National Amphetamine-Type Stimulant Strategy Background Paper: Monograph Series No. 69
6.3 Precursor regulation
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National initiatives
The nature of the synthetic illicit drug trade is such that law enforcement and policing strategies are becoming increasingly focused on precursor substances and equipment; not just the end products of the drugs themselves. In many countries, this has taken the form of increasingly strict precursor regulations including:- Criminalising the supply of precursor chemicals for the use of ATS production;
- Limiting the amount of licit drugs allowed to be purchased in pharmacies and over-thecounter;
- Restricting the international and intra-national movement of large quantities of precursor chemicals; and
- Attempting to monitor the movement and supply of drugs that can be utilised in the production of ATS (Cherney et al., 2006).
Key projects include:
- The rescheduling of pseudoephedrine;
- National Clandestine Laboratory Database;
- Community pharmacy sector awareness raising about ‘pseudo-running’:
- The national roll-out of Project STOP;
- National framework for the control of precursor chemicals;
- National framework for the remediation of clandestine laboratory sites; and
- Training for Customs officers and forensic specialists.
Many of the consultations made reference to the importance of precursor control and the various strategies required. For example, it was stated that intelligence was improved by more dedicated forensic analysis of drugs and a wider application of the Drug Use Monitoring in Australia (DUMA) program. Further, the National Clandestine Laboratory Database was viewed as a good first step, provided the information obtained was timely and useful. The written submission from NDARC noted that:
- Concurrent sustained efforts to control domestic diversion of precursor chemicals and manufacture is also needed, because of the high levels of domestic production that occur within Australia.
Legislative responses
Typically, the chemicals sought after to produce ATS are pseudoephedrine and ephedrine (Schloenhardt, 2007), which have a number of legitimate uses, and are commonly available from pharmacies and supermarkets. In Australia, such precursor chemicals are regulated by drug laws in both state and federal jurisdictions (Schloenhardt, 2007). The submission from NDARC commented that:- Improved capacity to regulate precursor chemicals and control ATS supply in the Asia Pacific region is needed to reduce the supply of high purity methamphetamine in Australia.
- there is a persuasive case for uniformity in the definition of serious offences such as drug trafficking (p.ii).
Formal arrangements
National network of Chemical Diversion Desks, working in close partnership with industry
A chemical industry Code of Practice for Supply Diversion into Illicit Drug Manufacture
The use of ACC coercive powers to gather information on trends and threats
Workforce development
Training of specialist investigators to enable effective responses to suspicious precursor chemical-related activity and clandestine laboratories
Awareness raising for pharmacies about diversion methods and preventative measures
Awareness raising for prosecutors and judiciary on the serious nature of precursor diversion and ATS production
Enhanced forensic capabilities and training
Development of a national remediation framework for clandestine laboratories
Intelligence sharing and targeted interventions
The continuation and cultivation of local and national partnerships in joint police operations, including sharing intelligence and resources
Project STOP
Enhanced intelligence collections through the ACC National Clandestine Laboratory Database
Enhancements in the collection and dissemination of information on industrial chemical importation and usage
Analysis of industry controls for chemicals and equipment to respond to the increased risk of thefts and fraud
Legislative responses
The development of model legislation as a step towards national consistency for drug types and amounts
Rescheduling of pseudoephedrine based cold and flu medications to restrict availability to ‘pseudo runners’
Strengthening of State and Territory laws surrounding precursor chemicals and equipment
The introduction of laws in some jurisdictions prohibiting the possession of a tablet press without lawful excuse
Community activity
Awareness raising within the community of the signs of clandestine laboratory activities
Source: Ministerial Council on Drug Strategy Joint Communiqué 16th May 2007 NATIONAL LEADERSHIP FORUM ON ICE – COMPENDIUM OF JURISDICTIONAL ACHIEVEMENTS’ http://www.nationaldrugstrategy.gov.au/internet/drugstrategy/ publishing.nsf/Content/mcds-16may07-communique
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Several jurisdictions have since enacted legislation to implement the model offences: Tasmania (2001), Victoria (2001), ACT (2004), South Australia (2005), and the Commonwealth (2005) (see Table 6.3 for examples). There are differences between jurisdictions in implementing legislation. NSW made some legislative changes based on the model laws, but has not fully enacted the model offences. In Queensland, unlike some other states, law enforcement personnel are unable to carry out telephone intercepts and other forms of detection due to the legislative inadequacy for precursor chemicals under the Drug Misuse Act 1986 (Crime and Misconduct Commission, 2006). Similarly, offences such as the intention to manufacture amphetamine have been enacted in Queensland, NSW and Victoria, and are yet to be introduced in other states.
Although the content of the legislation differs in each jurisdiction, the central themes are the same. Penalties are higher for those found to be dealing in drugs than those possessing them for their own use, and people convicted of trafficking large amounts of drugs are liable for a greater penalty than lower level dealers. Drug trafficking is a serious offence and conviction may result in life imprisonment. Most jurisdictions have enacted legislation allowing the seizure and forfeiture of assets derived from drug dealing.]
