Drug Misuse and Trafficking Act 1985 (NSW)

Drug Misuse and Trafficking Act 1985 No 226 An Act to prohibit the manufacture, supply, possession and use of certain drugs, and for related purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Drug Misuse and Trafficking Act 1985. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette, being a day that is not earlier than the day appointed and notified under section 2 (2) of the Search Warrants Act 1985. 3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— analyst means any of the following— (a) a person employed by the Government of New South Wales as an analyst for the purposes of this Act (including a person employed as an analyst in the NSW Health Service), (b) a person who is an analyst within the meaning of the Poisons and Therapeutic Goods Act 1966, (c) a person who is, or belongs to a class, prescribed by the regulations for the purposes of this definition. cannabis leaf means any plant or part of a plant of the genus Cannabis by whatever name that plant or part may be called, and includes the achene and seed of any such plant, but does not include— (a) cannabis oil, (b) any fibre of any such plant or part from which the resin has been extracted, or (c) cannabis plant. cannabis oil means any liquid containing tetrahydrocannabinol. cannabis plant means any growing plant of the genus Cannabis. cannabis resin means the separated resin (whether crude or purified) obtained from cannabis leaf, but does not include cannabis oil. commercial quantity, in relation to a prohibited plant or a prohibited drug, means a number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 4 of Schedule 1. cultivate, in relation to a prohibited plant, includes— (a) sow or scatter the seed produced by the prohibited plant, and (b) plant, grow, tend, nurture or harvest the prohibited plant. cultivation by enhanced indoor means, in relation to a prohibited plant, means cultivation of the plant— (a) that occurs inside a building or structure, and (b) that involves any one or more of the following— (i) the nurture of the plant in nutrient-enriched water (with or without mechanical support), (ii) the application of an artificial source of light or heat, (iii) suspending the plant's roots and spraying them with nutrient solution. discrete dosage unit, in relation to a prohibited drug, means an amount of the prohibited drug, not greater than the amount, if any, specified opposite the prohibited drug in Column 6 of Schedule 1, which is prepared or apparently prepared for the purpose of being administered as a single dose. drug encapsulator means a device that is capable of being used to produce a prohibited drug in a capsule or similar form, and includes a unique part of any such device. heroin means diamorphine and includes the salts of diamorphine. indictable quantity, in relation to a prohibited plant or a prohibited drug, means the number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 3 of Schedule 1. low-THC hemp has the same meaning as in the Hemp Industry Act 2008. manufacture, in relation to a prohibited drug, includes the process of extracting or refining the prohibited drug. owner, in relation to any premises, includes the person entitled to receive the rent of the premises and the person to whom the rent of the premises is paid. Poisons List means the list proclaimed under section 8 of the Poisons and Therapeutic Goods Act 1966, being that list as in force for the time being. premises includes any structure, building, aircraft, vehicle, vessel or place (whether built upon or not), and any part of any such structure, building, aircraft, vehicle, vessel or place. prepared opium means any preparation of opium in a form capable of being used for the purpose of smoking, and includes dross and any other residues remaining after opium has been smoked. profession includes business, trade and industry. prohibited drug means any substance, other than a prohibited plant, specified in Schedule 1. prohibited plant means— (a) a cannabis plant cultivated by enhanced indoor means, or (a1) a cannabis plant cultivated by any other means, or (b) any growing plant of the genus Erythroxylon or of the species Papaver Somniferum, Papaver orientale or Papaver bracteatum, or (c) any growing plant of a description specified in an order in force under subsection (2), but does not include any growing plant, referred to in paragraph (a), (a1) or (b), of a description prescribed for the purposes of this definition. psychoactive substance—see section 36ZD. regulations means regulations made under this Act. Schedule 9 substance means a Schedule 9 substance within the meaning of the Poisons and Therapeutic Goods Act 1966. sell includes sell whether by wholesale or retail and barter and exchange, and also includes dealing in, agreeing to sell, or offering or exposing for sale, or keeping or having in possession for sale, or sending, forwarding, delivering or receiving for sale or on sale, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things. small quantity, in relation to a prohibited plant or a prohibited drug, means the number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 2 of Schedule 1. substance includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers. supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things. tablet press means a device that is capable of being used to produce a prohibited drug in a pill, tablet or other similar form, and includes a unique part of such a device. traffickable quantity, in relation to a prohibited plant or a prohibited drug, means the number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 1 of Schedule 1. veterinary practitioner has the same meaning as in the Veterinary Practice Act 2003. wholesale means supply for the purposes of resale. