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

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 No. 97, 1990 Compilation No. 8 Compilation date: 11 May 2018 Includes amendments up to: Act No. 31, 2018 Registered: 11 May 2018 About this compilation This compilation This is a compilation of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 that shows the text of the law as amended and in force on 11 May 2018 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short Title 2 Commencement 3 Interpretation 4 Act extends to external Territories 4A Application of the Criminal Code 5 Effect of this Act on other laws 6 Meaning of dealing in drugs 7 Meaning of flight in relation to aircraft 8 Meaning of ship at sea 8A Proof of knowledge, intent or purpose Part 2—Offences 9 Possession of equipment etc. 10 Dealing in drugs on board an Australian aircraft 11 Dealing in drugs on board an Australian ship 12 Dealing in drugs outside Australia 13 Dealing in drugs outside Australia with a view to commission of offence in Australia etc. 14 Conspiracy etc. outside Australia to commit offence inside Australia 15 Penalties for offences against sections 10 to 13 15A Intentionally converting etc. property derived from a serious State drug offence 15B Intentionally concealing etc. property derived from a serious State drug offence 15C Intentionally acquiring etc. property derived from a serious State drug offence Part 3—Miscellaneous 16 Prosecutions 17 Presumption that traffickable quantity etc. of narcotic drug etc. is for sale or supply 18 Venue where offence committed on aircraft 19 Change of venue 20 Certificates by Foreign Affairs Minister 21 Section 38 of Judiciary Act 22 Regulations Schedule 1—United Nations Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances Schedule 2—Narcotic Drugs Schedule 3—Psychotropic Substances Part 1 66 Part 2 69 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history Endnote 5—Editorial changes An Act to make provision with respect to the traffic in narcotic drugs and psychotropic substances in accordance with the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Part 1—Preliminary 1 Short Title This Act may be cited as the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990. 2 Commencement This Act commences on a day to be fixed by Proclamation, being a day not earlier than the day on which the Convention enters into force for Australia. 3 Interpretation In this Act, unless the contrary intention appears: Australia includes: (a) the external Territories; and (b) the Australian coastal sea. Australian aircraft means: (a) an aircraft registered under regulations made under the Civil Aviation Act 1988; or (b) an aircraft that is owned by, or is in the possession or control of, the Commonwealth or an authority of the Commonwealth; or (c) an aircraft of any part of the Defence Force (including an aircraft that is being commanded or piloted by a member of that Force in the course of the member's duties as such a member). Australian coastal sea means: (a) the territorial sea of Australia; and (b) the sea on the landward side of the territorial sea of Australia. Australian ship means: (a) a ship registered in Australia; or (b) an unregistered ship that has Australian nationality; or (c) a ship that belongs to an arm of the Defence Force. cannabis means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted. cannabis plant means any plant of the genus Cannabis. cannabis resin means the separated resin, whether crude or purified, obtained from the cannabis plant. coca bush means the plant of any species of the genus Erythroxylon. commercial quantity: (a) in relation to a narcotic drug—means a quantity not less than the quantity specified in Column 3 of Schedule 2 opposite to the reference to that drug in Column 1 of that Schedule; and (b) in relation to a psychotropic substance referred to in Column 1 of Part 1 of Schedule 3—means a quantity not less than the quantity specified in Column 3 of that Part opposite to the reference to that drug. conduct engaged in outside Australia does not include conduct engaged in on board: (a) an Australian aircraft in flight outside Australia; or (b) an Australian ship at sea. Convention means the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances adopted in Vienna on 19 December 1988, a copy of whose English text is set out in Schedule 1, and includes that Convention as amended from time to time in relation to Australia. dealing in drugs has the meaning given by section 6. engage in conduct means: (a) do an act; or (b) omit to perform an act. interest, in relation to property, means: (a) a legal or equitable estate or interest in the property; or (b) a right, power or privilege in connection with the property; whether present or future and whether vested or contingent. flight, in relation to an aircraft, has the meaning given by section 7. Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967. law includes a provision of a law. manufacture, in relation to a narcotic drug or psychotropic substance, means any process by which the drug or substance may be obtained, and includes: (a) refining; and (b) the transformation of a narcotic drug into another narcotic drug or of a psychotropic substance into another psychotropic substance; but does not include: (c) in the case of a narcotic drug—the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained; and (d) in the case of a psychotropic substance—the making, on prescription, by a chemist of a preparation containing a psychotropic substance. narcotic drug means a substance specified in Schedule 2. opium poppy means the plant of the species Papaver somniferum L. property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property. psychotropic substance means any substance specified in Schedule 3. serious State drug offence means any conduct that is: (a) a dealing in drugs referred to in paragraph 6(1)(a), (b), (c), (d), (e), (f), (fa) or (fb); or (b) a dealing in drugs referred to in paragraph 6(2)(b); or (c) a dealing in drugs referred to in paragraph 6(1)(g) or 6(2)(a), (ba) or (c); and constitutes an offence against a law of a State or Territory punishable, on conviction, by imprisonment for at least 12 months. ship at sea has the meaning given by section 8. traffickable quantity: (a) in relation to a narcotic drug—means a quantity not less than the quantity specified in Column 2 of Schedule 2, but less than the quantity specified in Column 3 of that Schedule, opposite to the reference to that drug in Column 1 of that Schedule; and (b) in relation to a psychotropic substance referred to in Column 1 of Part 1 of Schedule 3—means a quantity not less than the quantity specified in Column 2 of that Part, but less than the quantity specified in Column 3 of that Part, opposite to the reference to that drug. 4 Act extends to external Territories This Act extends to all external Territories. 