The Offence of Importing a Border Controlled Drug

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By Paul Gregoire and Ugur Nedim

On 7 February this year, Australian federal police (AFP) and Victoria police executed search warrants in NSW and Victoria that led to the arrest of two US nationals and two Australians in and around Melbourne, while two men were arrested in their south-western Sydney homes.

The drug raids related to the largest ever haul of illicit substances in both the US and Australia. And local authorities claim the busts revealed the links between Australian bikie gangs and sophisticated Mexican drug cartels.

An investigation following a small amount of drugs being found on a driver in regional Victoria early last year, led to the US Homeland Security Department seizing $1.3 billion worth of drugs in California on 9 January. This included 1.7 tonnes of methamphetamine bound for Australia.

The NSW Hinchinbrook house of 31-year-old Le Dung Vu was raided, along with the Bonnyrigg Heights home of 25-year-old Cui Chong Vu. Both men were arrested in relation to the drug ice and extradited to Victoria. The pair appeared in Melbourne Magistrates Court on 11 February.

Federal drug smuggling offences

Mr Le and Mr Cui were both charged with attempting to import a commercial quantity of a border controlled drug, contrary to sections 11.1 and 307.1(1) of the Criminal Code Act 1995 (Cth). This offence carries a maximum penalty of life imprisonment and/or a fine of $1,575,000.

When authorities detect border controlled drugs, they often substitute the find for an inert substance. And in cases where offenders receive deliveries that no longer include illegal drugs, they’re charged with attempting importation. And that’s what happened to these men.

Section 11.1 of the Criminal Code outlines that “a person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed”. Therefore, the men still face life imprisonment regardless.

Under Commonwealth law, imported border controlled drugs are broken up into three amounts: commercial, marketable, and less than marketable. And the penalties pertaining to each offence get tougher as the amounts grow larger.

The quantities that related to border controlled substances are set out in schedule 2 of the Criminal Code Regulations 2019. In regard to methamphetamine, a commercial quantity is 750 grams or more, whereas a marketable quantity is at least 2 grams.

Section 307.2(1) of the Code states that importing a marketable quantity of a border controlled drug carries up to 25 years prison and/or a fine of $1,050,000. Section 307.3(1) stipulates that importing less than a marketable amount of a drug carries a 10 year prison sentence and/or a fine of $420,000.

The failing war on drugs

Local authorities said the huge Californian methamphetamine haul that was bound for Australia would have amounted to 17 million drug deals. AFP organised crime assistant commissioner Bruce Hill said at the time that police had “averted a tsunami of ice coming into Australia”.

However, Australian police forces have admitted time and again that it doesn’t matter how many border controlled drug hauls are made, as there are dozens more that go undetected, and the busts don’t really make a dent in the overall amount of imported drugs.

The NSW Crime Commission Annual Report 2015-16 outlined that the illicit drug trade continued to be the main income for organised crime. And with imported substances like as ice drawing such high prices in this country, it was likely imports had been stepped up over the previous year.

The report makes clear that offshore interests decide on the volumes of drugs being imported into Australia. And locals consume whatever supply is on offer. And over the previous 12 months, no offshore principals had been prosecuted for drug smuggling into this country.

The commission further explained that when there’s an oversupply of imported drugs locally, then the price on the street drops. And at the time the report was released, that’s exactly what was going on.

“Commendable law enforcement efforts around the country have resulted in larger seizures and more arrests, but they have had little, if any, effect on the quantities of prohibited drugs available for consumption in Australia,” the report authors conceded.

The opposite effect

“Drug law enforcement acts as a multiplier for the drug market. Every dollar you spend on drug law enforcement always works out to ten dollars for the drug supplier,” explained Australian historian Dr John Jiggens. “And the way that works is all you do is force up the price of drugs.”

The doctor refers to the “great Australian methamphetamine flood” that the country is currently under the grips of. He asserts that ever since Australian authorities launched “the war on meth”, the imported supply of the drug has skyrocketed.

“The reason for that,” Dr Jiggens told Sydney Criminal Lawyers, “is they’ve forced the price of meth up in Australia, so it’s the highest in the world. Consequently, all the criminal gangs throughout the world who produce meth want to get it sent here because you get the best price.”

According to the doctor, over the eight years that local authorities have focused on meth, the seizures have risen from amounts like 200 kilograms to January’s 1.7 tonne haul. And record seizures followed by record seizures are merely escalating the price of the drug.

“It really shows how counterproductive the whole war on drugs is,” Jiggens added, “they just stimulate the market.”

Ending prohibition

Along with increasing the availability and consumption of illicit substances, the Global Commission on Drug Policy reported in June 2011 that the then forty years of the war on drugs had fostered the creation of huge criminal networks and contributed to mass incarceration.

The panel of former world leaders and leading intellectuals recommended that governments experiment with “models of legal regulation of drugs”. And since that time, there’s been a growing global awareness that an end to prohibition is the only way to halt the huge harms it has caused.

Australian Drug Law Reform Foundation president Dr Alex Wodak explained last October that “political conservatives were so prominent in early support for drug law reform”, because they were aware that tough enforcement leads to higher prices and a more lucrative market.

However, in NSW, premier Gladys Berejiklian has shown herself to be anything but a switched-on conservative with an awareness of the price society is paying for prohibition, while at the federal level, Scott Morrison is still living in the 1950s prior to Nixon even having launched the drug war.

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