Page 919 - Week 03 - Thursday, 10 April 2014
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Including these substances in the Criminal Code Regulation will ensure the ACT controls newly identified NPS and supports a nationally consistent approach. New psychoactive substances are presenting issues for health authorities and law enforcement around the world. At the directions of health and police ministers, the Intergovernmental Committee on Drugs, or IGCD, has been developing a framework for a national response to new psychoactive substances. Police ministers considered the progress of this work in November last year, and I expect the final results will be available for ministers to consider in the coming months.
The rate at which new NPS are emerging, and the fact that there is little available evidence of their health risks, poses challenges for identification, harm assessment and traditional regulatory responses. For this reason, the draft national response is seeking to take a principle-based approach. This approach will focus on improving detection and information sharing, including about the health and social harms associated with these substances.
The national response has also considered the approaches in other countries. The responses adopted in Ireland and New Zealand prohibit unknown psychoactive substances unless the seller can prove they are, in fact, a substance which is permitted under a law or is otherwise subject to an exception. Approaches in Ireland and New Zealand will no doubt be instructive for future decisions about how NPS should be controlled in Australia.
In reviewing the schedule of controlled drugs, Justice and Community Safety, with the assistance of ACT Health, engaged the drug policy modelling program, or DPMP, based in the National Drug and Alcohol Research Centre. The DPMP evaluated the current controlled drug trafficable quantities for the five most commonly used controlled drugs and provided advice on the harms associated with these drugs to assist in determining appropriate controlled drug trafficable quantities. Advice was also sought on how quantities of seized drugs should be measured and calculated.
The DPMP examined the trafficable thresholds under the criminal code regulation and contrasted this against four evidence-informed ways of assessing the seriousness of drug offences. The analysis demonstrated that, regardless of which measure of harm is adopted, the current legal thresholds are not proportional to the seriousness of drug trafficking offences and, instead, vary markedly, based on the particular drug and quantity that a defendant is found in possession of.
To prove trafficking, usually the prosecution must prove that the defendant actually trafficked drugs, that is, they sold the drug or they knowingly possessed the drug with the intention of selling it. Section 604 of the Criminal Code contains a reverse presumption for drug trafficking offences. It provides that if a person possessed a trafficable quantity of a controlled drug, it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence. It is therefore critical that amounts prescribed in the Criminal Code Regulation properly reflect the seriousness of the conduct because of the rebuttable presumptions for serious criminal offences.
Section 22(1) of the Human Rights Act provides that everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according
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