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of paragraph (c) of the definition of prohibited plant in subsection (1), the Minister may, by order published in the Gazette, declare any description of any plant that in the opinion of the Minister is capable of being used for the purpose of producing a prohibited drug to be a prohibited plant. (3) Notes included in this Act do not form part of this Act. 4 Admixtures In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug. 5 Meaning of "use" and "administer" In this Act, a reference to the use or administration of a prohibited drug includes a reference to the ingestion, injection and inhalation of a prohibited drug, the smoking of a prohibited drug, the inhalation of fumes caused by the heating or burning of a prohibited drug and any other means of introducing a prohibited drug into any part of the body of a person. 6 Meaning of "take part in" For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug or psychoactive substance if— (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply, (b) the person provides or arranges finance for any such step in that process, or (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates. 7 Deemed possession of prohibited drug etc For the purposes of this Act and the regulations, a prohibited drug, Schedule 9 substance (not being a prohibited drug) or prohibited plant in the order or disposition of a person, or that is in the order or disposition of the person jointly with another person by agreement between the persons, shall be deemed to be in the possession of the person. 8 Relationship with Poisons and Therapeutic Goods Act 1966 Nothing in this Act affects any provision made by or under the Poisons and Therapeutic Goods Act 1966 or renders unlawful anything done in accordance with any such provision. 8A Relationship with Hemp Industry Act 2008 (1) Nothing in this Act affects any provision of or made under the Hemp Industry Act 2008 or renders unlawful anything done in accordance with any such provision. (2) Without limiting the generality of subsection (1), nothing in this Act renders unlawful— (a) cultivating or supplying, or taking part in cultivating or supplying, low-THC hemp under the authority conferred by the Hemp Industry Act 2008, or (b) manufacturing or producing, or taking part in manufacturing or producing, low-THC hemp or anything containing low-THC hemp if that hemp was cultivated or supplied under the authority conferred by the Hemp Industry Act 2008 or under a corresponding authority, or (c) possessing low-THC hemp or anything containing low-THC hemp if that hemp was cultivated or supplied under the authority conferred by the Hemp Industry Act 2008 or under a corresponding authority. (3) In this section, corresponding authority has the same meaning as in the Hemp Industry Act 2008. 8B Relationship with Poppy Industry Act 2016 Nothing in this Act affects any provision of or made under the Poppy Industry Act 2016 or renders unlawful anything done in accordance with any such provision. Part 2 Offences Division 1 Summary offences 9 Summary prosecution An offence under this Division shall be prosecuted summarily before the Local Court. 10 Possession of prohibited drugs (1) A person who has a prohibited drug in his or her possession is guilty of an offence. (2) Nothing in this section renders unlawful the possession of a prohibited drug by— (a) a person licensed or authorised to have possession of the prohibited drug under the Poisons and Therapeutic Goods Act 1966, (a1) a person acting under a poppy licence under the Poppy Industry Act 2016, (b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the possession of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, (b1) a person acting in accordance with a direction given by the Commissioner of Police under section 39Q, (c) a person for or to whom the prohibited drug has been lawfully prescribed or supplied, or (d) a person who— (i) has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and (ii) has the prohibited drug in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply. 11 Possession of equipment for administration of prohibited drugs (1) A person who has in his or her possession any item of equipment for use in the administration of a prohibited drug is guilty of an offence. (1A) Subsection (1) does not apply to or in respect of a hypodermic syringe or a hypodermic needle. (1B) Subsection (1) does not apply to or in respect of a person prescribed by the regulations, or a person who is of a class of persons prescribed by the regulations, who has in his or her possession any item of equipment that is required to minimise health risks associated with the intravenous administration of a prohibited drug. (2) Nothing in this section renders unlawful the possession of an item of equipment by— (a) a medical practitioner, dentist, veterinary practitioner, pharmacist, registered nurse or registered midwife acting in the ordinary course of his or her profession, (b) a member of any other prescribed profession acting in the ordinary course of that profession, (c) a person licensed or authorised to have possession of the item of equipment under the Poisons and Therapeutic Goods Act 1966, (d) a person authorised to have possession of the item of equipment by the Secretary of the Department of Health, or (e) a person for use in the administration of a prohibited drug lawfully prescribed or supplied. 