Chapter 12: Other offences and penalities, and procedural offences and Chapter 14: Enforcement

Background

In addition to offences relating to dealing and possession of drugs, the Misuse of Drugs Act also contains a range of offences targeting other drug-related activities (e.g. production of precursor substances, possession of pipes and utensils, and the laundering of profits of drug offences). It also contains procedural matters that apply when a charge is being contemplated or has been laid. In Chapter 12, the Law Commission reviews these other offences and procedural matters and considers whether any changes are required.

In Chapter 14, the Law Commission outlines the key ways that are available to enforce our drug laws. It also discusses the changes to search and surveillance powers that are proposed by the new Search and Surveillance Bill.  Finally, it considers whether further powers are required to ensure that any proposed regime is able to be enforced effectively.

Key questions to consider

In addition to dealing and personal use offences, what other offences are required to regulate drug-related activities?

The Law Commission identifies a number of additional offences, including those relating to precursor substances, importation and supply of pipes/utensils, and knowingly permitting any premises, vessel, aircraft, hovercraft, motor vehicle or other conveyance to be used for the purpose of committing an offence under the Act.

The Drug Foundation has formed no view on most of these offences, and provides no advice in this toolkit. Many of the offences are of secondary importance to issues such as dealing and personal use.

However we do have a view on offences relating to precursor substances and internal concealment powers.

Precursor substances

Most precursor substances also have legitimate industrial or medical uses, which is often their primary purpose. As such, there is some overlap in the regulation of precursor substances between the Misuse of Drugs Act, the Hazardous Substances and New Organisms Act 1996, and the Medicines Act 1981.

There is a specific issue with the classification of precursor substances that needs attention. Currently, some precursor substances are scheduled as controlled drugs as well as precursor substances. The Drug Foundation shares the Law Commission’s preference for substances to be scheduled as either precursor substances or controlled drugs, but not both. If a precursor substance is being used mainly or only for illegitimate purposes, we agree that it is appropriate that it be reclassified as a controlled drug and that the offences and penalties in relation to controlled drugs apply.

The Drug Foundation also believes that indirect harms should be taken into account when determining the appropriate classification level of precursor substances.  

Are any changes required to the powers in the Act that allow police and customs officers to detain someone they suspect of secreting drugs in his or her body (the “internal concealment powers”)?

Yes. The Law Commission identifies several aspects of the current internal concealment regime that might be changed. The Misuse of Drugs Act currently allows detention of a person for up to 21 days where there are reasonable grounds to believe that a person has Class A or B drugs secreted within their body for any unlawful purpose. The detained person must consent to an examination before it can be carried out.

The Drug Foundation does not believe that someone who is a drug user should be able to be detained for 21 days. This is a disproportionate response. We agree with the Law Commission’s proposal that the power of detention be restricted to those suspected of dealing/trafficking offences only. This is more consistent with a harm minimisation approach to enforcement. There are higher risks associated with drug users who spontaneously swallow poorly packaged drugs when fearing arrest than with drug traffickers who conceal drugs that are carried in larger quantities and packaged for transport in the body. We also share the Law Commission’s view that the costs and resources involved in such detentions are inappropriate where the offence is relatively minor.

The Drug Foundation is opposed to extending the maximum period of detention beyond 21 days. We agree with the Law Commission that this is not a sufficiently big problem to warrant an extension to what is already a very long detention period.

The Drug Foundation believes that it is important to keep the current requirement for a detainee to give their consent to an examination. However, we favour amending the internal concealment regime to permit the use of a wider range of medical imaging techniques and technologies.