New South Wales: 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, is guilty of an offence. (4) If, on the trial of a person for an offence under subsection (2), 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 (3), if the jury is satisfied that the person contravened subsection (3), or (b) an offence under subsection (1), if the jury is not satisfied that the person contravened subsection (3), but is satisfied that the person contravened subsection (1), and the person is liable to punishment accordingly. (5) If, on the trial of a person for an offence under subsection (3), 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), and the person is liable to punishment accordingly. (6) It is a defence to a prosecution for an offence under subsection (1), (2) or (3) if the defendant establishes that the exposure of the child to the prohibited plant cultivation process, or to substances being stored for use in that process, did not endanger the health or safety of the child. (7) If, on the trial of a person for an offence under subsection (1), (2) or (3), the jury— (a) is not satisfied that a child was exposed to the cultivation of a prohibited plant by enhanced indoor means, or to substances being stored for use in such a cultivation process, or (b) is satisfied that the defence referred to in subsection (6) has been made out, the jury may acquit the person of the offence charged and find the person guilty of an offence under section 23 (1) (a), (2) (a) or (1A), respectively, and the person is liable to punishment accordingly. (8) In this section, child means a person who is under the age of 16 years. 24 Manufacture and production of prohibited drugs (1) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug is guilty of an offence. (1A) A person who— (a) manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug, and (b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process, is guilty of an offence. (2) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. (2A) A person who— (a) manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug, and (b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process, is guilty of an offence. (3) If, on the trial of a person for an offence under subsection (2) or (2A), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (1A), respectively, and the person is liable to punishment accordingly. (3A) It is a defence to a prosecution for an offence under subsection (1A) or (2A) if the defendant establishes that the exposure of the child to the prohibited drug manufacturing or production process, or to substances being stored for use in that manufacturing or production process, did not endanger the health or safety of the child. (3B) If, on the trial of a person for an offence under subsection (1A) or (2A), the jury— (a) is not satisfied that a child was exposed to a prohibited drug manufacturing or production process, or to substances being stored for use in such a manufacturing or production process, or (b) is satisfied that the defence referred to in subsection (3A) has been made out, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly. (4) Nothing in this section renders unlawful the manufacture or production of a prohibited drug by— (a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or (a1) a person acting under a poppy licence 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 manufacture or production of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or renders unlawful the taking part by any other person in the manufacture or production of a prohibited drug by a person to whom paragraph (a), (a1) or (b) applies. (5) In this section, child means a person who is under the age of 16 years. 24A Possession of precursors and certain apparatus for manufacture or production of prohibited drugs (1) A person who has possession of— (a) a precursor, or (b) a drug manufacture apparatus, intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence. (2) Nothing in this section renders unlawful the possession of a precursor or drug manufacture apparatus for use in the manufacture or production of a prohibited drug by— (a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or (a1) a person acting under a poppy licence under the Poppy Industry Act 2016, or (b) a person 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 is for the purpose of scientific research, instruction, analysis or study. (2A) (Repealed) (3) In this section— drug manufacture apparatus means an apparatus specified or described in the regulations as a drug manufacture apparatus for the purposes of this section. precursor means a substance specified or described in the regulations as a precursor for the purposes of this section. 24B Possession of prohibited drug precursors (1) A person who has in his or her possession a precursor of a quantity not less than the quantity prescribed by the regulations in relation to that precursor 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 in possession of the precursor for the purposes of an activity that is not unlawful, or (b) that the defendant otherwise has a reasonable excuse for possessing the precursor. (3) In this section, precursor means a substance— (a) that is capable of being used to manufacture or produce a prohibited drug, and (b) that is specified or described in the regulations as a precursor for the purposes of this section. 25 Supply of prohibited drugs (1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence. (1A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence. (2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. (2A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug to a person under the age of 16 years is guilty of an offence. (2B) Where, on the trial of a person for an offence under subsection (1A) or (2A), the jury are satisfied that the person charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person to whom the prohibited drug was supplied was of or above the age of 16 years, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly. (2C) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person is guilty of an offence. (2D) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. (2E) It is a defence to a prosecution for an offence under subsection (2C) or (2D) if the defendant establishes that the defendant had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person who was procured to supply, or take part in the supply of, the prohibited drug was of or above the age of 16 years. (3) Where, on the trial of a person for an offence under subsection (2) or (2D), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2C), respectively, and the person shall be liable to punishment accordingly. (4) Nothing in this section renders unlawful the supply of 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 acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or (b1) a police officer to a person who has been granted an authority mentioned in section 10(2)(b) to possess the prohibited drug, or (c) a person acting in accordance with a direction given by the Commissioner of Police under section 39Q, or renders unlawful the taking part by any other person in the supply of a prohibited drug by a person to whom this subsection applies. (5) Nothing in this section renders unlawful the administration of a prohibited drug to a person being cared for by another person in the circumstances described in section 10 (2) (d). 