

Recent events, culminating in the Customs Amendment Act 2004, have highlighted the need forthreshold quantities to be capable of being prescribed in interim regulations. This includesthreshold quantities being prescribed for: new substances being added by interim regulations;and for any substances that are already prescribed in proposed Division 314 but do not havequantities prescribed.15

..

The purpose of the emergency determination mechanism is to allow new substances to beprescribed as controlled drugs, controlled plants, controlled precursors, border controlled drugs,border controlled plants or border controlled precursors for the purposes of proposed Part 9.1 ofthe Criminal Code. Emergency determinations can only be made where certain criteria are metand for a finite timeframe, pending further analysis as to whether those substances should havethat classification on an indefinite basis. Recent events, culminating in the Customs Amendment

Act 2004, have highlighted the need for the emergency scheduling mechanism to also allowthreshold quantities to be prescribed both for the new substances being added and for anysubstances that are already prescribed in the interim regulations but do not have quantitiesprescribed.16

81. The recent events to which the EM refers involved a situation in which large quantities ofmethamphetamine (over 320kg) were imported into Australia, but offences in the Customs Act

contained no prescribed commercial quantity for the drug (only a minority of narcotics wereprescribed as commercial quantities). This anomaly was criticised by Justice Finnane of theNew South Wales District Court inR v Zhang and ors. 17 Shortly thereafter, theCustoms Amendment Act 2004 was introduced to correct the anomaly.

82. The powers to create interim regulations and emergency determinations have not been usedsince they were introduced. This raises questions as to whether such mechanisms are necessary ordesirable.

15Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005, Explanatory

Memorandum, page 1416

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005, ExplanatoryMemorandum, pages 16-17

17R v Zhang and ors, District Court of New South Wales, unreported, 4 December 2004


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J. Options to amend legislative structure

83. Were the model drug schedules adopted by the Commonwealth, there are several options tostructure the legislative scheme in Part 9.1 of the Criminal Code. These are:

a) maintain the existing structure

b) maintain the existing structure where the majority of substances are listed by name in theCriminal Code and enhanced by further listings from the model schedules. Maintain alsothe regulation power to list further substances and quantities but extend the life of theregulation to accommodate the longer lead times in those cases where legislativeamendment to the Code is required.

The advantage of this is that there is minimal change to the current structure and most of therelevant information is accessible in the same legislative vehicle. The disadvantage is thatimplementation of the model schedules will considerably expand the listings from 170 drugs

to over 255 if the model schedules are fully incorporated into the Criminal Code. There willbe less flexibility in relation to the listing of new substances and changes to the quantities iflistings are in the Criminal Code.

c) provide a regulation-making power in the Criminal Code to permanently list the substancesfrom the model schedules which fall within each of the offences in Part 9.1 in regulations,instead of listing by name in the Criminal Code. Maintain also the power to provide for anemergency determination with a 28-day lifespan for urgent cases.

The advantage of this approach is that it provides more flexibility and responsiveness to newsubstances and quantities and avoids the need for further legislative amendment at the

expiration of the 12 month period. A similar approach is followed in other Commonwealthlegislation, for example, the Customs Act and Regulations and theMigration Act 1958 andRegulations. The disadvantage is that the detail of which substances are listed will not beaccessible in the one legislative vehicle.

Question J

(i) Is the current legislative structure in Part 9.1, incorporating detailed listings of substances

in Division 301, suitable to meet the needs of the current and emerging illicit drug market in

Australia?

(ii) If not, should there be amendment along the lines of either option (b) or (c) above?


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PART VI LEGITIMATE USE DEFENCES

K. Legitimate use defence for serious drug offences

84. Defences against serious drug offences in Part 9.1 of the Criminal Code, other thanimport/export offences in Division 307, are contained in Division 313. Section 313.1 provides adefence if a person engages in conduct in a State or Territory in which there is a law justifying orexcusing that conduct. Section 313.2 provides a defence of reasonable belief that conduct is

justified or excused by or under a law of the Commonwealth or of a State or Territory.

85. The Criminal Code does not currently have a defence for legitimate medical, industrial orscientific and research uses. If the model schedules were implemented in Commonwealthlegislation, it may be appropriate to consider a legitimate use defence, given the significantbroadening of substances that would be classified as controlled drugs and precursors. A legitimateuse defence could cover, for example, a drug manufacturer using bulk morphine and converting itinto tablets or ampoules that are approved drug products.

86. An example of a substance which may justify a legitimate use defence is the substanceGammabutyrolactone (GBL). GBL is currently listed as a controlled and border controlled drug butalso has legitimate industrial and manufacturing uses.

87. A legitimate use defence would require careful consideration to determine, firstly, thesubstances to which it would apply, and secondly, the construction of such a defence. Indetermining the application of a defence to certain substances, a threshold question might bewhether it is appropriate that a substance that is capable of licit use is criminalised.