4A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 5 Effect of this Act on other laws (1) This Act is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory. (2) Where a person has been convicted in a country outside Australia of an offence against the law of that country in respect of any conduct, that person is not liable to be convicted of an offence against this Act in respect of that conduct. 6 Meaning of dealing in drugs (1) For the purposes of this Act, each of the following is a dealing in drugs: (a) the cultivation of opium poppy, coca bush or cannabis plant with the intention of producing narcotic drugs; (b) the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained; (c) the manufacture, extraction or preparation of a narcotic drug or psychotropic substance; (d) the possession of a narcotic drug or psychotropic substance with the intention of the manufacture, extraction or preparation of another such drug or substance; (e) the sale, supply, or possession with the intention of sale or supply, of a narcotic drug or psychotropic substance; (f) the importation into Australia, exportation from Australia, or possession with the intention of such importation or exportation, of a narcotic drug or psychotropic substance; (fa) the manufacture, transport or distribution of any substance listed in Table I or Table II in the Annex to the Convention or of equipment or materials, with the knowledge that the substance, equipment or materials are to be used for a purpose set out in paragraph (a), (b) or (c); (fb) organising, managing or financing a dealing in drugs referred to in paragraphs (a), (b), (c), (d), (e), (f) or (fa); (g) the possession of any substance listed in Table I or Table II in the Annex to the Convention or of any equipment or materials, with the knowledge that the substance, equipment or materials are being used or are to be used for a purpose set out in paragraph (a), (b) or (c). (2) For the purposes of this Act, each of the following is also a dealing in drugs: (a) a conspiracy or attempt to engage in conduct that is, under subsection (1), a dealing in drugs; (b) being a party to any dealing in drugs referred to in subsection (1); (ba) aiding, abetting, counselling or procuring, or being by act or omission in any way directly or indirectly knowingly concerned in, any conduct that is, under subsection (1), a dealing in drugs; (c) inciting to, urging or encouraging, any conduct that is, under subsection (1), a dealing in drugs. 7 Meaning of flight in relation to aircraft For the purposes of this Act: (a) a flight of an aircraft commences: (i) at the time of the closing of the last external door of the aircraft to be closed before the aircraft first moves for the purpose of taking off from any place; or (ii) if subparagraph (i) is not applicable—at the time at which the aircraft first moves for the purpose of taking off from any place; and (b) a flight of an aircraft ends: (i) at the time of the opening of the first external door of the aircraft to be opened after the aircraft comes to rest after its next landing after the commencement of the flight; or (ii) if subparagraph (i) is not applicable—at the time at which the aircraft comes to rest after its next landing after the commencement of the flight; or, if the aircraft is destroyed, or the flight is abandoned, before either subparagraph (i) or subparagraph (ii) becomes applicable, at the time at which the aircraft is destroyed or the flight is abandoned, as the case may be. 8 Meaning of ship at sea For the purposes of this Act, a ship is taken to be at sea when it is not within: (a) the limits of a State or Territory; or (b) the limits of a foreign country. 8A Proof of knowledge, intent or purpose (1) If a particular knowledge, intent or purpose is an element of an offence against this Act, that knowledge, intent or purpose may be inferred from objective factual circumstances. (2) Subsection (1) is not intended to exclude or limit any other way of proving knowledge, intent or purpose as an element of an offence for the purposes of a prosecution. Part 2—Offences 9 Possession of equipment etc. (1) A person who has in his or her possession, in Australia, any substance listed in Table I or II in the Annex to the Convention, or any equipment or materials, knowing that the substance, equipment or materials are being used or are to be used in, or for, a dealing in drugs that: (a) is referred to in paragraph 6(1)(a), (b) or (c); and (b) constitutes an offence against: (i) a law of the Commonwealth; or (ii) a law of a State or Territory; or (iii) a law of a foreign country; commits an offence against this section and is punishable, on conviction, by imprisonment for a period not exceeding: (c) if the substance, equipment or materials are being used or are to be used in, or for, the manufacture, extraction or preparation of a psychotropic substance referred to in Part 2 of Schedule 3—5 years; or (d) in any other case—10 years. (2) For the purposes of an offence against this section, absolute liability applies to the following physical elements of circumstance of the offence: (a) that the possession is in Australia; (b) that the substance possessed is listed in Table I or II in the Annex to the Convention; (c) that the dealing in drugs in which, or for which, the substance, equipment or materials are being used or are to be used is a dealing in drugs described in paragraphs (1)(a) and (b). Note: For absolute liability see section 6.2 of the Criminal Code. 10 Dealing in drugs on board an Australian aircraft (1) A person commits an offence against this section if: (a) the person, on board an Australian aircraft in flight, whether in or outside Australia, engages in conduct that is a dealing in drugs; and (b) the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory. (2) This section does not apply in relation to conduct engaged in by a person on board an Australian aircraft in flight between 2 places in the same State or in the same Territory. (3) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence: (a) that the conduct is engaged in on board an Australian aircraft in flight, whether in or outside Australia; (b) that the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory; (c) if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia; (d) if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention. Note: For absolute liability see section 6.2 of the Criminal Code. 11 Dealing in drugs on board an Australian ship (1) A person commits an offence against this section if: (a) the person, on board an Australian ship at sea, engages in conduct that is a dealing in drugs; and (b) the conduct if engaged in by the person in a State