Australian drug trafficking laws: guilty until proven innocent?

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Author: Dr Caitlin Hughes, Nicholas Cowdery AM, QC and Professor Alison Ritter

Resource Type: DPMP Bulletins, Working papers/discussion papers

Dealing and trafficking in illegal drugs (like heroin, methamphetamine, cocaine, ecstasy and cannabis) are serious criminal offences. A number of laws are employed for sanctioning alleged drug traffickers in Australia, but most jurisdictions also have laws to sanction solely on the weight of the drug found. The weight of the drugs determines whether the person is charged with a use/possess offence (diversion into treatment, fine, bond) or a supply offence (up to 21-25 years or life imprisonment, depending on the jurisdiction). This type of law, which has existed since the 1970s in eight of nine Australian jurisdictions1 is called “deemed supply”. The person is deemed to have supplied the drugs based only on weight.2 No other evidence is required. Moreover, if the accused wishes to dispute the supply charge, the onus is placed on the accused to prove the quantity possessed was not for the purposes of supply.

Our legal and historical analysis of these Australian “deemed supply” laws has shown that the laws are unjust, unnecessary and inconsistent with standard legal principles.

Our research can be found in: Hughes, C.E., Cowdery, N. & Ritter, A. (2015). Deemed supply in Australian drug trafficking laws: A justifiable legal provision? Current Issues in Criminal Justice, 27(1), 1-20. http://search.informit.com.au/documentSummary;dn=366887334489689;res=IELHSS.

We found that:

  1. Deemed supply laws are inconsistent with Australian criminal law
  2. Deemed supply laws are inconsistent with international drug trafficking laws
  3. Deemed supply laws conflict with the goals of Australia’s National Drug Strategy
  4. Deemed supply laws threaten confidence in the Australian judicial system