88. In determining the construction of a defence, the broadness of its application is a relevantconsideration. For example, legitimate is broad term and capable of wide interpretation. Should itencompass all users of the drug, or only persons licensed or qualified to use the drug? Somelegislation, for example, section 116 of theMisuse of Drugs Act 1975 (NZ) provides that particularprofessionals are exempt from the offences of dealing with, and possession of, controlled drugs.These professionals include medical practitioners, dentists, veterinarians and pharmacists. Shouldthe concept of legitimate use extend to these professionals only?

89. The legislative structure of a legitimate use defence also requires consideration. Forexample, should section 313.1 of the Criminal Code be amended to prescribe the specific purposesfor which the defence would apply? Alternatively, would a regulation making power be moreappropriate, so that legitimate uses could be listed in subordinate legislation so that the categories oflegitimate use could flexibly respond as further uses are identified?

Question K

(i) How should legitimate uses, for example medical, industrial or scientific uses, involving

consumption be protected?

(ii) Which substances, in addition to GBL, have legitimate medical, industry, scientific and

research applications which may require defences to be made available?

(iii) How should a legitimate use provision be constructed?


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L. Legitimate use defence - plants

90. The model controlled plant schedule expands the list of categories of plants and fungi. Thecollection and use of certain plants by botanists and collectors raises the question of whether there is

a need for a legitimate use defence, and on what grounds this would be available. For example,botanists or plant collectors may have a legitimate use of cactus species where possession wouldotherwise be an offence.

91. Similarly, given that all genera of cannabis are controlled plants, cultivation of any variety isan offence against Commonwealth legislation (subject to the defence in section 313.1 of theCriminal Code). It may be timely, in the context of considering application of the model schedules,to consider whether a defence might be warranted to allow commercial exploitation of industrialhemp for fibre or other legitimate uses.

Question L

Does the model schedule of controlled plants create any problems of inadvertent criminalisation,

particularly in relation to the offence of selling a controlled plant within Australia?

M. Legitimate use defence - precursors

92. The model definition of controlled precursors includes many new substances that maycurrently be widely distributed and used in legitimate industry. Paragraph 64 of this discussionpaper has already drawn attention to the fact that several of the substances listed in the model

control precursor schedules have wide legitimate uses, for example, in household and healthproducts.

Question M

(i) Does the expanded list create any problems of inadvertent criminalisation, particularly in

relation to controlled precursor offences?

(ii) Are legitimate users of controlled precursors sufficiently protected by the requirement for

the prosecution to prove intention or belief that a controlled precursor is to be used for the

manufacture of a controlled drug?

(iii) How should a further exception be framed for those legitimate users of controlled

precursors involved in the legitimate manufacture of controlled drugs?

(iv) Would an exemption be a more appropriate mechanism to protect legitimate users of

controlled precursors than a defence?


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ATTACHMENT 1:CONSOLIDATED TABLE OF SERIOUS DRUG OFFENCES IN THE CRIMINAL CODE

Division Offence Quantity

C = commercial

M = marketable

A = any

Max Penalty

(imprisonment)

Commercial intent

302 - Trafficking controlleddrugs

Domestic trafficking of a controlled drug C302.2M302.3A - 302.4

Life25 yrs10 yrs

Yes (rebuttable presumption for more thantrafficable quantity)

303 - Commercialcultivation of controlledplants

Cultivating controlled plants C303.4M303.5A - 303.6

Life25 yrs10 yrs


304 - Selling controlledplants

Selling controlled plants C304.1M304.2A - 304.3

Life25 yrs10 yrs

Yes

305 - Commercialmanufacture of controlleddrugs

Manufacturing controlled drugs for a commercialpurpose

C305.3M305.4A - 305.5

Life25 yrs10 yrs


306 - Pre-traffickingcontrolled precursors

Pre-trafficking a controlled precursor C306.2M306.3A - 306.4

25 yrs15 yrs7 yrs Yes (rebuttable presumption applies where

marketable quantity and intention tomanufacture)

307 - Import/export offences Import/export commercial quantity of bordercontrolled drugs or plants

C307.1 Life No

Import/export of a border controlled drug or plantwith intent to sell or belief another intends to sell

M307.2A307.3 (less thancommercial)

25 yrs10 yrs

Yes (defence of no commercial intent)Yes (defence of no commercial intent)

Import/export of a border controlled drug or plant A307.4 (less thancommercial)

2 yrs No


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Possess unlawfully imported border controlleddrugs or border controlled plants

C307.5M307.6A - 307.7

Life25 yrs2 yrs

NoYesNo

Possess unlawfully imported border controlleddrugs or border controlled plants reasonablysuspected of having been unlawfully imported

C307.8M307.9A - 307.10

Life25 yrs2 yrs

NoYesNo

Importing and exporting border controlledprecursors

C307.11M307.12A - 307.13

25 yrs15 yrs7 yrs

NoYesdefence of no commercial intentYesdefence of no commercial intent

308 - Possession offences Possessing a controlled drug A308.1 2 yrs No

Possessing a controlled precursor A308.2 2 yrs No

Possessing plant material, equipment orinstructions for commercial cultivation ofcontrolled plants

A308.3 7 yrs

Possessing substance, equipment or instructionsfor commercial manufacture of controlled drugs

