Criminal Offences Relating to Drug Precursors

Most people are familiar with the various criminal laws applying to the possession, importation and supply of illicit drugs, however less known is that laws also apply to drug ‘precursors’ or chemicals that can be used to manufacture illicit drugs.

The following defines what counts as a ‘drug precursor’ and outlines the relevant NSW and Federal offences relating to the importation, sale and possession of these chemicals.

What Is A Drug Precursor?

The local manufacture of illicit drugs such as heroin, cocaine and methamphetamine requires the use of  key chemicals.

These chemicals are known as ‘drug precursors’.

Criminal laws in Australia target drug precursors in order to stop the local production of drugs. Targeting drug precursors however can be difficult as many precursor chemicals for illicit drugs are also used for other ‘legitimate’ purposes including in the production of pharmaceuticals, plastics, cosmetics, fertilisers and perfumes.

Where a certain drug precursor has a legitimate purposes, the relevant offence will usually require that the precursor is possessed for an unlawful purpose.

The kinds of precursor chemicals that illicit drug manufacturers use is continuously evolving, as such lists of precursor chemicals are commonly maintaining in schedules within regulations so that they can be updated by Federal and State law enforcement as required.

NSW Offences Against Drug Precursors

The are two main precursor offences under the Drug Misuse and Trafficking Act 1985 (NSW.

Section 24A of the Act outlines an offence of possession of precursors and drug manufacture apparatuses. This offence requires that a person:

• Possess a precursor or drug manufacture apparatus; and
• Intends to use the precursor or drug manufacture apparatus in the manufacture or production, by that person or another person, of a prohibited drug.

Lists of what constitutes a  ‘precursor’ or a ‘drug manufacture apparatus’  for this offence are  provided in the Drug Misuse and Trafficking Regulation. Schedules 1 and 2 of the Regulation provides a complete list of precursor chemicals and Schedule 3 outlines various drug manufacture apparatuses. 

This offence carries a maximum penalty of 10 years imprisonment or a fine of $220,000 or both.

Section 24B of the Act outlines an offence of possession of prohibited drug precursors. This offence requires a person to:

• Possess a prohibited drug precursor; and
• The precursor to be of  a quantity at or above that prescribed by the regulations.

Schedule 4 of the Regulations provides a list of prohibited drug precursors and the minimum quantity required for this offence to be enacted.

This offence carries a maximum penalty of 5 years imprisonment or a fine of $110,000 or both.

A defence exists for this offence if:

• The defendant is in possession of the precursor for the purposes of an activity that is not unlawful, or
• The defendant otherwise has a reasonable excuse for possessing the precursor.

Federal Offences Against Drug Precursors

A number of serious Federal offences are listed under the Criminal Code Act 1995 (Cth) related to the dealing, importation and exportation of “border controlled precursors”.

A “border controlled precursor ” is defined under section 301.6 of the Code as including a substance (including a growing plant) that is:

• Listed by a regulation as a border controlled precursor; or
• A salt or ester of a precursor that is so listed; or
• An immediate precursor of a precursor that is so listed; or
• Determined by the AFP Minister as a border controlled precursor.

Regulation 16 of the Criminal Code Regulations 2019 (Cth) lists a number of chemicals as amounting to a border controlled precursor, as well as weights in which each precursor can be deemed a ‘marketable quantity’ and a ‘commercial quantity’.

Under the Code, the selling, manufacturing, or possessing a precursor is referred to as ‘pre-trafficking’. Relevant offences include:

• Pre-trafficking commercial quantities of controlled precursors under section 306.2 of the Code, which carries a maximum penalty of 28 years imprisonment or a fine of $1.5 million or both if an aggravated offence, and 25 years imprisonment or a fine of $1.3 million or both in any other case.
• Pre-trafficking marketable quantities of controlled precursors under section 306.3 of the Code, which carries a maximum penalty of 17 years imprisonment or a fine of $935,000 or both if an aggravated offence, and 15 years imprisonment or a fine of $825,000 or both in any other case.
• Pre-trafficking marketable quantities of controlled precursors under section 306.4 of the Code, which carries a maximum penalty of 9 years imprisonment or a fine of $495,000 or both if an aggravated offence, and 7 years imprisonment or a fine of $385,000 or both in any other case.

A pre-trafficking offence will be an ‘aggravated offence’ if the commission of the offence exposes an individual under the age of 14 years old to:

• A controlled precursor intended to be used for the manufacture of a controlled drug; or
•  The manufacture of a controlled precursor.

Further offences apply to the importation or exportation of border controlled precursors. Relevant offences include:

• Importing and exporting commercial quantities of border controlled precursors under section 307.11 of the Code, which carries a maximum penalty of 25 years imprisonment or a fine of $1.3 million or both.
• Importing and exporting marketable quantities of border controlled precursors under section 307.12 of the Code, which carries a maximum penalty of 15 years imprisonment or a fine of $825,000 or both.
• Importing and exporting border controlled precursors under section 307.13 of the Code, which carries a maximum penalty of 7 years imprisonment or a fine of $385,000 or both.

Absolute liability applies to the quality and quantity of a border controlled precursors imported or exported. This means a person cannot claim that they intended to import or export a different quantity of a border controlled precursor or a different kind of border controlled precursor.

Charged with an offence relating to a drug precursor?

If you have been accused of an offence relating to a drug precursor, contact Sydney Criminal Lawyers anytime on (02) 9261 8881 for expert advice and formidable representation, to ensure you have the highest likelihood of a successful outcome.