Importation of Prohibited Substances Act 2012 - Report Example

Sta y Interpretation: Importation of Prohibited Substances Act al Affiliation: Introduction In this paper, two factual situations relating to importation of prohibited substances in Australia are evaluated on the basis of the Importation of Prohibited Substances Act (2012). Relevant statute and case laws have been incorporated to supplement the interpretation of the Act in light of the situations evaluated. Fact Situation One: The Commonwealth Chemicals Commission vs Sara and Julian Background to the Situation The plaintiff, the Commonwealth Chemicals Commission, has moved to prosecute Sara, a twenty year old lady in whose motel room the Commission’s officers found a can of the chemical “Sparxo” on 20th January 2014. Sparxo is a highly toxic substance used for industrial carpet cleaning. However, the chemical substance belongs to Sara’s 14 years old brother Julian, who was residing in the same room as Sara at the time of the incident. Julian confesses that he did not alert Sara of the presence of the chemical in the motel room, and that Sara was unaware of its presence before the realization by the authorities. Besides, Julian is a known juvenile offender. In my capacity as a legal professional, I have the following advice for members of the three parties involved. The Commonwealth Chemicals Commission As notified through your letter to my firm, the Commission intends to prosecute Sara under Section 6 of the Importation of Prohibited Substances Act (2012) for the offence of storing a banned chemical in her room of residence at the motel. The Commission is cognizant of the fact that Sara did not participate in purchasing, transporting, or storing the chemical in the last residence it was intercepted. Section 6 of the Act is clear that in order for an individual to be held liable, they must be of adult age. Clearly, Sara meets this requirement. However, it is not the case with Julian, which understandably forms the basis of your intention to pursue Sara and not her underage brother (Julian is indicated as being below 16 years of age). In order to charge Sara, we have to bear in mind her oblivion to the fact for which she is being prosecuted. Evidence indicates that she had no idea that the chemical was stored in her room. The basis on which the Commission can charge Sara must span outside the Importation of Prohibited Substances Act (2012). Based on this statute, the incriminating evidence against the individual is easily countered by the lack of knowledge of the incident. However, we are referring to a case that involves an adult and a minor travelling together. In this case, Julian was residing in a room rented by Sara. The latter is legally responsible for the safety, needs, actions, and character containment of the former. This is simply based on the moral obligation of travelling, keeping, residing with, or adopting a minor (Brown, McNamara & Treloar, 2011). Sara should have been vigilant enough to ensure that she was always aware of what Julian was up to. This is affirmed by the fact that Julian is known juvenile criminal, which calls for stricter attention on the part of the sister in handling him. Under the law of torts, Sara can be prosecuted under the law of vicarious liability. This law implies that, in situations where one person has authority over the other, such that the actions of the “lesser” are partly or fully verifiable by the “master”, the law shall deem that the latter was at a position to control the actions of the former; either by way of directing, reprimanding, cautioning, scrutinizing or by any other actions that indicate superiority when the parties are interacting (Brown, McNamara & Treloar, 2011). Sara is also liable in law (under the law of torts) for negligence. Negligence occurs when an individual abdicates their moral, ethical, or legal obligations. Again, this stems from the fact that Sara, though unintentionally, cohabited with her brother without duly scrutinizing his actions, and consequently placing people and property under dangers posed by substances banned under the Importation of Prohibited Substances Act (2012). On these two grounds, the Commission has adequate basis to prosecute the individual. While pursuing the above stated grounds, the Commission may also prosecute Sara on the basis of being in association with a person who poses a threat to the State. In The Minister for Immigration vs Haneef, the High Court, with reference to the Immigration Act declared that the defendant (Haneef) had been in association with elements considered to have a criminal background, providing an amendment to the Immigration Act (1958) to draw associations as a basis for making a ruling (French, 2009). Sara In this instance, you are a victim of circumstances – you did not participate in purchasing, transporting, or storing the “Sparxo” in your room at the motel. Your brother indicates that you were not aware of the presence of the chemical in your room. This is your strongest tool for defence. However, there is a provision in law that places you directly in charge of the actions of your brother Julian, especially when you two are in exclusive localities where none of your parents/ guardians are. The Commonwealth Chemicals Commission will certainly base their case against you upon the Importation of Prohibited Substances Act (2012). Section 6 of the Act indicates that an individual (other than a child) who stores any of the banned chemicals may be sentenced to two years imprisonment and/ or a fine of up to USD 500,000. To back up their argument on the Act, the Commission will also likely pull the principles of negligence and vicarious liability on you. The important bit is to able to ground your argument upon the statutory provision as contained in the Act: it has relatively less incriminating power, since you were unaware of all happenings concerning the prohibited chemical found in your motel room. You need to be able to prove that you did not have moral or legal liability over Julian, and that you were not negligent in handling him. These are the basis upon which you can substantively build and argue your case. So, despite the fact that the two principles under the law of torts distinctively appear to incriminate you, you still have a fighting chance, and even a chance of acquittal should you be able to handle everything within the statutory Act. Julian It is unfortunate that Sara has to bear the consequences of your self-confessed illegal acts. However, you