The presumption of innocence is a fundamental principle of Australia’s legal system. This means it’s up to the prosecutor to prove that the accused is guilty. When it comes to drug offences, principles are put aside.

In most Australian jurisdictions, we’ve got ‘deemed supply’ laws. That means you can be charged with a drug supply offence based solely on the amount of drugs found in your possession. If you want to challenge the charge, you have to prove you weren’t going to supply the drugs to someone else.

It’s an approach that should be abolished, according to a recent paper published in the journal Current Issues in Criminal Justice. So far, the only state to take this step is Queensland, which abolished deemed supply in 1986.

This call to abolish deemed supply laws is a solid blow the respectability of drug detection dogs operations. These are allegedly targeted at detecting supply offences. They have never been good at doing that, and now it’s also clear that the deemed supply charges that they rely on are unjust.

The authors make four main arguments for the abolition of deemed supply laws:

Deemed supply laws are inconsistent with Australian criminal law

Deemed supply provisions conflict with core principles of Australian criminal law. In particular, they conflict with the presumption of innocence: that an offender should be presumed to be innocent rather than, in this case, presumed to be guilty. They also conflict with the burden of proof: that prosecutors are required to prove guilt, not accused persons prove their innocence. Such features make deemed supply provisions an aberration in the Australian criminal justice system.

Deemed supply laws are inconsistent with international drug trafficking laws

Australia remains exceptional for both the adoption and continued use of deemed supply laws. Mostnations have explicitly avoided deemed supply provisions. For example in 2005 such laws were proposed in the UK but abandoned as being unjust, impractical, perverse, arbitrary and unnecessary.

Deemed supply laws conflict with the goals of Australia’s National Drug Strategy

Deemed supply provisions conflict with Australia’s National Drug Strategy commitment to ensuring it is drug traffickers, not people who use drugs, who get the most severe criminal sanctions. We found two clear miscarriages of justice where drug users were erroneously imprisoned as drug traffickers by virtue of the laws. More problematically an evaluation of the current drug trafficking thresholds in six Australian states4 found that people who use drugs often consume or purchase (for their personal use alone) a quantity that amounts to an automatic charge of ‘deemed supply’.

Deemed supply laws threaten confidence in the Australian judicial system

Deemed supply laws have come under increased scrutiny by Australian courts. There are concerns that such laws may be ruled invalid or adversely affect public confidence in the justice system.

The paper was written by Dr Caitlin Hughes, Nicholas Cowdery (AM, QC) and Professor Alison Ritter. (It’s also summarised here and the full version is accessible here).

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