A308.4 7 yrs

309 - Offences involvingchildren

Supplying controlled drugs to children A309.2 15 yrs

Supplying marketable quantities of controlleddrugs to children for trafficking

M309.3 Life Yesbelief that child intends to sellrebuttable presumption for trafficable quantity

Supplying controlled drugs to children fortrafficking

A309.4 25 yrs Yesbelief that child intends to sellrebuttable presumption for trafficable quantity

Procuring children for trafficking marketablequantities of controlled drugs

M309.7 Life


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Procuring children for trafficking controlleddrugs

A309.8 25 yrs

Procuring children for pre-traffickingmarketable quantities of controlled precursors

M309.10 Life

Procuring children for pre-traffickingmarketable quantities of controlled precursors

A309.11 25 yrs

Procuring children for importing or exporting

marketable quantities of border controlled drugsplants

M309.12 Life Defence of no commercial intent

Procuring children for importing or exportingborder controlled drugs plants

A309.13 25 yrs Defence of no commercial intent

Procuring children for importing or exportingmarketable quantities of border controlledprecursors

M309.14 Life Defence of no commercial intent

Procuring children for importing or exportingborder controlled precursors

A309.15 25 yrs Defence of no commercial intent

310 - Harm and danger tochildren

Exposure to harm arising from unlawfulmanufacturing

A310.2 9 yrs

Harm caused by unlawful manufacturing A310.3 9 yrs


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ATTACHMENT 2.1:THE MODEL SCHEDULESLIST OF CONTROLLED DRUGS

PROPOSED MODEL SCHEDULE OF CONTROLLED DRUGS - SCHEDULE I

Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)

kgs kgs kgs kgs gramsAcetorphine 2 0.5 3

Acetyl-alpha-methylfentanyl 0.005 0.00125 0.0075

Acetyldihydrocodeine 10 2.5 15

Acetylmethadol 5 1.25 15

Alfentanil 2 0.5 3

Allobarbitone 4 1 125

Allylbarbituric acid 4 1 125

Allylprodine 1 0.25 1.5

Alpha-methylfentanyl 0.005 0.00125 0.0075

Alpha-methylthiofentanyl 0.005 0.00125 0.0075Alprazolam 1 0.25 125

5-(2-aminopropyl)indan 1 0.25 3

3-(2-aminopropyl)indole (AMT) 0.2 0.05 5

Amphecoloral

Amphetamine 0.75 1 0.1 0.5 2

Amylobarbitone 4 1 125Androisoxazole 20 5 500

Anileridine 10 2.5 15

Aprobarbitone 4 1 125Barbitone 4 1 125Barbiturates (not otherwise listed in this schedule) 4 1 125

Barbituric acid 4 1 125

Benzethidine 10 2.5 15

1, 4-Benzodiazepine 2 0.5 125


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)

kgs kgs kgs kgs grams

Benzodiazepines (not otherwise listed in this schedule) 2 0.5 125Benzoxazocine 4 1 100Benzoylecgonine 1 0.25 3

Benzylmorphine (3-benzylmorphine) 5 1.25 7.51-Benzylpiperazine (BZP) 1 0.25 3

Beta-hydroxyfentanyl 0.005 0.00125 0.0075

Beta-hydroxy-3-methylfentanyl 0.005 0.00125 0.0075

Bezitramide 5 1.25 7.5

Bromazepam 2 0.5 125

4-Bromo-2,5-dimethoxyamphetamine 0.2 0.05 5

Bromvaletone 2 0.5 100

Bufotenine 2 0.5 50

Buprenorphine 0.04 0.01 0.061,4-Butanediol 2 0.5 50

Butobarbitone 4 1 125

Butorphanol 2 0.5 3Cannabinol oil 2 10 1 2 25

Cannabinol resin 2 10 1 2 25

Cannabinoid dried plant material including flowering and

fruiting tops, leaves, seeds or stalks but not including resinor oil 2 12.5 1 2.5 250

Captodiam 2 0.5 125

Carfentanyl 0.005 0.00125 0.0075

Cathine 5 1.25 250

Cathinone 5 1.25 6Chloral hydrate 2 0.5 100

Chlorbutol 2 0.5 100Chlordiazepoxide 2 0.5 125


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)


Chlormethizole 0Chlormezanone 2 0.5 125

1-(3-Chlorophenyl)-piperazine 1 0.25 3

Clobazam 2 0.5 125Clonazepam 2 0.5 125

Clonitazene 5 1.25 7.5

Clorazepate 2 0.5 125

Cocaine 0.75 1 0.1 0.2 2

Codeine (when in excess of 10.0 grams) 2 0.5 125

Codeine-N-oxide 10 2.5 15

Codoxime 10 2.5 154-Cyano-2-dimethyl-amino-4,4-diphenyl-butane(methadone intermediate) 2 0.5 34-Cyano-1-methyl-4-phenylpiperidine (pethidineintermediate A) 1 0.25 3

