Opinion Number. 1625


regulation of narcotic drugs control by commonwealth of traffic in dangerous drugs: liability for statements in communications regarding alleged drug addicts: power to give effect to international conventions regarding dangerous drugs: extent of external affairs power

Key Legislation

International Opium Convention done at The Hague on 23 January 1912 [1920] ATS 20: INTERNATIONAL CONVENTION RELATING TO DANGEROUS DRUGS, AND PROTOCOL done at Geneva on 19 February 1925 [1928] ATS 5: CONVENTION FOR LIMITING THE MANUFACTURE AND REGULATING THE DISTRIBUTION OF NARCOTIC DRUGS, AND PROTOCOL OF SIGNATURE done at Geneva on 13 July 1931 [1934] ATS 9: Customs Act 1901 ss 52(g), 56: Customs (Prohibited Imports) Regulations 1934 Second Schedule item 7: CONSTITUTION s 51(xxix)

Comptroller-General, Department of Trade and Customs

The Comptroller-General, Department of Trade and Customs, has forwarded the following minute to me for advice:

  • The Commonwealth is a party to the International Drug Conventions of 1912, 1925 and 1931 which provide for the control generally of the import, export, manufacture, sale, distribution and use of specified narcotic drugs.
  1. This Department is the Commonwealth authority charged with the responsibility of ensuring that the provisions of the Conventions referred to are complied with insofar as the Commonwealth has power to act in the matter.
  2. As regards control of importation, section 52(g) of the Customs Act provides that all goods the importation of which may be prohibited by regulation are prohibited imports. Section 56 of the Act directs that the power of prohibiting importation shall authorise prohibition subject to any specified condition or restriction and goods imported contrary to any such condition or restriction shall be prohibited imports.
  3. The substances (with the exception of opium prepared for smoking) which are subject to control under the International Conventions referred to above are specified in Item 7 of the Second Schedule to the Customs (Prohibited Imports) Regulations. Importation of goods covered by such Schedule is subject to the consent of the Minister.
  4. The conditions (specified by Departmental instructions) under which the consent of the Minister is given to importation are as follows:
    1. the goods may be imported for medical or scientific purposes only;
    2. a separate authorisation must be obtained in respect of each importation of the goods;
    3. importations may be made only by persons licensed by the Customs authorities;
    4. before a licence is granted the applicant must–
      1. give security to the satisfaction of the Customs that–
        1. all importations made by him pursuant to the licence, or any removal thereof, will be disposed of for medical or scientific purposes only; and
        2. he will record in a book, kept by him for the purpose, particulars of how and to whom they have been disposed of, and will, on demand, at all reasonable times, produce the books so kept, and the balance of the importations on hand at the time when the book is produced.
      2. give an undertaking, in writing, that he will be responsible for the making of reasonable inquiries as to the purpose and destination of all goods entered under the licence and subsequently sold, with a view to assuring himself that such goods are intended for medical or scientific use only.
  5. It is recognised that the Department’s position as regards control over importers would probably be more satisfactory from a legal point of view if the conditions outlined above governing importation and disposal of the substance were set out in the regulations, instead of being dealt with by Departmental instructions. It is proposed to look into this aspect of the matter later.
  6. Whilst the Department can and does exercise strict control over the importation and wholesale distribution of drugs its position as regards the transactions of retail chemists, doctors, veterinary surgeons, hospitals, etc., is not a strong one. The control of such persons and their transactions is mainly in the hands of the State authorities. A certain measure of control is possible, however, by the Department because of the fact that such persons are dependent on licensed importers for their supplies and such supplies are subject to this Department’s approval.
  7. Instances have arisen from time to time in which the Department has made use of this power to obtain observance of its wishes in a particular direction. For example, cases of drug addiction are not infrequent, and although such matters more directly concern the State authorities it has always been the practice of the Department, in view of its position in connection with the International Conventions, to interest itself in such cases and to take all steps possible to effect an improvement in the position.
  8. Each case is dealt with in accordance with the particular circumstances present. Generally speaking, however, the Department takes steps in an endeavour to prevent the addict obtaining supplies from more than one source and in excess of the quantity recommended by the addict’s medical adviser. The addict may, however, approach other medical men and obtain authority to obtain additional supplies of drugs and the Department is then placed in an unsatisfactory position as it has not the authority to instruct doctors that drugs are not to be prescribed for a particular person. In many areas the only course open to it is to seek the co-operation of the medical profession in dealing with the case. The State authorities could, of course, be approached, but in certain States at least, e.g., Tasmania, it seems doubtful whether any effective action could be taken under the present State legislation in force.
  9. The papers attached relate to a case of drug addiction in Tasmania. The Department desires to take action to prevent the addict (Mr. R.) obtaining supplies from more than one source and in excess of the quantity approved by his medical adviser.
  10. The matter was brought to the notice of the Medical Council of Tasmania and it was suggested to the Board that the facts of the case might be brought confidentially to the notice of every medical practitioner in Tasmania with a request that prescriptions for narcotic drugs be not issued in favour of the addict concerned without prior consultation with his medical adviser.
  11. The Board has replied as follows:
  12. Your letter of the 3rd inst. was referred by my Council to their Legal Adviser with the result that he points out that our Board is not given statutory jurisdiction in regard to this matter, and that consequently our Council would not receive statutory protection in the event of some question being taken in regard to proceedings taken by them relating to a matter such as this.