Table 6.3: Examples of legislative changes in different jurisdictions
NSW
In 2006, enacted a number of amendments to drug misuse and trafficking laws including listing chemicals that are precursors to the drug GHB as prohibited drugs and creating a number of new offences including:
- sale, commercial supply or display of crystal methamphetamine pipes in a shop for a commercial purpose;
- exposing a child to the manufacturing or production of a prohibited drug or to chemicals stored for that purpose; and.
- procuring a child to supply or take part in the supply of a prohibited drug.
QLD
In 2006, enacted laws to create a new offence of possession of prescribed substances or items for the production of a dangerous drug, which has a maximum penalty of 15 years imprisonment. This offence is aimed at “the developing market for persons who supply illicit methamphetamine manufacturers with chemicals and apparatus but who do not personally engage in the manufacture of the final dangerous drug. The laws also create a new offence of possessing a prescribed combination of items for the production of a dangerous drug, which has a maximum penalty of 25 years imprisonment.
This means that when a clan lab is located and the prescribed combination of items is identified, the remainder of items seized will not need to be forensically tested as the prosecution will not be seeking to prove that production has occurred. The laws also introduced evidentiary provisions to remove the requirement for forensic testing of sealed pharmaceuticals and alleged clan equipment unless challenged by the defence. Other laws enacted in 2006 allow police to enter pharmacies for the purpose of monitoring excessive sales of chemicals that are used to make amphetamines such as base.
WA
In 2003, introduced laws that place controls on suppliers of chemicals and apparatus that can be used in the manufacture of illicit drugs.137
In 2003, also enacted laws to allow police to issue an infringement notice to a person who is reasonably believed to be cultivating, possessing or using cannabis within the specified limits. Outside these limits, offenders are subject to criminal prosecution. Persons issued with an infringement notice have the option of paying the penalty, attending a cannabis education session or having the matter heard in court. This reform in Western Australia was advocated by the Community Drug Summit held in August 2001. South Australia introduced a similar scheme in 1986. NSW does not have an infringement notice scheme but in 2000 it introduced the Cannabis Cautioning Scheme to allow police to issue cautions in relation to minor cannabis offences.139
In 2004, enacted laws to make it an offence for a declared drug trafficker to consort with another person whom the police have warned them is also a declared drug trafficker. The maximum penalty is 2 years imprisonment. In 2005, laws were amended to prohibit the diversion of precursor chemicals and equipment for use in the illegal manufacture of methamphetamine. The use, sale and supply of drug use paraphernalia such as ‘ice pipes’ were banned.
Tasmania
In 2004, strengthened the presumption that possession of a trafficable quantity of a controlled substance is evidence of an intention to sell or traffic the substance. Under the new laws, the presumption of an intent to sell or traffic can only be displaced if the accused proves that he or she had no intention to sell or traffic. The Model Criminal Code Officer Committee had recommended the model serious drug offence provisions be changed in this way and the Standing Committee of Attorneys-General adopted this proposal. In 2005, enacted further reforms including allowing a trafficable quantity of drugs to be made up of a combination of different types of drugs.143
Source: Ministerial Council on Drug Strategy Joint Communiqué 16th May 2007 ‘NATIONAL LEADERSHIP FORUM ON
ICE – COMPENDIUM OF JURISDICTIONAL ACHIEVEMENTS’ http://www.nationaldrugstrategy.gov.au/internet/drugstrategy/publishing.nsf/Content/mcds-16may07-communique
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A number of consultations highlighted the need for continued legislative reform. Comments included:
- Ensuring national legislation is implemented in respect to remediation of clandestine drug laboratory sites;
- Ensuring offence and penalty provisions remain appropriate in light of emerging ATS trends and threats, including appropriate coverage of possession and use of precursor chemicals and equipment for the purpose of manufacturing ATS; exposure of children to clandestine laboratories; use of children for trafficking ATS; and sale of ATS to children;
- Reviewing the regulations surrounding the sale of devices used for ATS consumption;
- Supporting the work of the National Scheduling Committee; and
- Ensuring law enforcement has appropriate powers to respond to the ongoing and evolving ATS threat.
Many of the consultations highlighted the unintended consequences of legislation. For example, it was suggested that the banning of ‘ice’ pipes may have the effect of diverting users to injecting as the route of administration. This has significant ramification for health outcomes given the prevalence of smoking and the potential number who may divert to injecting.
In addition, recommendations from the consultations suggested a need to recognise that creating an enabling environment can be confounded by the law. For example, in the case of injecting users, the application of the law in different jurisdictions is mirrored in the behaviour of police in dealing with drug users and dealers. In some jurisdictions police might not actively pursue users whose behaviour was under control. In other jurisdictions these people could expect to be pursued. Similarly, experience with the criminal justice system can mean loss of employment and other self defining elements in people’s lives, which are critical to rehabilitation and non-offending. One submission noted that:
- Law enforcement agencies need to work closely with harm reduction agencies and service providers to ensure that law enforcement practices do not have unintended, harmful effects.