Cyclobarbitone 4 1 125

Delta-9-tetrahydrocannabinol (dronabinol) 4 25 1 10 25

Desomorphine 2 0.5 3

Diampromide 5 1.25 7.5

Diazepam2 0.5 125Diethylpropion 8 2 250

Diethylthiambutene 5 1.25 7.5

N:N-Diethyltryptamine 2 0.5 3

Difenoxin 2 0.5 100

Dihydrocodeine 10 2.5 250Dihydrohydroxymorphine 10 2.5 250

Dihydromorphine 10 2.5 250

Dimenoxadol 10 2.5 125


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)


Dimepheptanol 10 2.5 125

Dimethylamino-1,2-diphenylethane

N,N dimethylamphetamine

3-(1, 2-Dimethylheptyl)-1-hydroxy-7, 8, 9, 10-tetrahydro-6,6, 9-trimethyl-6h-dibenzo (b, d) pyran (DMHP) 2 0.5 3

Dimethylthiambutene 5 1.25 7.5

N:N-Dimethyltryptamine 2 0.5 3

Dioxaphetylbutyrate 2 0.5 3

Diphenoxylate B127 2 0.5 125

Dipipanone 10 2.5 125

Drotebanol 1 0.25 3

Ecgonine, 1 0.25 3

Ephedrine 5 1.25 10

Ergotamine 0.1 0.025 3

Ethchlorvynol 2 0.5 125

Ethinamate 2 0.5 125

Ethyloestronol 20 5 500

4,5-Ethylenedioxy-3-methoxyamphetamine

Ethylmethylthiambutene 5 1.25 7.5

Ethylmorphine 2 0.5 3N-Ethyl-1-phenylcyclohexylamine 0.4 0.1 0.0075

Eticyclidine (PCE) 0.004 0.001 0.0075

Etonitazene 5 1.25 7.5

Etorphine 5 1.25 7.5

Etoxeridine 5 1.25 7.5

Fenethylline 2 0.5 3

Fentanyl 0.005 0.00125 0.0075

Flunitrazepam 1.5 0.6 30


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)


Fluoxymesterone 20 5 500Flurazepam 2 0.5 125

Furethidine 1 0.25 1.5

Gamma-butyrolactone 2 0.5 50Glutethimide 4 1 250

Harmaline 5 1.25 20

Harmine 5 1.25 20

Harmines (not otherwise listed in this Schedule) 5 1.25 20

Heptabarbitone 4 1 125

Heroin (diacetylmorphine/diamorphine) 0.75 1 0.1 0.2 2

Hexobarbitone 4 1 1253-Hexyl-1-hydroxy-7,8,9,10-tetrahydro-6,6,9- trimethyl-6H-dibenzo (b,d)pyran 4 25 1 10 25

Hydrocodone 2 0.5 3

Hydromorphinol 2 0.5 3

Hydromorphone 2 0.5 3

Hydroxyamphetamine 5 1.25 6

4-Hydroxybutanoic acid, (GHB) 2 0.5 50Hydroxyfentanyl 0.005 0.00125 0.0075

Hydroxy-3-methylfentanyl 0.005 0.00125 0.0075Hydroxypethidine 1 0.25 3

Isomethadone 2 0.5 3

Ketamine 2 0.5 6

Ketobemidone 2 0.5 3

Levorphanol 1 0.25 1.5Lorazepam 2 0.5 125

Lysergamide 0.02 0.005 0.003

Lysergic acid 0.02 0.005 0.003


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)


Lysergic acid diethylamide (LSD) 0.02 0.005 0.003

Lysergide 0.02 0.005 0.003

Mecloqualone 5 1.25 15

Medazepam 2 0.5 125Meprobamate 2 0.5 125

Meprodine 1 0.25 1.5Mescaline (3,4,5-Trimethoxyphenethylamine) 0.2 0.05 2

Mestanolone 20 5 500

Metazocine 7 1.75 125

Methadol 5 1.25 15

Methadone 20 4 400

Methandriol 10 2 200

Methaqualone 5 1.25 7.5

Methbarbitone 4 1 125

Methcathinone 5 1.25 6

Methorphan 2 0.5 3

1-(4-Methoxyphenyl)-piperazine 1 0.25 34-methylaminorex 1 2.5 0.25 1.25 6

Methylamphetamine (Methamphetamine) 0.75 1 0.1 0.5 2

Methyldesorphine 2 0.5 3Methyldihydromorphine 2 0.5 3

3,4-Methylenedioxyamphetamine (MDA) 0.75 1 0.1 0.5 2

3,4-Methylenedioxymethylamphetamine (MDMA) 0.75 1 0.1 0.5 2

3,4-methylenedioxy-n-ethylamphetamine (MDEA) 0.75 1 0.1 0.5 2

3-Methylfentanyl 0.005 0.00125 0.0075

2-Methyl-3-morpholino-1,1-diphenylpropane carboxylicacid (Moramide intermediate) 2 0.5 3

Methylpentynol 2 0.5 125


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)