have the chance to get her cleared, which may place you in an equally tricky position in law. The law that prosecutes the case des not recognize persons under the age of 16 years as being criminally liable in law for possessing or storing the kind of chemical found in your possession. However, it is automatic, since other legal provisions can be enjoined to prosecute you either. Being 14 years of age, you can be prosecuted without the court seeking to establish a less offending motive such as naughtiness (Commonwealth of Australia, 2011). However, there is also hope that your case will be determined based on the Importation of Prohibited Substances Act (2012), which protects persons in your age bracket. The Importation of Prohibited Substances Act (2012) is not clear about how minors below 16 years should be handled in law. Presented with the nature of the situation, it is fair to investigate the motive behind leaving such an “unspecified” statement in the Act. A purposive approach is needed to determine what this “seemingly silent” part could mean. In deed, it is worth noting that the Commonwealth must have been aware that individuals under 16 years can be prosecuted in law, but chose to silently exempt them from this law. Therefore, they are considered ineligible for prosecution under the Importation of Prohibited Substances Act (2012). Fact Situation Two: The Commonwealth Chemicals Commission vs Brigitta and Evo Pty Limited Background to the Situation In January 2014, officers from the Commonwealth Chemicals Commission discovered that Brigitta, an Australian national, had been storing large quantities of the chemical “Methalin”, classified as “prohibited” under the Importation of Prohibited Substances Act (2012). Brigitta is a Director at Evo Pty Ltd. The Commission’s officers established that Brigitta imports the chemicals to Evo’s warehouses. Based on the label on the containers of the chemical, they are supposedly imported from Bolivia. Furthermore, Brigitta owns a motor vehicle, and has USD 100000 in her bank account. The Commonwealth Chemicals Commission With regard to Brigitta, the Commission has opted not to take legal action against the “offender”. However, my analysis does not support the position taken by the Commission. The individual has been proven to import and store the chemical “Methalin”. Each of these acts constitutes an offence under the Importation of Prohibited Substances Act (2012). Firstly, importation of prohibited chemicals is governed by section 7 of the Importation of Prohibited Substances Act (2012), which criminalizes all actions pertaining to importation of substances in this category, and sets the legal penalties for offenders. Based on the provisions of Section 7, Brigitta is liable to life imprisonment or death, accompanied by the possibility of auctioning his property. Under Section 6 of the same Act, the law provides that such an offender as Brigitta be held accountable for storing such prohibited chemicals as “Methalin”. Under this section, the Act stipulates that Brigitta shall be fined an amount not exceeding USD 500,000, jailed for two years, or subjected both penalties. The offender is liable under both Sections 6 and 7 of the Importation of Prohibited Substances Act (2012). Clearly, the legal provision does not contain any ambiguities that may need any clarification. Therefore, in presenting your case, the Commission should be guided by the principle of “literal interpretation” of the statute. It will be taken to mean “the offender is liable to fine of up to USD 500,000 and a jail term of up to two years with the option of recovering part or all of the fine as the amount will be determined from her USD 100,000 saved in her bank account on the first count (storing the prohibited chemical), and life imprisonment or death for importing a banned chemical. If the Commission fails to pursue Brigitta, accountability and responsiveness will be irredeemably lost. The Commission must act on this case, and move to prosecute the offenders. Brigitta The Commission has not yet opened charges against you. However, you need to devise a tactical approach that will help you in case charges are pressed against you. Your case presents a complex situation under which you may face some of the stiffest penalties provided for under the Importation of Prohibited Substances Act (2012). The fact that prohibited chemicals were found in your possession and indications that the chemicals were imported presents extensive evidence that will be difficult to refute. Based on the evidence, obtaining exonerating evidence to refute the evidence gathered should concentrate on ascertaining that evidence indicating the chemicals were imported is annulled; and that the company that you direct was not involved in storing the banned chemical. Please pay greater attention to the first requirement, since the indication that the chemical was imported from Bolivia does not amount to the same. I find that easier to counter than the notion that the chemicals were found in your premises. Evo Pty Ltd The company is only enjoined in this case for storing the banned substance – “Methalin”. It is important that the company is able to provide satisfactory replies to why it stored the chemical, and circumstances under which the company did store the banned substance. The top management’s decision will directly affect the other case against Evo Pty Ltd’s director, Ms. Brigitt. Conclusion: Summing up the Two Situations The approaches provided by the Commonwealth Chemicals Commission on the two instances (Sara and Julian, and Brigitta and Evo Pty Ltd) do not present the commission as a neutral pursuer of offenders. The parties in both cases should be tried in accordance with the provisions of the Importation of Prohibited Substances Act (2012), and any other complementary legal provisions. Diverse statutory provisions should be applied to address the obvious gaps left in the Act. However, based on the provisions of the Act, Sara has a better chance of evading a sentence/ a tougher sentence than Brigitta. References Brown, C., McNamara, J. & Treloar, C. (2011). Good practice guide (Bachelor of Laws): Statutory interpretation. Surry Hills: The Australian Learning and Teaching Council. Commonwealth of Australia (2011). A Commonwealth statutory cause of action for serious invasion of privacy (Issues Paper). Canberra: Commonwealth of Australia. French, R. S. (2009). The common law and the protection of human rights. Sydney: Anglo Australian Lawyers Society. Read More