or Territory would constitute an offence against a law of the Commonwealth. (2) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence: (a) that the conduct is engaged in on board an Australian ship at sea; (b) that the conduct if engaged in by the person in a State or Territory would constitute an offence against a law of the Commonwealth; (c) if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia; (d) if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention. Note: For absolute liability see section 6.2 of the Criminal Code. 12 Dealing in drugs outside Australia (1) A person commits an offence against this section if: (a) the person engages, outside Australia, in conduct that is a dealing in drugs; and (b) the conduct constitutes an offence against the law of a foreign country; and (c) the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory. (2) A person may be charged with an offence against this section only if: (a) the person is present in Australia; and (b) if the person is not an Australian citizen: (i) no steps have been taken by the foreign country referred to in paragraph (1)(b) for the surrender of the person to that country; or (ii) proceedings taken by that country under the Extradition Act 1988 have not resulted in the person being surrendered to that country. (3) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence: (a) that the conduct is engaged in outside Australia; (b) that the conduct constitutes an offence against the law of a foreign country; (c) that the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory; (d) if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia; (e) if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention. Note: For absolute liability see section 6.2 of the Criminal Code. 13 Dealing in drugs outside Australia with a view to commission of offence in Australia etc. (1) A person commits an offence against this section if the person engages, outside Australia, in conduct that is a dealing in drugs with a view to the carrying out: (a) in Australia; or (b) on board an Australian aircraft in flight outside Australia; or (c) on board an Australian ship at sea; of a dealing in drugs that constitutes an offence against a law of the Commonwealth, of a State or of a Territory. (2) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence: (a) that the conduct is engaged in outside Australia; (b) that the view to the carrying out of a dealing in drugs with which the conduct is engaged in, is a view to the carrying out of such a dealing: (i) in Australia; or (ii) on board an Australian aircraft in flight outside Australia; or (iii) on board an Australian ship at sea; (c) that the carrying out of the dealing in drugs referred to in paragraph (b) constitutes an offence against a law of the Commonwealth, of a State or of a Territory; (d) if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia; (e) if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention. Note: For absolute liability see section 6.2 of the Criminal Code. 14 Conspiracy etc. outside Australia to commit offence inside Australia (1) A person who, by conduct engaged in outside Australia: (a) conspires, or attempts, to carry out in a State or Territory; or (b) aids, abets, counsels or procures, or is in any way directly or indirectly knowingly concerned in, or party to, the carrying out in a State or Territory of; a dealing in drugs referred to in subsection 6(1) that constitutes an offence against a law of that State or Territory commits an offence against this section and is punishable, on conviction, by the same penalty as would be applicable if the person were convicted of the first‑mentioned offence. (2) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence: (a) that the conduct is engaged in outside Australia; (b) that the dealing in drugs is carried out, or is to be carried out, in a State or Territory; (c) that the carrying out of the dealing in drugs constitutes an offence against a law of that State or Territory; (d) if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia; (e) if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention. Note: For absolute liability see section 6.2 of the Criminal Code. 15 Penalties for offences against sections 10 to 13 (1) A person convicted of an offence against section 10, 11, 12 or 13 is punishable in accordance with this section. [Penalty where offence involves cultivation of opium poppy etc.] (2) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6(1)(a), the penalty is imprisonment for a period not exceeding such period as is applicable in accordance with the following table: TABLE Maximum Period of Imprisonment Kind of cultivation If more than 1000 plants cultivated If not more than 1000 but more than 20 plants cultivated If not more than 20 but more than 5 plants cultivated If not more than 5 plants cultivated Cultivation of opium poppy and coca bush Life 25 years 10 years 5 years Cultivation of cannabis plant Life 10 years 5 years 2 years [Penalty where offence involves separation of opium etc. from plant] (3) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6(1)(b), the penalty is imprisonment for a period not exceeding 10 years. [Penalty where offence involves manufacture etc., or possession for manufacture etc., of narcotic drug etc.] (4) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6(1)(c) or (d), the penalty for the offence is imprisonment for a period not exceeding: (a) if the dealing is in respect of a narcotic drug or a psychotropic substance referred to in Part 1 of Schedule 3—10 years; or (b) if the dealing is in respect of a psychotropic substance referred to in Part 2 of Schedule 3—5 years. [Penalty where offence involves sale, supply, or possession for sale or supply, of narcotic drug etc.] (5) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6(1)(e), the penalty is imprisonment for a period not exceeding: (a) if the dealing is in respect of a narcotic drug or a psychotropic substance referred to in Part 1 of Schedule 3—such period as is applicable in accordance with the table set out at the end of this subsection; or (b) if the dealing is in respect of a psychotropic substance referred to in Part 2 of Schedule 3—2 years. TABLE Maximum Period of Imprisonment Quantity of drug or substance Where cannabis sold or supplied In any other case If a commercial quantity of the drug or substance was sold, supplied or possessed Life Life If a traffickable quantity of the drug or substance was sold, supplied or possessed 10 years 25 years If less than a traffickable quantity of the drug or substance was sold, supplied or possessed 2 years 5 years [Penalty where offence involves importation, exportation, or possession for importation or exportation, of narcotic drug etc.] (6) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6(1)(f): (a) if