11A Sale, supply and display of waterpipes and ice pipes (1) In this section— ice pipe means— (a) a device capable of being used for the administration of a prohibited drug by means of the smoking or inhaling of the smoke or fumes resulting from the heating or burning of the drug in a crystal or powder form, or (b) a device that is apparently intended to be such a device but that is not capable of being so used because it needs an adjustment, modification or addition, and includes a device known as an ice pipe or a crack pipe, but does not include a device of a class or description prescribed by the regulations as not being an ice pipe for the purposes of this section. shop includes— (a) so much of a building or place as is used for the sale, or supply in the course of commercial transactions, of goods, and (b) a stall or other structure used for such sale or supply of goods at a market or elsewhere, but does not include anything prescribed by the regulations as not being a shop for the purposes of this section. waterpipe means— (a) a device capable of being used for the administration of a prohibited drug, by means of the drawing of smoke or fumes (resulting from the heating or burning of the drug) through water or another liquid, or (b) a device that is apparently intended to be such a device but that is not capable of being so used because it needs an adjustment, modification or addition, and includes a device known as a bong, but does not include a device of a class or description prescribed by the regulations as not being a waterpipe for the purposes of this section. (2) A person who— (a) sells a waterpipe or an ice pipe, or (b) supplies a waterpipe or an ice pipe in the course of or in connection with a commercial transaction, is guilty of an offence. (3) A person who displays a waterpipe or an ice pipe— (a) in a shop, or (b) near but in connection with a shop, is guilty of an offence, unless the person satisfies the court that the display was not for a commercial purpose. (4) For the purposes of this section, it is immaterial that the waterpipe or ice pipe was used or intended to be used for a purpose other than the administration of a prohibited drug. 11B Possession of tablet press or drug encapsulator (1) A person who has in his or her possession a tablet press or drug encapsulator is guilty of an offence. (2) It is a defence to a prosecution for an offence under subsection (1) if the defendant establishes— (a) that the tablet press or drug encapsulator is used in connection with an activity that is not unlawful, or (b) that the defendant otherwise has a reasonable excuse for possessing the tablet press or drug encapsulator. 11C Possession of instructions for manufacture or production of prohibited drugs (1) A person who has in his or her possession a document that contains instructions for the manufacture or production of a prohibited drug is guilty of an offence. (2) It is a defence to a prosecution for an offence under subsection (1) if the defendant establishes— (a) that the defendant is licensed or authorised under the Poisons and Therapeutic Goods Act 1966 to manufacture or produce the prohibited drug to which the instructions relate, or (b) that the defendant is acting in accordance with an authority granted by the Director-General of the Department of Health where the Director-General is satisfied that the manufacture or production of the prohibited drug to which the instructions relate is for the purpose of scientific research, instruction, analysis or study, or (c) that the defendant is in possession of the document for the purposes of an activity that is not unlawful, or (d) that the defendant otherwise has a reasonable excuse for possessing the document. 12 Self-administration of prohibited drugs (1) A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence. (2) Nothing in this section renders unlawful the administration or attempted administration by a person to himself or herself of a prohibited drug which has been lawfully prescribed for or supplied to the person. 13 Administration of prohibited drugs to others (1) A person who administers or attempts to administer a prohibited drug to another person is guilty of an offence. (2) Nothing in this section renders unlawful the administration or attempted administration of a prohibited drug to another person by— (a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or (b) a person authorised to do so by the Secretary of the Department of Health. (3) Nothing in this section renders unlawful the administration or attempted administration of a prohibited drug to a person for or to whom the prohibited drug has been lawfully prescribed or supplied. 