Methylphenidate 2 0.5 3

Methylphenobarbitone 4 1 1251-Methyl-4-phenylpiperidine-4-carboxylic acid (Pethidine

intermediate C) 1 0.25 31-Methyl-4-phenyl-4-propionoxypiperidine 1 0.25 3

3-Methylthiofentanyl 0.005 0.00125 0.0075

Methyprylone 4 1 125

Metopon 2 0.5 3Mibolerone 20 5 500Midazolam 2 0.5 125Mitragynine

Monoacetylmorphine 1.5 0.6 30

Moramide 1.5 0.6 30

Morphan 1.5 0.6 30

Morpheridine 1.5 0.6 30

Morphine 1 0.2 20

Morphine methobromide 1.5 0.6 30

Morphine-N-oxide 1.5 0.6 30Morphinone 1.5 0.6 30

Muscimol 2 0.5 125Myrophine 20 5 30

Nabilone 0.4 0.1 0.6

Nalbuphine 2 0.5 125

Nealbarbitone 4 1 125

Nicocodine 4 1 500

Nicodicodine 4 1 500

Nicomorphine 4 1 500

Nitrazepam 2 0.5 125


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)


7-Nitro1,4-benzodiazipine 2 0.5 125

Noracylmethadol 2 0.5 3

Noracymethadol 5 1.25 15

Norcodeine 4 1 500Norlevorphanol 1 0.25 1.5

Normethadone 5 1.25 7.5

Normorphine 20 5 30

Norpipanone 10 2.5 15

Opium 4 1 30

Oxandrolone 20 5 500

Oxazepam 2 0.5 125

Oxycodone 5 1.25 7.5

Oxymorphone 2 0.5 3

Paraflurofentanyl 0.005 0.00125 0.0075

Parahexyl 0.2 0.05 5

Paraldehyde 2 0.5 125Paramethoxyamphetamine (4-Methoxyamphetamine orPMA) 0.75 1 0.1 0.5 2

Paramethoxymethamphetamine (PMMA) 0.75 1 0.1 0.5 2

Pentazocine 5 1.25 125Pentobarbitone 4 1 125

Pethidine 1 0.2 20

Phenacylmorphan 4 1 250

Phenadoxone 10 2.5 15

Phenampromide 10 2.5 15

Phenazocine 1 0.25 1.5

Phencyclidine 0.004 0.001 0.0075

Phendimetrazine 10 2.5 15


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)


Phenethylamines (not otherwise listed in this Schedule) 0.75 1 0.1 0.5 2

Phenmetrazine 5 1.25 7.5

Phenobarbitone 4 1 125

Phenomorphan 5 1.25 7.5Phenoperidine 5 1.25 7.5Phentermine 4 1 125

1-(1-phenylcyclohexyl) pyrrolidine 0.004 0.001 0.0075

1-Phenylethyl-4-acetoxypiperidine 0.004 0.001 0.0075

1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine (PEPAP)

Phenylmethyl barbituric acid 4 1 125

4-Phenylpiperidine-4-carboxylic acid ethyl ester 1 0.25 3

Phenylpropanolamine 5 1.25 6

Pholcodine 5 1.25 7.5

Piminodine 10 2.5 15

Pipradrol 5 1.25 6

Piritramide 1 0.25 1.5

Prazepam 2 0.5 125

Prodine 1 0.25 1.5

Proheptazine 1 0.25 1.5

Properidine 28 7 40Propiram 2 0.5 3Propoxyphene 2 0.5 250

Pseudoephedrine 5 1.25 10

Psilocin (3(2-Dimethylamioethyl)-4-hydroxyindole) 1 0.25 100

Psilocybin 1 0.25 100

Quinalbarbitone 4 1 125

Remifentanil 0.2 0.05 0.3

Rolicyclidine (PHP or PCPY) 0.004 0.001 0.0075


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Commercial(Pure)

Commercial(Mixed)

Marketable(pure)

Marketable(mixed)

Trafficable(mixed)


Salvinorin A 0.2 0.05 5

Secbutobarbitone 4 1 125

Steroids both Anabolic and Androgenic, other than in

animal implants and otherwise not listed in this schedule 20 5 500Sufentanil 0.005 0.00125 0.0075Talbutal 2 0.5 125

Temazepam 2 0.5 125Tenocyclodine (TCP) 0.004 0.001 0.0075

Tetrahydrocannabinol 4 25 1 10 25

Thebacon 2 0.5 3

Thebaine 2 0.5 3Thiambuten 5 1.25 7.5

1-(1-(2-thienyl) cyclohexyl)-piperidine 0.004 0.001 0.0075

Thiofentanyl 0.005 0.00125 0.0075

Tilidine 1 0.25 3

Triazolam 2 0.5 125

Triclofos 2 0.5 125

1-(3-Trifluoromethylphenyl)-piperazine (TFMPP) 1 0.2 2

Trimeperidine 10 2.5 15

Tryptamines (not otherwise listed in this Schedule) 1 0.2 2Vinbarbitone 4 1 125


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ATTACHMENT 2.2:THE MODEL SCHEDULESDEFINITIONS OF

CONTROLLED DRUGS, CONTROLLED PLANTS AND CONTROLLED

PRECURSORS

Definitions:

Schedule I: controlled drugs

Adrugmeans any substance:(a) specified in Schedule I: Controlled Drugs

and includes:

(b) any form of a drug specified in Schedule I: Controlled Drugs whether natural orsynthetic, and the salts, derivatives and isomers of that drug and any salt of thosederivatives and isomers; or

(c) any drug specified in, or drug included in a class of drug specified in Schedule I:Controlled Drugs whether natural or synthetic, and the salts, derivatives and isomersof that drug and any salt of those derivatives and isomers; or

(d) any analogue in relation to a drug listed in Schedule I: Controlled Drugs, whichincludes any substance having a substantially similar chemical structure to the drug,

but differing in elemental composition due to the addition, deletion or replacementof any substituent element or groups; or

(e) any homologue in relation to a drug listed in Schedule I: Controlled Drugs, whichincludes any substance which differs from that drug by one or more carboncontaining groups (including methylene groups) in the chemical structure; or

(f) any drug contained in or mixed with another substance.

NB. Derivativemeans a substance or compound made from another substance orcompound

Schedule II: controlled plants

Aplantmeans any substance:(a) specified in Schedule II: Controlled Plants;

and includes

(b) a cutting of such plants whether or not the cutting has roots.

capsulemeans a seed pod


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Cultivateincludes:(a) to sow a seed of a Schedule II controlled Plant; or(b) plant, grow, tend, nurture or harvest a Schedule II Controlled Plant; or(c) graft, divide or transplant a Schedule II Controlled Plant.

Enhanced cultivationmeans cultivation of a plant that involves any one or more of thefollowing:

(a) the nurture of the plant in nutrient enriched water (with or without mechanicalsupport);

(b) the application of an artificial source of light or heat,(c) suspending the plants roots and spraying them with nutrient solution.

Schedule III: controlled precursors

Aprecursormeans any substance:(a) listed in Schedule III: Controlled Precursors; or

(b) any preparation, admixture, extract or other substance containing any proportionof a precursor specified in Schedule III: Controlled Precursors and including all:

i. salts;ii. isomers

iii. esters;iv. ethers;

v. ketals;vi. acetals;

vii. acetates;viii. hydroxides;

ix. oximes;x. amides;

xi. imines;xii. acid chlorides;

xiii. nitriles;xiv. anhydrides;xv. halogen substituent;

xvi. epoxides andxvii. diols; and

xviii. any other analogues or derivatives

of a precursor specified in Schedule III: Controlled Precursors.


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ATTACHMENT 2.3:15 CONTROLLED DRUGS LISTED IN SECTION 314.1 OF THE CRIMINAL CODE

SHOWING CURRENT LIMITS FOR TRAFFICABLE, MARKETABLE AND COMMERCIAL QUANTITIES WITH THE LIMITS PROPOSED UNDER THE MODELSCHEDULES

Drug trafficable quantity (grams) marketable quantity (grams) commercial quantity (grams)

Existing

controlleddrug offence

Model Existing


Model Existing

bordercontrolled

drug offence

Existing


Model Existing

bordercontrolled

drug offenceAmphetamine 2 2 250 100 (p)

500 (m)2 750 750 (p)

1 000 (m)750

Cannabis 250 250 25 000 1 000 (p)2 500 (m)

25,000 250 000 2000 (p)1 2500 (m)

100 000

Cannabis resin 20 25 25 000 1 000 (p)2 000 (m)

20 125 000 2 000 (p)10 000 (m)

50 000

Cocaine 2 2 250 100 (p)200 (m)

2 2 000 750 (p)1 000 (m)

2 000

Gammabutyrolactone GBL 0.5 50 250 500(m) 2 1 000 2 000(m) 1 0004-Hydroxybutanoic acid GHB 0.5 50 250 500(m) 2 1 000 2 000(m) 1 000Hero in (diacetylmorphine) 2 2 250 100 (p)

200 (m)2 1 500 750 (p)

1 000 (m)1 500

Lysergide LSD 0.002 0.003 0.05 5(m) 0.002 2 20(m) 2Methamphetamine 2 2 250 100 (p)

500 (m)2 750 750 (p)

1 000 (m)750

3,4-MethylenedioxyamphetamineMDA

0.5 2 100 100 (p)500 (m)

0.5 750 750 (p)1 000 (m)

750

3,4-MethylenedioxymethamphetamineMDMA

0.5 2 100 100 (p)500 (m)

0.5 500 750 (p)1 000 (m)

500

Opium 20 30 10 000 1 000(m) 20 20 000 4 000(m) 20 000Psilocine 2 100 1 000 250(m) 0.1 2 000 1 000(m) 100Psilocybine 2 100 1 000 250(m) 0.1 2 000 1 000(m) 100Tetrahydrocannibino l THC 2 25 1 000 1 000 (p)

10 000 (m)2 5 000 4 000 (p)

25 000 (m)5 000

p = pure quantity m = mixed quantity


38/41

Draft Model Drug Schedule Discussion Paper 38 of 41

ATTACHMENT 2.4:THE MODEL SCHEDULESLIST OF CONTROLLED PLANTS

Proposed Model Schedule of Controlled PlantsSchedule II (Part A & Part B)