the court is satisfied that: (i) the narcotic drug or psychotropic substance that is the subject matter of the dealing was imported into Australia, or exported from Australia, with the intention of sale or supply; or (ii) the person possessed the narcotic drug or psychotropic substance with the intention of importation into Australia, or exportation from Australia, with the intention of sale or supply; the person is punishable as if the person had sold or supplied the drug or substance or possessed it with the intention of sale or supply (as the case may be); or (b) if paragraph (a) does not apply—the penalty is imprisonment for a period not exceeding: (i) if the dealing is in respect of a narcotic drug or a psychotropic substance referred to in Part 1 of Schedule 3—2 years; or (ii) if the dealing is in respect of a psychotropic substance referred to in Part 2 of Schedule 3—12 months. [Penalty where offence involves possession of specified substance etc.] (7) Where the person committed the offence by engaging in conduct that is a dealing in drugs referred to in paragraph 6(1)(g), the person is punishable as if the person had been convicted of an offence against section 9. [Penalty for conspiring etc.] (8) Where the person committed the offence by: (a) conspiring, or attempting, to engage in; or (b) aiding, abetting, counselling or procuring, or being by act or omission in any way directly or indirectly knowingly concerned in, or a party to; or (c) inciting to, urging or encouraging; any conduct that is, under subsection 6(1), a dealing in drugs, the person is punishable as if the person had actually engaged in that conduct. 15A Intentionally converting etc. property derived from a serious State drug offence (1) Any person who, knowing that any property was derived from a serious State drug offence, in a State other than a prescribed State or a Territory other than a prescribed Territory: (a) converts that property to his or her own use or to the use of another person; or (b) transfers that property to another person; with the intention of: (c) concealing or disguising that the property was derived from the offence; or (d) assisting another person involved in the commission of the offence to evade the legal consequences of that involvement; commits an offence punishable, on conviction, by imprisonment for a period not exceeding 20 years. (2) For the purposes of an offence against this section, absolute liability applies to the physical element of circumstance of the offence, that the conversion or transfer of property takes place in: (a) a State other than a prescribed State; or (b) a Territory other than a prescribed Territory. Note: For absolute liability, see section 6.2 of the Criminal Code. 15B Intentionally concealing etc. property derived from a serious State drug offence (1) Any person who, knowing that any property was derived from a serious State drug offence, in a State other than a prescribed State or a Territory other than a prescribed Territory, conceals or disguises: (a) the nature, source, or location, of the property; or (b) any movement of the property; or (c) the rights of any person with respect to the property; or (d) the identity of any owner of the property; commits an offence punishable, on conviction, by imprisonment for a period not exceeding 20 years. (2) For the purposes of an offence against this section, absolute liability applies to the physical element of circumstance of the offence, that the concealing or disguising takes place in: (a) a State other than a prescribed State; or (b) a Territory other than a prescribed Territory. Note: For absolute liability, see section 6.2 of the Criminal Code. 15C Intentionally acquiring etc. property derived from a serious State drug offence (1) If: (a) a person, in a State other than a prescribed State or a Territory other than a prescribed Territory, acquires, has in his or her possession or uses any property; and (b) the person knows or knew at the time when he or she receives or received the property that it was derived from a serious State drug offence; the person commits an offence punishable, on conviction, by imprisonment for a period not exceeding 20 years. (2) For the purposes of an offence against this section, absolute liability applies to the physical element of circumstance of the offence, that the acquisition, possession or use is in: (a) a State other than a prescribed State; or (b) a Territory other than a prescribed Territory. Note: For absolute liability, see section 6.2 of the Criminal Code. Part 3—Miscellaneous 16 Prosecutions (1) Proceedings for the commitment of a person for trial on indictment for an offence against this Act may not be instituted without the consent in writing of the Attorney‑General. (2) Even though a consent in accordance with subsection (1) has not been given in relation to an offence against this Act: (a) a person may be charged with an offence against this Act; and (b) a person may be arrested for such an offence, and a warrant for such an arrest may be issued and executed; and (c) a person so charged may be remanded in custody or on bail; but no further step in proceedings referred to in subsection (1) may be taken until such a consent has been given. (3) Subsection (2) does not prevent the discharge of the accused if proceedings are not continued within a reasonable time. 17 Presumption that traffickable quantity etc. of narcotic drug etc. is for sale or supply For the purposes of this Act, where a person: (a) has in his or her possession; or (b) imports into, or exports from, Australia; or (c) has in his or her possession with the intention of importation into, or exportation from, Australia; a traffickable quantity or a commercial quantity of a narcotic drug or of a psychotropic substance specified in Part 1 of Schedule 3, it is presumed that: (d) the possession; or (e) the importation or exportation; or (f) the intended importation or exportation; as the case may be, is with the intention of sale or supply, but that presumption is rebuttable. 18 Venue where offence committed on aircraft Where, in the trial on indictment in a court of a State or Territory of an offence against this Act committed on an aircraft in flight, an act constituting in whole or in part the offence charged is proved, it must be presumed, unless the evidence shows the contrary, that that act did not take place in another part of Australia, being a State. 