By Paul Gregoire and Ugur Nedim
Eight out of nine Australian jurisdictions have deemed supply laws, which provide that an individual found in possession of more a certain quantity of a prohibited drug can be charged with supply, even if there’s no evidence of actual or even intended supply.
These laws were adopted throughout Australia in the early 1970s in response to the recommendations of a national inquiry. But the legitimacy of the laws has been questioned since that time, and Queensland later became the only jurisdiction to revoke the provisions.
In most Australian jurisdictions, there are currently at least four ways an individual can be charged with drug supply. Firstly, a person may be caught selling or distributing an illicit substance. Secondly, police may gather circumstantial evidence – such as communications and/or paraphernalia – which is suggestive of supply.
A third way is to have a quantity of drugs sufficient to support a charge of deemed supply. It’s this third avenue that has long been criticised as unjustified, and as undermining the rule of law.
Deemed supply in operation
Section 29 of the Drug Misuse and Trafficking Act 1985 (the DMT Act) stipulates that an individual found in possession of more than a traffickable amount of a prohibited drug in NSW can be deemed to have that substance in their possession for the purpose of supply.
If a charge of deemed supply is brought, it is for the defendant to prove on the balance of probabilities that the substance is in their possession for something other than supply – most commonly for personal possession, or less commonly that they are momentarily holding the drugs for someone else (nown as the Carey defence).
Schedule 1 of the DMT Act contains a list of around 200 outlawed drugs, prohibited plants, illicit drug precursors and reagents. It also outlines the traffickable, indictable, commercial, and large commercial quantities of each substance.
As the amount of any given prohibited substance increases, so do the penalties that apply – up to a maximum of life imprisonment and/or a $550,000 fine.
When personal use becomes supply
A traffickable quantity of MDMA (or ecstacy) is only 0.75 grams, which can be as little as three pills.
An individual could plausibly be found in possession of three pills for personal use, whether at home, at a music festival or anywhere else. But the law allows that instead of possession, they can be charged with drug supply.
The maximum prison time for MDMA possession is 2 years behind bars and/or a fine of $2,200. However, the maximum penalty for supplying between 0.75 grams and 5 grams of MDMA is 15 years in prison and/or a fine of $220,000 where the case is dealt with by the District Court.
Supply treated more seriously than possession
Most drug possession offenders are diverted away from the strict application of the criminal justice system, whereas if an individual is charged with drug supply, they’re more likely to be subjected to the full force of the long arm of the law.
And this situation could become a lot more drastic for people who use party drugs, as NSW premier Gladys Berejiklian has suggested that the expert panel she’s tasked with reviewing how to improve safety at music festivals consider tougher drug supply penalties.
The adoption of unjust laws
The 2015 article Deemed Supply in Australian Drug Trafficking Laws: a Justifiable Legal Provision? examines the rationale behind the adoption of deemed supply laws in this country, and outlines why they should be done away with.
Former NSW Director of Public Prosecutions Nicholas Cowdery, National Drug and Alcohol Research senior research fellow Dr Caitlin Elizabeth Hughes and UNSW Professor Alison Ritter authored the paper.
They explain that the reasoning behind the enactment of deemed supply laws were perceived difficulties in prosecuting and sanctioning drug traffickers, as well as the need for “desperate measures” to deal with the threat drug trafficking posed to the Australian public.
All jurisdictions adopted the laws. However, an overhaul of Queensland drug legislation in the mid-1980s saw deemed supply provisions dropped due to an outcry from legal and civil liberties groups, stressing that the laws were unnecessary, unjust, and impinged on the rights of the accused.
Inconsistency with criminal law
The authors point out that deemed supply laws are inconsistent with the three core principles of Australian criminal law: that there must a crime and an intent to commit it, a person is innocent until proven otherwise and the burden of proving the accused’s guilt is on the prosecution.
However, as the paper makes clear deemed supply laws completely undermine these criminal law foundations. An individual can be arrested, prosecuted and punished for drug trafficking without any actual proof of the supply or the intent to supply.
The accused from the outset is presumed to be guilty, rather than innocent. And the burden of proof is upon the accused to show that they were in the possession of the illicit substance for another purpose other than supply.
Inconsistent with international laws
The article goes on to explain that Australian deemed supply laws are out of step with drug laws in most other nations. In other jurisdictions around the world the mere quantity of an illicit drug is not enough to prove supply, and a number of other incriminating factors need to be taken into account.
The United Kingdom considered introducing deemed supply provisions in 2005. However, the proposal was thrown out as the approach was seen as “unjust, impractical, perverse and arbitrary”. One major criticism was the random setting of amounts to distinguish personal use and supply.
The harms caused to people who use drugs
Since 1985, the goal of Australia’s National Drug Strategy has been harm minimisation: reducing the harms associated with drug use. And with this it follows that drug traffickers should receive the most severe criminal punishments, and not people who use drugs.
However, as the paper explains, deemed supply provisions blur the line between drug suppliers and people who use the substances. There are documented cases where individuals found with drugs in their possession for personal use have been convicted of supply and sent to prison.
Indeed, deemed supply laws seem to be set up to penalise people for personal drug possession and small time dealers, as in cases where major crime figures are found in possession of large quantities of drugs, the reversal of the burden of proof is hardly necessary for the prosecution’s case.
Time to revoke the laws
“We recommend that deemed supply provisions be subject to legislative review or preferably abolition from Australian drug trafficking law in favour of a system where charges for supply are based on proof of actual trafficking or preparation for trafficking,” the report authors state.
They go onto explain that this would mean that a person in possession of only three MDMA pills would not automatically be presumed to have the intent to supply to others, unless there was something else that indicated they were, such as large amounts of money or a contact list.
This change to the laws “would be neither radical nor unfeasible”, according to the authors, but it would rather be “a progressive move towards proportional and justifiable drug trafficking laws”, which would rectify a poor policy decision that was make four decades ago.