Part A

Item Controlled Plant Commercialquantity

(weight and/ornumber ofplants)

Marketablequantity


Trafficablequantity

(weight and/ornumber ofplant

1. any plant of the genus Cannabis L 500 plants or 125kgs 100 plants or 25kgs 10 plants or 250grams

1a. Any fresh or dried part of a plant of the genusCannabis L

12.5kg 2.5kg 250g

2. Enhanced cultivation of any plant of the genusCannabis L

250 plants or 62.5kgs 50 plants or 12.5kgs 5 plants or 125grams

3. any plant of the genus ErythroxylumP. Browne) fromwhich cocaine can be extracted either directly or bychemical transformation, including Erythroxylum cocaLam and Erythroxylum nova-granatense

800 kgs 80 kgs 800 grams

4. Papaver bracteatumLindley 10,000 plants or 1000kgs or 30,000 capsules

1000 plants or 100 kgsor 3000 capsules

100 plants or1000grams or 300capsules

5. Papaver somniferumL. 10,000 plants or 1000kgs or 30,000 capsules

1000 plants or 100 kgsor 3000 capsules

100 plants or1000grams or 300capsules

6. all fungi that contain PSILOCIN 10kgs 2.5kgs 1000grams7. all fungi that contain PSILOCYBIN 10kgs 2.5kgs 1000grams

Part B

Item Controlled Plant Commercialquantity


Marketablequantity


Trafficablequantity

(weight and/ornumber ofplant

8. any plant containing MESCALINE including any plantof the genus Lophophora

- - -

9. any plant containing DMT including any plant of thespecies Piptadenia Peregrine

- - -

10. Salvia divinorumEPL. & Jativa (Diviners Sage) - - -

11. Mitragyna speciosaKorth (Krantom) - - -

12. Catha edulisForsk (Khat) 5kgs 2.5kgs 250grans

13. Any species of the genus Ephedrawhich containsephedrine

200kgs 50kgs 10kgs

14. Any species of the genus BrugmansiaPers. - - -

15. Any species of the genus DaturaL. - - -


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ATTACHMENT 2.5:THE MODEL SCHEDULESLIST OF CONTROLLED

PRECURSORS

PROPOSED MODEL SCHEDULE OFCONTROLLED PRECURSORS -SCHEDULE III X4 x 10

Commercial(Mixed)

Marketable(mixed)

Trafficable(mixed)

kgs / Ltrs kgs / Ltrs grams / mls

Acetaldehyde 2 kgs 0.5 kg50 gms

Acetic anhydride 4 ltrs 1 ltrs 100 mls

N-Acetylanthranilic acid20 kgs 5 kgs

500 gms

Allylbenzene

1 ltr 0.25 ltr

25 ml

Allylpyrocatechol0.4 ltr 0.1 ltr

10 mls

Alpha-phenylacetoacetonitrile2 kgs 0.5 kg

50 gms

4-Amino-butanoic acid 6 kgs 1.5 kgs 150 gms

Ammonia 6 kgs 1.5 kgs 150 gms

Ammonium formate 2 kgs 0.5 kg 50 gms

Anthranilic acid20 kgs 5 kgs

500 gms

Benzaldehyde2 ltrs 0.5 ltr

50 mls

1,3-Benzodioxole1 ltr 0.25 ltr

25 mls

Benzyl bromide 2 ltrs 0.5 ltr 50 mlsBenzyl chloride

2 ltrs 0.5 ltr50 mls

Boron tribromide 1 ltr 0.25 ltr 25 ml

Bromobenzene 2 ltrs 0.5 ltr 50 mls

5-Bromo-1,3-benzodioxole 1 ltr 0.25 ltr 25 mls

Bromo safrole0.2 ltr 0.05 ltr

5 mls

1,4-Butanediol 6 ltrs 1.5 ltrs 150 mls

Calcium1 kg 0.25 kg

25 gms

1-Chlorophenyl-2-aminopropane1 kg 0.25 kg

25 gms

Chromic acid 0.4 ltr 0.1 ltr 10 mls

Chromium trioxide0.4 kg 0.1 kg

10 gms

Ephedrine1 kg 0.25 kg

25 gms

Ergometrine0.0002 kg 0.00005 kg

0.005 gm

Ergotamine0.02 kg 0.005 kg

0.5 gms

Ethanamine2 ltrs 0.5 ltr

50 mls

Ethyl phenyl acetate2 kgs 0.5 kg

50 gms

N-Ethylephedrine 1 kg 0.25 kg 25 gms

N-Ethylpseudoephedrine 1 kg 0.25 kg 25 gmsEugenol 0.4 ltr 0.1 ltr 10 mls


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Commercial(Mixed)

Marketable(mixed)

Trafficable(mixed)