19 Change of venue (1) Where, at any time after the presentation in a court of a State or Territory of an indictment for an offence against this Act committed on an aircraft in flight and before the jury has returned its verdict: (a) the defendant objects to the trial on the ground that the offence, if committed, was committed in another part of Australia, being a State; and (b) the court is satisfied that the offence, if committed, was committed in that other part of Australia; the court must forthwith order that the proceedings on the indictment be discontinued and, if the jury has been empanelled, that the jury be discharged, and that the defendant appear before that court or another court of the first‑mentioned State or Territory at a specified time, not later than 28 days after the day on which the order is made, to be dealt with in accordance with this section. (2) Where a court makes an order under subsection (1), the court may also: (a) order that the defendant be kept in such custody as is specified in the order; or (b) admit the defendant to bail, on such recognizances as the court thinks fit. (3) If, before the time at which the defendant is to appear before a court pursuant to an order under subsection (1), the Attorney‑General or the Director of Public Prosecutions notifies that court that he or she does not intend to file an indictment against the defendant in a court of another part of Australia, the first‑mentioned court must, as soon as practicable after being so notified, make an order: (a) discharging the defendant from the obligation to appear before that court at that time; and (b) directing: (i) if the defendant is held in custody—that he or she be released; or (ii) if he or she has been admitted to bail—that the recognizances upon which he or she was admitted to bail be discharged. (4) If, at or before the time at which the defendant is to appear before a court pursuant to an order under subsection (1), the Attorney‑General or the Director of Public Prosecutions notifies that court that he or she has filed an indictment against the defendant in a court of another part of Australia, the first‑mentioned court must: (a) if the defendant is in custody—forthwith; or (b) in any other case—as soon as practicable after the time at which the defendant is to appear before that court; make an order directing that the defendant be taken, as soon as practicable, in the custody of such person as it directs, to the part of Australia in which the indictment was filed and there be delivered to the custody of a person having authority to arrest the defendant, and may make such further orders as it thinks necessary for facilitating the carrying into effect of the first‑mentioned order. (5) If: (a) at the time at which the defendant is to appear before a court pursuant to an order under subsection (1), neither the Attorney‑General nor the Director of Public Prosecutions has notified that court that he or she does not intend to file an indictment against the defendant in a court in another part of Australia; and (b) neither the Attorney‑General nor the Director of Public Prosecutions notifies the first‑mentioned court before or at that time that he or she has filed such an indictment; and (c) the defendant is in custody; the first‑mentioned court must, at that time, make an order directing that the defendant be released. (6) Where an order has been made under subsection (1) in relation to an indictment, the proceedings on that indictment do not, and that order does not, prevent or prejudice any other indictment, or any information, against the defendant, whether on the same charge or on any other charge. (7) The jurisdiction of a court under subsection (3), (4) or (5) may be exercised by the court constituted by a single judge or magistrate. 20 Certificates by Foreign Affairs Minister (1) The Foreign Affairs Minister may give a written certificate stating that: (a) the Convention entered into force for Australia on a particular day; and (b) as at the date of the certificate, the Convention remains in force for Australia. (2) A certificate given under subsection (1) is admissible in any proceedings as prima facie evidence of the matters stated in the certificate. 21 Section 38 of Judiciary Act A matter arising under this Act, including a question of interpretation of the Convention for the purposes of this Act, is not, for the purposes of section 38 of the Judiciary Act 1903, a matter arising directly under a treaty. 22 Regulations (1) The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The Governor‑General may not make regulations prescribing a State or Territory for the purposes of section 15A, 15B or 15C (in this subsection called the relevant section) unless the Governor‑General is satisfied that any conduct that, immediately before the making of the regulations, is an offence against the relevant section is also an offence against a law of that State or Territory. (3) For the purposes of the Legislation Act 2003, the Minister administering the Australian Federal Police Act 1979 is the rule‑maker for regulations made for the purposes of this Act. (4) Subsection (3) applies despite subsection 6(1) of the Legislation Act 2003. Schedule 1—United Nations Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances Section 3 Adopted by the Conference at its 6th plenary meeting, on 19 December 1988 The Parties to this Convention, Deeply concerned by the magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society, Deeply concerned also by the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity, Recognizing the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States, Recognizing also that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority, Aware that illicit traffic generates large financial profits and wealth enabling transnational criminal organizations to penetrate, contaminate and corrupt the structures of government, legitimate commercial and financial business, and society at all its levels, Determined to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for so doing, Desiring to eliminate the root causes of the problem of abuse of narcotic drugs and psychotropic substances, including the illicit demand for such drugs and substances and the enormous profits derived from illicit traffic, Considering that measures are necessary to monitor certain substances, including precursors, chemicals and solvents, which are used in the manufacture of narcotic drugs and psychotropic substances, the ready availability of which has led to an increase in the clandestine manufacture of such drugs and substances, Determined to improve international co‑operation in the suppression of illicit traffic by sea, Recognizing that eradication of illicit traffic is a collective responsibility of all States and that, to that end, co‑ordinated action within the framework of international co‑operation is necessary, Acknowledging the competence of the United Nations in the field of control of narcotic drugs and psychotropic substances and desirous that the international organs concerned with such control should be within the framework of that