Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 Passed Senate in Commonwealth

Monday 16 February 2015 @ 1.02 p.m. | Crime

The Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 passed through the Senate on 9 February 2015 and has been stated by the Minister for Justice to be "clos[ing] a loophole that allowed criminals to avoid prosecution for trafficking firearm parts into Australia."

Background to the Bill

According to the Explanatory Memorandum, the Bill contains a range of measures to improve Commonwealth criminal justice arrangements, including amendments to:

  • Ban the importation of all substances that have a psychoactive effect that are not otherwise regulated or banned;
  • Ensure that Australian Customs and Border Protection (ACBPS) officers have appropriate powers to stop these substances at the border;
  • Correct an error in the definition of a minimum marketable quantity in respect of a drug analogue of one or more listed border controlled drugs;
  • Introduce new international firearms trafficking offences, amend existing cross-border firearms offences and introduce mandatory minimum sentences of five years‘ imprisonment for these offences;
  • Streamline the international transfer of prisoners regime within Australia and clarify the processes involved amend certain slavery offences to clarify they have universal jurisdiction; and
  • Validate access by the Australian Federal Police (AFP) to certain investigatory powers in designated State airports. 

In particular, the purpose of the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 (the Bill) is to:

  • amend the Criminal Code Act 1995 (Cth) (Criminal Code) by:
    • inserting new offences for importing psychoactive substances and those represented to be alternatives to illicit drugs (Schedule 1);
    • updating existing firearms trafficking offences and inserting new offences for international firearms trafficking (Schedule 2); and
    • applying the broadest level of extended geographical jurisdiction to slavery offences (Schedule 4);
  • amend the Customs Act 1901 (Cth) to enable Australian Customs and Border Protection Service (Customs) officers to exercise relevant powers in relation to suspected psychoactive substances and those represented to be alternatives to illicit drugs (Schedule 1) and in relation to suspected international firearms trafficking offences (Schedule 2)
  • amend the International Transfer of Prisoners Act 1997 (Cth) to clarify its application and streamline the processing of applications for transfer (Schedule 3)
  • retrospectively validate the use of federal police powers in investigations of applied State offences at designated airports between March and May 2014 (Schedule 5) and
  • make several minor and technical amendments to the Criminal Code, the Customs Act 1901 (Cth), the Financial Transaction Reports Act 1988 (Cth) and the Surveillance Devices Act 2004 (Cth) (Schedule 6)

Psychoactive Drug Reforms

According to the Bills Digest, the United Nations Office on Drugs and Crime (UNODC) uses the term ‘new psychoactive substances’ (NPS) to refer to ‘substances of abuse, either in a pure form or a preparation, that are not controlled by the 1961 Single Convention on Narcotic Drugs or the 1971 Convention on Psychotropic Substances, but which may pose a public health threat’. While they may fall outside the international drug treaties and are sometimes referred to or marketed as ‘legal highs’, some NPS are prohibited under a number of countries’ national and/or state laws, including Australia’s. However, one of the main challenges of dealing with NPS, and that which the amendments in Schedule 1 of the Bill are designed to address, is that once a substance is prohibited, it is quickly replaced by something similar that evades the specific prohibition.

According to the Minister for Justice:

"This bill changes the dynamic. From now, the government will be in front. The bill will introduce offences into the Criminal Code to ban the importation of substances based on their psychoactive effect and where they are presented as alternatives to illicit drugs. It will also amend the Customs Act to allow officers of the Australian Customs and Border Protection Service and the Australian Federal Police to stop these drugs, seize them and destroy them before they can be put on the market. "

Firearms Trafficking Reforms

According to the Bills Digest, amendments to extend the application of Commonwealth firearms trafficking offences to firearm parts and introduce new offences for international firearms trafficking were previously included in the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012, which lapsed ahead of the 2013 Federal election. The Coalition committed to the introduction of mandatory minimum sentences for Commonwealth firearms offences during the 2013 Federal election campaign as part of its Policy to Tackle Crime.

 According to the Minister for Justice:

"Currently, criminals could potentially evade firearms trafficking offences and penalties by breaking firearms down and trafficking their constituent parts. This bill will close this gap by enabling the conviction of those who engage in the trafficking of firearm parts. "

 TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 and explanatory materials as reproduced on TimeBase LawOne

Media Release - The Hon Michael Keenan MP - 12 February 2015

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