Formaldehyde6 kgs 1.5 kgs

150 gms

Formamide2 ltrs 0.5 ltr

50 mls

Gamma butyrolactone 6 ltrs 1.5 ltrs 150 mls

Gamma hydroxybutanoic acid 6 ltrs 1.5 ltrs 150 mls

Hydriodic acid4 ltrs 1 ltr

100 mls

Hydrobromic acid1 ltr 0.25 ltr

25mls

Hydrogen6 kgs 1.5 kgs

150 gms

Hydrogen chloride6 kgs 1.5 kgs

150 gms

Hydrogen sulfide 6 kgs 1.5 kgs 150 gms4-Hydroxybutanal

6 ltrs 1.5 ltrs150 mls

4-Hydroxy-butanoic acid lactone6 ltrs 1.5 ltrs

150 mls

4-Hydroxy-butanoic acid nitrile6 ltrs 1.5 ltrs

150 mls

4-Hydroxy pentanoic acid6 ltrs 1.5 ltrs

150 mls

2-Hydroxytetrahydrofuran6 ltrs 1.5 ltrs

150 mls

Hypophosphite salts1 kg 0.25 kg

25 gms

Hypophosphorous acid 1 ltr 0.25 ltr 25mls

Iodine1 kg 0.25 kg

25 gms

Isosafrole0.4 ltr 0.1 ltr

10 mls

Lithium1 kg 0.25 kg

25 gms

Lithium aluminium hydride0.2 kg 0.05 kg

5 gms

Lysergic acid0.0002 kg 0.00005 kg

0.005 gm

Magnesium 1 kg 0.25 kg 25 gms

Mandellic acid 2 kgs 0.5 kg 50 gms

Mercuric chloride0.004 kg 0.001 kg

0.1 gm

Mercury0.004 kg 0.001 kg

0.1 gm

Methcathinone

1 kg .25kg

25gms

Methylamine 2 ltrs 0.5 ltr 50ml

Methylammonium salts 1 kg 0.25 kg 25 gms

3,4-methylenedioxyphenylacetic acid0.4 kg 0.1 kg

10 gms

3,4--Methylenedioxyphenylpropan-2-one (PMK)0.2 kg 0.05 kg

5 gms

N-Methylformamide2 ltrs 0.5 ltr

50ml

N-Methyl ephedrine 1 kg 0.25 kg 25 gms

Methyl phenylacetate2 kgs 0.5 kg

50 gms

N-Methylpseudoephedrine1 kg 0.25 kg

25 gms

Methylstyrene2 ltrs 0.5 ltr 50 mls

Nitroethane2 ltrs 0.5 ltr

50 mls


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Commercial(Mixed)

Marketable(mixed)

Trafficable(mixed)

Nitromethane 2 ltrs 0.5 ltr 50 mls

Norpseudoephedrine1 kg 0.25 kg

25 gms

Palladium0.02 kg 0.005 kg

0.5 gm

Phenylacetamide2 kgs 0.5 kg

50 gms

Phenylacetic acid2 kgs 0.5 kg

50 gms

Phenylacetonitrile2 ltrs 0.5 ltr

50 mls

Phenylacetyl chloride2 ltrs 0.5 ltr

50 mls

Phenylalanine2 kgs 0.5 kg

50 gms

1-Phenyl -2- bromopropane 2 kgs 0.5 kg 50 gms1-Phenyl-2-chloropropane

2 kgs 0.5 kg50 gms

1-Phenyl -2- iodopropane2 kgs 0.5 kg

50 gms

1-Phenyl-2-nitropropene 1 kg 0.25 kg 25 gms

Phenylpropanolamine2 kgs 0.5 kg

50 gms

1-Phenyl-2-propanol 1 ltr 0.25 ltr 25 ml

1-Phenyl-1-Propanone1 ltr 0.25 ltr

25 ml

1-Phenyl-2-propanone (BMK) 1 ltr 0.25 ltr 25 ml

1-Phenyl-2-propanone oxime 1 kg 0.25 kg 25 gms

Phosphorus 0.4 kg 0.1 kg 10 gmsPhosphorous acid

1 ltr 0.25 ltr25 ml

Piperidine0.2 kgs 0.05 kg

5 gms

Piperonal0.4 kg 0.1kg

10 gms

Platinum0.02 kg 0.005 kg

0.5 gm

Potassium1 kg 0.25 kg

25 gms

Propionic anhydride0.2 ltr 0.05 ltr

5 mls

Pseudoephedrine 1 kg 0.25 kg 25 gms

Pyridine 4 ltrs 1 ltr 100 mls

2-Pyrrolidone 6 ltrs 1.5 ltrs 150 mls

Raney nickel 0.2 kgs 0.05 kg 5 gms

Safrole 0.4 ltr 0.1 ltr 10ml

Sassafras oil 0.4 ltr 0.1 ltr 10ml

Sodium 1 kg 0.25 kg 25 gms

Sodium bis(2-methoxyethoxy) aluminium hydride 0.2 kgs 0.05 kg 5 gms

Sodium borohydride 0.2 kgs 0.05 kg 5 gms

Sodium cyanoborohydride 0.2 kgs 0.05 kg 5 gms

Thionyl chloride 1 kg 0.25 kg 25 gms

Thorium 4 kgs 1 kg 10 gms

Documents

Discussion Paper - Implementation of Model Schedules for Commonwealth Serious Drug Offences