    They therefore consider that the Customs Department in Hobart would be the proper body to bring confidentially to the notice of every Medical Practitioner in Tasmania the facts of the case including the request mentioned in your letter.

  13. A draft letter (Exhibit ‘A’) was prepared in this Office for despatch by the Collector, Tasmania, to medical practitioners in Tasmania. The question has been raised, however, as to whether the circulation of such a communication might not give Mr. R. grounds for action against the Department.
  14. The matter was discussed with Mr. Mills of the Crown Solicitor’s Office who expressed the view that having regard to the limited authority of this Department under existing legislation over the traffic in drugs within the Commonwealth, the terms of the proposed circular are distinctly libellous and that the matter should not be proceeded with unless the Department is prepared to contest any action which might be brought against it by Mr. R. He suggested, however, that with a view to the matter being more fully considered, advice on the subject be sought by official communication.
  15. In the particular case under notice it is not considered likely that any action against the Department would be initiated but other cases have been dealt with by the Department in which medical men in actual practice have been involved and action has been taken restricting their sources of supply and the quantities and kinds of drugs which they may obtain. In these cases there is always the likelihood of the Departmental action being challenged.
  16. It is suggested that advice be sought from the Crown Law authorities as to whether the Department is exceeding its authority in–
    1. communicating with doctors (as now proposed in R.’s case) with the object of restricting the supply of drugs to persons who the Department has reasonable grounds for believing, are addicted to the use of drugs.
    2. controlling the supply and source of supply of drugs in the case of medical men who are drug addicts.
    3. instructing chemists, over whom the Department has only an indirect control, to observe its wishes as regards the supply of drugs to the persons referred to in (a) and (b).
  17. In the event of the conclusion being reached that the Department’s position in the matter is weak, it might also be requested that the matter be looked into with a view to the Crown Law authorities suggesting steps which it would be possible for the Department to take to improve its position regarding the internal control of the traffic in dangerous drugs.

The questions for advice may be considered from two aspects, firstly, whether the Department is authorised to take the action contemplated in subparagraphs (a), (b) and (c) of paragraph 16 of the minute; and, secondly, whether the Department is liable for the consequences of any such action, as for instance, damages for libel in the event of libellous statements concerning individuals appearing in communications regarding the control of the supply of dangerous drugs.

Although not specifically referred to in the Order of the Governor-General, dated the 13th August, 1936, relating to matters dealt with by the respective Departments, it is understood that the Department of Trade and Customs deals with matters arising out of the performance of the Commonwealth’s obligations under the Conventions relating to dangerous drugs. These Conventions are the International Opium Convention (1912), the International Convention relating to Dangerous Drugs (1925), the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs (1931). I understand that the Commonwealth is not a party to the Convention for the suppression of the illicit traffic in dangerous drugs (1936), but that the question of becoming a party to this Convention is now under consideration.

In general, these Conventions require the Contracting Parties to take legislative action to control the drug traffic. The only Commonwealth legislation relates to the importation and the exportation of dangerous drugs and, in some of the States, other phases of the traffic are the subject of legislation. There is not, so far as I am aware, any legislation under which the Department is directly authorised to make the communications in question but, at the same time, there is no law which expressly prevents the Department from doing so if it considers that such communications should be made. It is another question, however, whether action could be taken against individuals who fail to comply with Departmental requests as to the disposal of drugs.