14 Permitting another to administer prohibited drugs (1) A person who permits another person to administer or attempt to administer to him or her a prohibited drug is guilty of an offence. (2) Nothing in this section renders unlawful the giving of permission for the administration or attempted administration of a prohibited drug by a person for whom or to whom the prohibited drug has been lawfully prescribed or supplied. 15 Forging etc prescriptions A person who forges or fraudulently alters or utters, knowing it to be forged or fraudulently altered, a prescription of a medical practitioner, nurse practitioner, midwife practitioner or veterinary practitioner including a prohibited drug is guilty of an offence. 16 Obtaining etc prescription by false representation A person— (a) who knowingly by any false representation (whether verbal, or in writing, or by conduct)— (i) obtains from a medical practitioner, nurse practitioner, midwife practitioner or veterinary practitioner a prescription including a prohibited drug, or (ii) induces a pharmacist to dispense a forged or fraudulently altered prescription obtained in contravention of this paragraph knowing it to be forged or so altered or obtained, or (b) who is in actual possession of a forged or fraudulently altered prescription including a prohibited drug or a prescription obtained in contravention of paragraph (a), knowing it to be forged or so altered or so obtained, is guilty of an offence. 17 Obtaining prohibited drug by false representation A person who knowingly by any false representation (whether verbal, or in writing, or by conduct), obtains or attempts to obtain a prohibited drug from a medical practitioner, nurse practitioner, midwife practitioner, dentist, pharmacist or veterinary practitioner is guilty of an offence. 18 Obtaining prohibited drugs from medical practitioners, nurse practitioners or midwife practitioners (1) A person who, by any representation (whether verbal, or in writing, or by conduct), obtains or attempts to obtain— (a) a prohibited drug, or (b) a prescription that includes a prohibited drug, from an authorised person without previously informing the authorised person of the quantity of that or any other prohibited drug or prohibited drugs for which the person has obtained prescriptions from authorised persons within the period of 2 months immediately preceding the time of the representation, where the failure or refusal to inform the authorised person is made with intent to deceive the authorised person, is guilty of an offence. (2) In this section— authorised person means a medical practitioner, nurse practitioner or midwife practitioner. 18A Advertising or holding out that premises are available for use for unlawful administration of prohibited drugs (1) A person responsible for any premises is guilty of an offence if— (a) the person advertises or holds out in any way that the premises are available for use for the administration of prohibited drugs (whether or not for financial or material reward), or (b) the person causes, suffers or permits any other person to advertise or hold out in any way that the premises are available for use for the administration of prohibited drugs (whether or not for financial or material reward). (2) For the purposes of this section, a person is responsible for premises if the person is the owner, lessee or occupier of the premises, or if the person participates in the management of the premises. (3) This section does not apply to or in respect of a licensed injecting centre within the meaning of Part 2A. 18B Manufacture, production, possession and supply of certain Schedule 9 substances (1) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a Schedule 9 substance (not being a prohibited drug within the meaning of this Act) is guilty of an offence. (2) A person who supplies, or who knowingly takes part in the supply of, a Schedule 9 substance (not being a prohibited drug within the meaning of this Act) is guilty of an offence. (3) A person who has in his or her possession a Schedule 9 substance (not being a prohibited drug within the meaning of this Act) is guilty of an offence. Maximum penalty (subsection (3)): 20 penalty units or imprisonment for 12 months, or both. (4) Nothing in this section renders unlawful the manufacture, production, possession or supply of a Schedule 9 substance (not being a prohibited drug) by— (a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or (b) a person in accordance with an authorisation given by the Secretary of the Ministry of Health under section 17D of that Act, or renders unlawful the taking part by any other person in the manufacture, production or supply of such a substance by a person to whom paragraph (a) or (b) applies or the possession of the substance by the other person for those purposes. 