Organization, Reaffirming the guiding principles of existing treaties in the field of narcotic drugs and psychotropic substances and the system of control which they embody, Recognizing the need to reinforce and supplement the measures provided in the Single Convention on Narcotic Drugs, 1961, that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, and the 1971 Convention on Psychotropic Substances, in order to counter the magnitude and extent of illicit traffic and its grave consequences, Recognizing also the importance of strengthening and enhancing effective legal means for international co‑operation in criminal matters for suppressing the international criminal activities of illicit traffic, Desiring to conclude a comprehensive, effective and operative international convention that is directed specifically against illicit traffic and that considers the various aspects of the problem as a whole, in particular those aspects not envisaged in the existing treaties in the field of narcotic drugs and psychotropic substances, Hereby agree as follows: Article 1 DEFINITIONS Except where otherwise expressly indicated or where the context otherwise requires, the following definitions shall apply throughout this Convention: (a) "Board" means the International Narcotics Control Board established by the Single Convention on Narcotic Drugs, 1961, and that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961; (b) "Cannabis plant" means any plant of the genus Cannabis; (c) "Coca bush" means the plant of any species of the genus Erythroxylon; (d) "Commercial carrier" means any person or any public, private or other entity engaged in transporting persons, goods or mails for remuneration, hire or any other benefit; (e) "Commission" means the Commission on Narcotic Drugs of the Economic and Social Council of the United Nations; (f) "Confiscation", which includes forfeiture where applicable, means the permanent deprivation of property by order of a court or other competent authority; (g) "Controlled delivery" means the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances, substances in Table I and Table II annexed to this Convention, or substances substituted for them, to pass out of, through or into the territory of one or more countries, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences established in accordance with article 3, paragraph 1 of the Convention; (h) "1961 Convention" means the Single Convention on Narcotic Drugs, 1961; (i) "1961 Convention as amended" means the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961; (j) "1971 Convention" means the Convention on Psychotropic Substances, 1971; (k) "Council" means the Economic and Social Council of the United Nations; (l) "Freezing" or "seizure" means temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or a competent authority; (m) "Illicit traffic" means the offences set forth in article 3, paragraphs 1 and 2, of this Convention; (n) "Narcotic drug" means any of the substances, natural or synthetic, in Schedules I and II of the Single Convention on Narcotic Drugs, 1961, and that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961; (o) "Opium poppy" means the plant of the species Papaver somniferum L; (p) "Proceeds" means any property derived from or obtained, directly or indirectly, through the commission of an offence established in accordance with article 3, paragraph 1; (q) "Property "means assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to, or interest in, such assets; (r) "Psychotropic substance" means any substance, natural or synthetic, or any natural material in Schedules I, II, III and IV of the Convention on Psychotropic Substances, 1971; (s) "Secretary‑General" means the Secretary‑General of the United Nations; (t) "Table I" and "Table II" mean the correspondingly numbered lists of substances annexed to this Convention, as amended from time to time in accordance with article 12; (u) "Transit State" means a State through the territory of which illicit narcotic drugs, psychotropic substances and substances in Table I and Table II are being moved, which is neither the place of origin nor the place of ultimate destination thereof. Article 2 SCOPE OF THE CONVENTION 1. The purpose of this Convention is to promote co‑operation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension. In carrying out their obligations under the Convention, the Parties shall take necessary measures, including legislative and administrative measures, in conformity with the fundamental provisions of their respective domestic legislative systems. 2. The Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non‑intervention in the domestic affairs of other States. 3. A Party shall not undertake in the territory of another Party the exercise of jurisdiction and performance of functions which are exclusively reserved for the authorities of that other Party by its domestic law. Article 3 OFFENCES AND SANCTIONS 1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: (a) (i) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention; (ii) The cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and the 1961 Convention as amended; (iii) The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (i) above; (iv) The manufacture, transport or distribution of equipment, materials or of substances listed in Table I and Table II, knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; (v) The organization, management or financing of any of the offences enumerated in (i), (ii), (iii) or (iv) above; (b) (i) The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with subparagraph (a) of this paragraph, or from an act of participation in such offence or offences, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions; (ii) The concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with subparagraph (a) of this paragraph or from an act of participation in such an offence or offences; (c) Subject to its constitutional principles and the basic concepts of its legal system: (i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences established in accordance with subparagraph (a) of this paragraph or from an act of participation in such offence or offences; (ii) The possession of equipment or materials or substances listed in Table I and Table II, knowing that they are being or are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; (iii) Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly; (iv) Participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article. 2. Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention. 3. Knowledge, intent or purpose required as an element of an offence set forth in paragraph 1 of this article may be inferred from objective factual circumstances. 