In the case of requests to chemists, for instance, to observe the wishes of the Department as to the supply of drugs to particular individuals, it does not appear that any of the conditions set out in paragraph 5 of the minute for advice authorise the Department to give instructions as to the supply of drugs to particular individuals by chemists, whether direct importers or not. In any event, it is very doubtful whether, under existing legislation, a condition could be imposed under which chemists could be required to comply with instructions of the Department as to the disposal of drugs which have passed out of the control of the Customs. In this connection, I would invite attention to Opinion No. 152 of 1934,(1) dated the 27th September, 1934 in which I advised that there is no authority in the Customs Act for placing upon persons who come into possession of goods in respect of which security has been given prior to their being entered for home consumption, responsibilities in respect of those goods.

In my opinion, therefore, the position generally is that the Department is not legally debarred from making requests as to the disposal of drugs, but it is precluded from relying upon the provisions of the Conventions as a defence to an action for the invasion of a private right (e.g. an action of libel) committed by it in endeavouring to give effect to those provisions in the absence of statutory authority for the invasion (cf. Walker v. Baird, 1892 A.C. 491).

Mention has been made of the possibility of the Department being involved in proceedings for libel arising out of communications to control the drug traffic. Thus in the case of the letter suggested in subparagraph (a) of paragraph 16 of the minute, the person referred to in the letter may consider that he has been libelled in that he is falsely described as being ‘addicted to the use of morphine for a number of years’. The law presumes that the words alleged by a plaintiff in an action of libel to be false are false, unless and until the defendant pleads and proves that they are true (cf. Halsbury, 2nd Edn., Vol XX, p. 386). The words in question, if falsely used with respect to an individual, would, I think, constitute a libel in that they impute vice to him, the vice being indulgence in the practice of using a habit-forming drug (cf. Odgers ‘Libel and Slander’, 6th Edn., p. 16).

It does not necessarily follow, however, that an individual would be successful in proceedings against the Department for libel. If the proceedings took the form of a civil action, the Department could rely on the truth of the libel in justification of its action in publishing the libel (cf. Odgers, p. 149).

In transmitting such letters, therefore, the Department would be confronted with the possibility of proceedings for libel although, in ordinary circumstances, it is unlikely that a verdict would be given against the Department, if the letters concerned known drug addicts. ‘Reasonable grounds for believing’ a person to be a drug addict would not, I think, be a sufficient plea in justification of a libel (Ib. p. 149). The Department should be satisfied of the facts of a particular case beyond all reasonable doubt before referring to them in a communication to a third party.

Thus far consideration has been given to the position of the Department in the absence of legislation. Paragraph 17 of the minute, however, raises the question as to whether the Department can be invested with adequate powers in regard to the internal control of the traffic in dangerous drugs.

In the absence of the Conventions, the power of the Commonwealth Parliament to pass legislation as to the internal control of drugs would, I think, be very limited. The Commonwealth has, however, certain obligations under the Conventions and it may be that Parliament would have power to pass legislation under section 51(xxix) (‘External Affairs’) of the Constitution to carry out these obligations.

In the case of the King v. Burgess: ex parte Henry, 55 C.L.R. 608, Latham, C.J., in discussing, at p. 640, the question whether the ‘external affairs’ power is limited to the matters which in se concern external relations and matters which may properly be the subject matter of international agreement, stated that:

It is very difficult to say that any matter is incapable of affecting international relations so as properly to become the subject matter of an international agreement. It appears to me that no absolute rule can be laid down upon this subject. No one would to-day be inclined to deny that the production and sale of recently invented narcotic drugs is a matter of international interest and concern. Fifty years ago it is unlikely that many persons would have thought that such subjects would be dealt with by international treaties.

In the same case, at p. 696, Evatt and McTiernan, J.J., in summing up their views as to the power of the Commonwealth Parliament to control civil aviation in the Commonwealth, state, inter alia, the following conclusions:

(2) The Commonwealth has power both to enter into international agreements and to pass legislation to secure the carrying out of such agreements according to their tenor even although the subject matter of the agreement is not otherwise within Commonwealth legislative jurisdiction.

(3) The subject matters of these agreements may properly include such matters as, e.g., suppression of traffic in drugs, control of armament, regulation of labour conditions and control of air navigation.

From these dicta, it would certainly appear that Parliament is authorised to make laws to give effect to the Conventions in relation to dangerous drugs. The extent to which these laws would operate internally is, of course, dependent on the terms of the respective Conventions. But, whilst these dicta would appear to support this view as to the power of Parliament, the Attorney-General has already pointed out to Cabinet in connection with the problem of the regulation of hours that the Privy Council would not, in his opinion, uphold that view in a final judgment.

Under these circumstances, the whole matter is in such doubt that I can go no further than to say that there is a distinct possibility of the validity of such a law being upheld by the High Court.

[Vol. 31, p. 182]

(1) Opinion [Vol. 27, p. 531] not published.