Deemed supply in Australian drug trafficking laws: A justifiable legal provision

In Australia, eight of the nine legal jurisdictions have enacted ‘deemed supply’ provisions for illicit drug trafficking offences that presume ‘intent to supply’ based on the quantity of a drug an alleged offender is found with and attach criminal liability for the offence of supply. Such laws have been enacted for more than 35 years. In this article we critically examine: the rationale for the widespread adoption of Australian deemed supply laws; and the justifiability and necessity of such laws in current legal practice. A legal and historical analysis was undertaken. Data were sourced from legislation, Parliamentary records (Hansard), case law, published research on international drug law, research on drug user behaviour and our own experience in the prosecution of drug offenders. Analysis shows that Australian deemed supply laws were introduced to overcome perceived difficulties in the prosecution and sanction of drug traffickers. Yet such laws conflict with the dominant international practice that sanctions trafficking without the use of deemed supply provisions. They contribute towards harms to users and miscarriages of justice and increase pressure to use police and prosecutorial discretion in ways that may ultimately adversely affect community confidence in the administration of the criminal law. We conclude that the laws should be subject to legislative review and/or, preferably, abolition from Australian drug trafficking law