4. (a) Each Party shall make the commission of the offences established in accordance with paragraph 1 of this article liable to sanctions which take into account the grave nature of these offences, such as imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation. (b) The Parties may provide, in addition to conviction or punishment, for an offence established in accordance with paragraph 1 of this article, that the offender shall undergo measures such as treatment, education, aftercare, rehabilitation or social reintegration. (c) Notwithstanding the preceding subparagraphs, in appropriate cases of a minor nature, the Parties may provide, as alternatives to conviction or punishment, measures such as education, rehabilitation or social reintegration, as well as, when the offender is a drug abuser, treatment and aftercare. (d) The Parties may provide, either as an alternative to conviction or punishment, or in addition to conviction or punishment of an offence established in accordance with paragraph 2 of this article, measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender. 5. The Parties shall ensure that their courts and other competent authorities having jurisdiction can take into account factual circumstances which make the commission of the offences established in accordance with paragraph 1 of this article particularly serious, such as: (a) The involvement in the offence of an organized criminal group to which the offender belongs; (b) The involvement of the offender in other international organized criminal activities; (c) The involvement of the offender in other illegal activities facilitated by commission of the offence; (d) The use of violence or arms by the offender; (e) The fact that the offender holds a public office and that the offence is connected with the office in question; (f) The victimization or use of minors; (g) The fact that the offence is committed in a penal institution or in an educational institution or social service facility or in their immediate vicinity or in other places to which school children and students resort for educational, sports and social activities; (h) Prior conviction, particularly for similar offences, whether foreign or domestic, to the extent permitted under the domestic law of a Party. 6. The Parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences. 7. The Parties shall ensure that their courts or other competent authorities bear in mind the serious nature of the offences enumerated in paragraph 1 of this article and the circumstances enumerated in paragraph 5 of this article when considering the eventuality of early release or parole of persons convicted of such offences. 8. Each Party shall, where appropriate, establish under its domestic law a long statute of limitations period in which to commence proceedings for any offence established in accordance with paragraph 1 of this article, and a longer period where the alleged offender has evaded the administration of justice. 9. Each Party shall take appropriate measures, consistent with its legal system, to ensure that a person charged with or convicted of an offence established in accordance with paragraph 1 of this article, who is found within its territory, is present at the necessary criminal proceedings. 10. For the purpose of co‑operation among the Parties under this Convention, including, in particular, co‑operation under articles 5, 6, 7 and 9, offences established in accordance with this article shall not be considered as fiscal offences or as political offences or regarded as politically motivated, without prejudice to the constitutional limitations and the fundamental domestic law of the Parties. 11. Nothing contained in this article shall affect the principle that the description of the offences to which it refers and of legal defences thereto is reserved to the domestic law of a Party and that such offences shall be prosecuted and punished in conformity with that law. Article 4 JURISDICTION 1. Each Party: (a) Shall take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when: (i) The offence is committed in its territory; (ii) The offence is committed on board a vessel flying its flag or an aircraft which is registered under its laws at the time the offence is committed; (b) May take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when: (i) The offence is committed by one of its nationals or by a person who has his habitual residence in its territory; (ii) The offence is committed on board a vessel concerning which that Party has been authorized to take appropriate action pursuant to article 17, provided that such jurisdiction shall be exercised only on the basis of agreements or arrangements referred to in paragraphs 4 and 9 of that article; (iii) The offence is one of those established in accordance with article 3, paragraph 1, subparagraph (c) (iv), and is committed outside its territory with a view to the commission, within its territory, of an offence established in accordance with article 3, paragraph 1. 2. Each Party: (a) Shall also take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when the alleged offender is present in its territory and it does not extradite him to another Party on the ground: (i) That the offence has been committed in its territory or on board a vessel flying its flag or an aircraft which was registered under its law at the time the offence was committed; or (ii) That the offence has been committed by one of its nationals; (b) May also take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when the alleged offender is present in its territory and it does not extradite him to another Party. 3. This Convention does not exclude the exercise of any criminal jurisdiction established by a Party in accordance with its domestic law. Article 5 CONFISCATION 1. Each Party shall adopt such measures as may be necessary to enable confiscation of: (a) Proceeds derived from offences established in accordance with article 3, paragraph 1, or property the value of which corresponds to that of such proceeds; (b) Narcotic drugs and psychotropic substances, materials and equipment or other instrumentalities used in or intended for use in any manner in offences established in accordance with article 3, paragraph 1. 2. Each Party shall also adopt such measures as may be necessary to enable its competent authorities to identify, trace, and freeze or seize proceeds, property, instrumentalities or any other things referred to in paragraph 1 of this article, for the purpose of eventual confiscation. 3. In order to carry out the measures referred to in this article, each Party shall empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized. A Party shall not decline to act under the provisions of this paragraph on the ground of bank secrecy. 