Page 1331 - Week 05 - Tuesday, 9 April 2013
MR SESELJA (Brindabella) (11.11): The Canberra Liberals adjourned the debate on the detail stage of this bill to allow more consideration of the new section 612A of the Criminal Code. We believe that this section deserves weighty consideration as it establishes a presumption to sell illegal drugs, based on the possession of a controlled precursor and intent to manufacture. Establishing such a presumption in law should not be done lightly and should only be done where the harm to society from the offence is great and where it is clear that this presumption will directly address the risk of this harm.
As the ACT Law Society has stated, this presumption does not appear in other drug offences. However, the presumption to sell drugs arising from manufacture is specific to the process, and a harm currently exists in the ACT. There is a real risk and an alarming trend that show organised crime is using a large number of small manufacturers to each produce a small amount of illegal drugs rather than one person shouldering the responsibility for a large-scale operation.
As stated in the explanatory statement to this bill:
Many precursors are present in products that are available from pharmacies, supermarkets and hardware stores and are commonly extracted in backyard laboratories to create controlled drugs.
Therefore, not only does this new offence address the harm created by the trafficking and consumption of illegal drugs but also it addresses the danger to the manufacturer and their surrounding neighbours of manufacturing drugs in backyard operations.
In examining this legislation, we carefully considered whether there was a less restrictive provision that could achieve the same purpose—for example, an evidentiary rather than a legal burden. However, our research has shown that a legal burden would be too easy for the defendant to remove and, therefore, the intent of the offence, to prevent manufacture of illegal drugs, would not be achieved. Using an evidentiary rather than a legal burden would encumber the prosecution to the extent of making the offence null and void.
Additionally, it was mooted that the presumption should be linked to a quantity of the precursor controlled substance. This suggestion relies on the presumption that the manufacture of a certain amount of precursor substance would result in a set amount of an illegal drug being produced. However, it is very clear that the manufacture of drugs relies heavily on the skill, knowledge and equipment of the manufacturer. There is no way of establishing that certain amounts of a precursor substance would result in a trafficable or non-trafficable amount of illegal drugs.
When a person is in the possession of a controlled precursor substance and has the intention to manufacture, they are already on the pathway of an illegal offence. Section 612A does not create a presumption to sell from innocent actions; there is already an intention to do harm. Section 612A creates a serious offence, and the responsibility, by providing the presumption of trafficking, we have given prosecutors and judiciary is large. We expect that it will be exercised with due care.