By Paul Gregoire and Ugur Nedim
PM Scott Morrison, home affairs minister Karen Andrews and AFP commissioner Reece Kershaw lined up before the press last June, to announce the success of the transnational drug crime investigation known locally as Operation Ironside.
Spruiked as the “most significant operation in policing history”, Ironside had, at that time, resulted in more than 250 local arrests, the seizure of 3.7 tonnes of illicit substances, foiled over 20 attempted murder plots and resulted in the shutdown of six drug labs.
The success of Operation Ironside relied upon ANOM: an encrypted messaging app that authorities had managed to distribute amongst unsuspecting criminals in 2018.
This application permitted policing agencies involved in the investigation across the planet to monitor messages that were freely sent by criminals who thought their communications were secure.
Kershaw outlined that encryption-busting laws under the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) had facilitated legally using the fake app. And these laws assisted foreign law enforcement in avoiding legal barriers in their own jurisdictions.
The AFP told the ABC last month that Operation Ironside continues. There have now been over 300 arrests locally, with more than 800 charges laid. And as these crimes involve imported drugs, the set of drug laws invoked are those set out in Commonwealth legislation.
Commonwealth drug law
Commonwealth legislation has always involved the offences relating to the importation of illicit substances, as well as their export overseas. But more recently, new Commonwealth offences have been enacted that overlap with state and territory laws.
Whether an offender receives a state, territory or Commonwealth charge in terms drug possession, manufacture or trafficking – which are crimes found within the laws of all Australian jurisdictions – is usually determined by which law enforcement body is pressing the charges.
The Commonwealth Director of Public Prosecutions (CDPP) sets out on its website that most federal drug offences are contained in part 9.1 of the Criminal Code (Cth), and they fall under four main categories: trafficking, selling and cultivation, manufacture, importing and exporting and possession.
And there are two categories of charges depending on the source of the drugs. The first involves border controlled drugs or plants, which have crossed international borders, while controlled drugs or plants refer to substances that do not have a connection to importation or exportation.
The severity of penalties that applies to controlled drug offences and border controlled drug offences are based on quantity.
The quantities fall into three main categories: commercial quantities – being the largest – then marketable quantities, and trafficable quantities being the lesser amount.
Schedule 1 of the Criminal Code Regulations 2019 (Cth) sets out the quantities for controlled drugs, plants and drug precursors. In terms of heroin, a commercial quantity is at least 1.5 kilograms, a marketable amount is 250 grams, and a trafficable quantity is 2 grams.
Schedule 2 of the Regulation provides the amounts for border controlled drugs. For substances travelling over international borders, there are only two quantity sizes, commercial and marketable, and these can vary from the quantities pertaining to the same substance under schedule 1.
So, a commercial quantity of border controlled heroin remains at least 1.5 kilograms of the drug, however a marketable amount of border controlled heroin drops down to just 2 grams.
Importing and exporting
The CDPP explains that the importation of illicit substances is rarely carried out by one offender, and therefore charges often entail “criminal liability provisions involving conspiracy, joint commission or accessorial liability in order to prosecute all those involved in an importation”.
The offences of importing and exporting border controlled drugs are set out in division 307 of the Criminal Code.
Section 307.1 contains the offence of importing or exporting a commercial quantity of a border controlled drug or plant, which carries a maximum sentence of life imprisonment and/or a $1,655,000 fine.
The offence is then followed by section 307.2 for marketable importation, which carries 25 years inside and/or a fine of $1,110,000. Then section 307.3 covers the basic importation of a border controlled drug or plant, with a 10 year maximum applying and/or a fine of $88,800.
These offences are followed by a series of possession of imported border controlled drug or plant crimes with the same sliding scale of quantities and penalties that apply to importation, while a set of subsequent importation of precursors offences carry less severe sanctions.
Controlled drug offences
Division 302 of the Criminal Code contains trafficking offences. Section 302.2 contains the offence of trafficking a commercial quantity of a controlled drug, which carries the same penalties as importing commercial quantities of a drug.
This crime is followed by the offence of trafficking in marketable amounts and then the offence of trafficking in controlled drugs in general. The maximums for these offences follow the same sliding scale as importation penalties.
Division 303 involves cultivation of controlled plant offences. Section 303.4 contains the offence of cultivating a commercial amount of a plant, with similar penalties to trafficking. And this is followed by cultivating marketable quantities of a plant and cultivation in general, which follow the pattern.
Division 304 contains the offences pertaining to selling a prohibited plant, with the same quantity and sanction breakdown.
Division 305 follows the offence and sanction pattern for the manufacturing of a controlled drug. However, there are a set of steeper penalties for an aggravated marketable manufacturing offence and aggravated manufacture in general.
Division 306 carries crimes relating to trafficking in controlled precursors, while division 309 contains a series of crimes relating to drug offences that entail the involvement of a child.
Similar crimes different jurisdictions
Prior to 2005, federal law only involved importing or exporting drug offences, which were set out in the Customs Act 1901 (Cth).
However, the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005 inserted part 9.1 into the Criminal Code.
The bill’s explanatory memorandum explains that the overlapping between the new federal offences and those that already appeared in state and territory law is similar to what occurs with terrorism offences, fraud and computer crimes.
“It is intended that drug offences will continue to be investigated in accordance with the established division of responsibility between federal and state and territory law enforcement agencies,” the document adds.
Ineffective, none the less
Yet, in terms of large importation drug busts, both drug war critics and law enforcement agencies are well aware that the substantial detected amounts of illicit substances that are seized at the border don’t really have any effect on drug availability at the street level in Australia.
The NSW Crime Commission Annual Report 2015-16 sets out that while “commendable law enforcement efforts around the country have resulted in larger seizures and more arrests,” these busts “have had little, if any, effect on the quantities of prohibited drugs available”.
Regardless of the law enforcement hauls, the report adds, offshore interests decide the quantity of drugs that enter Australia, and the local drug market simply consumes what’s on offer.
As former Victoria police senior sergeant Greg Denham told Sydney Criminal Lawyers following the unveiling of Operation Ironside, while the investigation was significant for its cross border cooperation “the international illicit drug trade will continue to expand and adapt”.
“It takes tremendous courage to admit that the war on drugs has failed,” said the ex-police officer, who now works in drug law reform. “Unless new approaches are adopted the situation will get progressively worse.”