4. (a) Following a request made pursuant to this article by another Party having jurisdiction over an offence established in accordance with article 3, paragraph 1, the Party in whose territory proceeds, property, instrumentalities or any other things referred to in paragraph 1 of this article are situated shall: (i) Submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, give effect to it; or (ii) Submit to its competent authorities, with a view to giving effect to it to the extent requested, an order of confiscation issued by the requesting Party in accordance with paragraph 1 of this article, in so far as it relates to proceeds, property, instrumentalities or any other things referred to in paragraph 1 situated in the territory of the requested Party. (b) Following a request made pursuant to this article by another Party having jurisdiction over an offence established in accordance with article 3, paragraph 1, the requested Party shall take measures to identify, trace, and freeze or seize proceeds, property, instrumentalities or any other things referred to in paragraph 1 of this article for the purpose of eventual confiscation to be ordered either by the requesting Party or, pursuant to a request under subparagraph (a) of this paragraph, by the requested Party. (c) The decisions or actions provided for in subparagraphs (a) and (b) of this paragraph shall be taken by the requested Party, in accordance with and subject to the provisions of its domestic law and its procedural rules or any bilateral or multilateral treaty, agreement or arrangement to which it may be bound in relation to the requesting Party. (d) The provisions of article 7, paragraphs 6 to 19 are applicable mutatis mutandis. In addition to the information specified in article 7, paragraph 10, requests made pursuant to this article shall contain the following: (i) In the case of a request pertaining to subparagraph (a) (i) of this paragraph, a description of the property to be confiscated and a statement of the facts relied upon by the requesting Party sufficient to enable the requested Party to seek the order under its domestic law; (ii) In the case of a request pertaining to subparagraph (a) (ii), a legally admissible copy of an order of confiscation issued by the requesting Party upon which the request is based, a statement of the facts and information as to the extent to which the execution of the order is requested; (iii) In the case of a request pertaining to subparagraph (b), a statement of the facts relied upon by the requesting Party and a description of the actions requested. (e) Each Party shall furnish to the Secretary‑General the text of any of its laws and regulations which give effect to this paragraph and the text of any subsequent changes to such laws and regulations. (f) If a Party elects to make the taking of the measures referred to in subparagraphs (a) and (b) of this paragraph conditional on the existence of a relevant treaty, that Party shall consider this Convention as the necessary and sufficient treaty basis. (g) The Parties shall seek to conclude bilateral and multilateral treaties, agreements or arrangements to enhance the effectiveness of international co‑operation pursuant to this article. 5. (a) Proceeds or property confiscated by a Party pursuant to paragraph 1 or paragraph 4 of this article shall be disposed of by that Party according to its domestic law and administrative procedures. (b) When acting on the request of another Party in accordance with this article, a Party may give special consideration to concluding agreements on: (i) Contributing the value of such proceeds and property, or funds derived from the sale of such proceeds or property, or a substantial part thereof, to intergovernmental bodies specializing in the fight against illicit traffic in and abuse of narcotic drugs and psychotropic substances; (ii) Sharing with other Parties, on a regular or case‑by‑case basis, such proceeds or property, or funds derived from the sale of such proceeds or property, in accordance with its domestic law, administrative procedures or bilateral or multilateral agreements entered into for this purpose. 6. (a) If proceeds have been transformed or converted into other property, such property shall be liable to the measures referred to in this article instead of the proceeds. (b) If proceeds have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to seizure or freezing, be liable to confiscation up to the assessed value of the intermingled proceeds. (c) Income or other benefits derived from: (i) Proceeds; (ii) Property into which proceeds have been transformed or converted; or (iii) Property with which proceeds have been intermingled shall also be liable to the measures referred to in this article, in the same manner and to the same extent as proceeds. 7. Each Party may consider ensuring that the onus of proof be reversed regarding the lawful origin of alleged proceeds or other property liable to confiscation, to the extent that such action is consistent with the principles of its domestic law and with the nature of the judicial and other proceedings. 8. The provisions of this article shall not be construed as prejudicing the rights of bona fide third parties. 9. Nothing contained in this article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with and subject to the provisions of the domestic law of a Party. Article 6 EXTRADITION 1. This article shall apply to the offences established by the Parties in accordance with article 3, paragraph 1. 2. Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. The Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them. 3. If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of any offence to which this article applies. The Parties which require detailed legislation in order to use this Convention as a legal basis for extradition shall consider enacting such legislation as may be necessary. 4. The Parties which do not make extradition conditional on the existence of a treaty shall recognize offences to which this article applies as extraditable offences between themselves. 5. Extradition shall be subject to the conditions provided for by the law of the requested Party or by applicable extradition treaties, including the grounds upon which the requested Party may refuse extradition. 6. In considering requests received pursuant to this article, the requested State may refuse to comply with such requests where there are substantial grounds leading its judicial or other competent authorities to believe that compliance would facilitate the prosecution or punishment of any person on account of his race, religion, nationality or political opinions, or would cause prejudice for any of those reasons to any person affected by the request. 7. The Parties shall endeavour to expedite extradition procedures and to simplify evidentiary requirements relating there