19 Aiding, abetting etc commission of offence in New South Wales (1) A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the firstmentioned offence. (2) A person does not commit an offence because of this section for any act or omission that is an offence under section 43B. 20 Aiding, abetting etc commission of offence outside New South Wales (1) A person who, in New South Wales, aids, abets, counsels, procures, solicits or incites the commission of an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this Division, is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the firstmentioned offence in New South Wales. (2) A person does not commit an offence because of this section for any act or omission that is an offence under section 43B. 21 Penalties The penalty for an offence under this Division is a fine of 20 penalty units or imprisonment for a term of 2 years, or both, except as otherwise expressly provided by this Division. Division 2 Indictable offences 22 Indictable prosecution (1) Subject to the provisions of this Division and the Criminal Procedure Act 1986, an offence under this Division is to be prosecuted on indictment. (2) (Repealed) 23 Offences with respect to prohibited plants (1) A person who— (a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant, (b) supplies, or knowingly takes part in the supply of, a prohibited plant, or (c) has a prohibited plant in his or her possession, is guilty of an offence. (1A) A person who— (a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is— (i) not less than the small quantity applicable to the prohibited plants, and (ii) less than the commercial quantity applicable to those prohibited plants, and (b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose, is guilty of an offence. (1B) If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the small quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) (a), and the person is liable to punishment accordingly. (1C) If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the person cultivated, or knowingly took part in the cultivation of, a prohibited plant for a commercial purpose, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) (a), and the person is liable to punishment accordingly. (2) A person who— (a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, (b) supplies, or knowingly takes part in the supply of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, or (c) has a number of prohibited plants in his or her possession which is not less than the commercial quantity applicable to prohibited plants, is guilty of an offence. (3) If, on the trial of a person for an offence under subsection (2) (other than in relation to the cultivation of prohibited plants by enhanced indoor means), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person is liable to punishment accordingly. (3A) If, on the trial of a person for an offence under subsection (2) in relation to the cultivation of prohibited plants by enhanced indoor means, the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of— (a) an offence under subsection (1A), if the jury is satisfied that the person contravened subsection (1A), or (b) an offence under subsection (1) (a), if the jury is not satisfied that the person contravened subsection (1A), but is satisfied that the person contravened subsection (1) (a), and the person is liable to punishment accordingly. (4) Nothing in this section renders unlawful any act relating to the cultivation, supply or possession of a prohibited plant by— (a) a person— (i) who informs the court before which the person is prosecuted that the person proposes to adduce evidence as referred to in subparagraph (ii), and (ii) who adduces evidence which satisfies the court that, having regard to all the circumstances, including the person's conduct, in which the act constituting the offence was done or preparatory to the doing of the act, the person did not know or suspect and could not reasonably be expected to have known or suspected that the prohibited plant was a prohibited plant, or (a1) a person acting under a poppy licence or poppy permit under the Poppy Industry Act 2016, or (b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the cultivation, supply or possession of the prohibited plant is for the purpose of scientific research, instruction, analysis or study, or (c) a person acting in accordance with a direction given by the Commissioner of Police under section 39Q. (5) Where a person informs a court as referred to in subsection (4) (a) (i), evidence of any previous conviction of the person for any offence, being evidence which may intend to rebut the evidence referred to in subsection (4) (a) (ii), may, with the leave of the court, be adduced by the prosecutor. (6) In this section and section 23A, cultivating a prohibited plant for a commercial purpose includes cultivating the plant— (a) with the intention of selling it or any of its products, or (b) with the belief that another person intends to sell it or any of its products. 23A Offences with respect to enhanced indoor cultivation of prohibited plants in presence of children (1) A person who— (a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant by enhanced indoor means, and (b) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process, is guilty of an offence. (2) A person who— (a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants by enhanced indoor means which is not less than the commercial quantity applicable to those plants, and (b) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process, is guilty of an offence. (3) A person who— (a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is— (i) not less than the small quantity applicable to the prohibited plants, and (ii) less than the commercial quantity applicable to those prohibited plants, and (b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose, and (c) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,