25A Offence of supplying prohibited drugs on an ongoing basis (1) Offence provision A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. Maximum penalty—3,500 penalty units or imprisonment for 20 years, or both. (2) Same prohibited drug not necessary A person is liable to be convicted of an offence under this section whether or not the same prohibited drug is supplied on each of the occasions relied on as evidence of commission of the offence. (3) Jury must be satisfied as to same 3 occasions of supply If, on the trial of a person for an offence under this section, more than 3 occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence. (4) Alternative verdict—relevant supply offences If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant supply offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant supply offence, and the person is liable to punishment accordingly. (5) Double jeopardy provisions A person who has been convicted of an offence under this section is not liable to be convicted— (a) of a relevant supply offence, or (b) of a separate offence under this section, on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been convicted. (6) A person who has been acquitted of an offence under this section is not liable to be convicted— (a) except as provided by subsection (4)—of a relevant supply offence, or (b) of a separate offence under this section, on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been acquitted. (7) A person who has been— (a) convicted of a relevant supply offence, or (b) acquitted of a relevant supply offence, is not liable to be convicted for an offence under this section on the same, or substantially the same, facts as those relied on as evidence of commission of the relevant supply offence. (8) Liability for relevant supply offences not affected by offence under this section Subject to subsections (5) and (6), this section does not— (a) remove the liability of any person to be convicted of a relevant supply offence, or (b) affect the punishment that may be imposed for any such offence. (9) Exemption—lawful supply Nothing in this section renders unlawful the supply of 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 acting in accordance with an authority granted by the Director-General of the Department of Health where the Director-General is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study. (10) Definitions In this section— cannabis means cannabis leaf, cannabis oil, cannabis plant and cannabis resin. relevant supply offence means any offence under this Act (other than under this section) relating to the supply of a prohibited drug. 25B (Repealed) 26 Conspiring A person who conspires with another person or other persons to commit 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. 27 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 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. 28 Conspiring to commit and aiding etc commission of offence outside New South Wales (1) A person who, in New South Wales— (a) conspires with another person or persons to commit 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, or (b) 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 offence which was committed outside 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. 29 Traffickable quantity—possession taken to be for supply A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless— (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or (b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner. 30 Indictable offences—summary disposal of unless prosecution elects otherwise (1) This section applies to the following offences— (a) an offence under section 23 (1) or 23A (1), (b) an offence under section 24 (1) or (1A), (c) an offence under section 25 (1), (1A) or (2C), (c1) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b) or (c), (d) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b) or (c), and (e) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 23A (1), 24 (1) or (1A) or 25 (1), (1A) or (2C), where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant or prohibited drug concerned in the commission of the offence is not more than the small quantity applicable to the prohibited plant or prohibited drug. (2) Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence to which this section applies. (3) If such an offence is dealt with summarily, the maximum penalty for the offence is a fine of 50 penalty units or imprisonment for 2 years, or both. 31 Indictable offences—summary disposal of unless prosecution or accused elects otherwise (1) This section applies to the following offences— (a) an offence under section 23 (1) or 23A (1), (b) an offence under section 24 (1) or (1A), (c) an offence under section 25 (1), (1A) or (2C), (c1) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b) or (c), (d) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b) or (c), and (e) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 23A (1), 24 (1) or (1A) or 25 (1), (1A) or (2C), where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant or prohibited drug concerned in the commission of the offence is not more than the indictable quantity applicable to the prohibited plant or prohibited drug. (1A) This section also applies to an offence under section 24A or 24B. (2) Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence to which this section applies. (3) If such an offence is dealt with summarily, the maximum penalty for the offence is a fine of 100 penalty units or imprisonment for 2 years, or both. 32 Penalty for offences dealt with on indictment (1) Except as provided by sections 30 and 31, the penalty for— (a) an offence under section 23 (1), (b) an offence under section 24 (1), (c) an offence under section 25 (1), (c1) an offence under section 25 (1A), (d) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b), (c) or (c1), (e) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b), (c) or (c1), or (f) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 24 (1) or 25 (1) or (1A), is— (g) except as provided by paragraph (h), a fine of 2,000 penalty units or imprisonment for a term of 15 years, or both, or (h) where the offence relates to cannabis plant or cannabis leaf, a fine of 2,000 penalty units or imprisonment for a term of 10 years, or both. (2) (Repealed) Note— Offences referred to in this section may be dealt with summarily in certain cases. See Chapter 5 of and Schedule 1 to the Criminal Procedure Act 1986. 33 Penalties for offences involving commercial quantities or cultivation for a commercial purpose (1) This section applies to the following offences— (a) an offence under section 23 (1A) or (2), 24 (2) or 25 (2) or (2A), (b) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (c) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (d) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1A) or (2), 24 (2) or 25 (2) or (2A). (2) The penalty for an offence is— (a) except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, or (b) where the offence relates to cannabis plant or cannabis leaf, a fine of 3,500 penalty units or imprisonment for 15 years, or both. (3) Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is— (a) except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both, or (b) where the offence relates to cannabis plant or cannabis leaf, a fine of 5,000 penalty units or imprisonment for 20 years, or both. (4) In this section— large commercial quantity, in relation to a prohibited plant or prohibited drug, means the number or amount, if any, specified opposite the plant or drug in Column 5 of Schedule 1. 33AA Penalties for offences involving supply to persons under 16 years (1) This section applies if— (a) a person is found guilty of an offence under section 25 (1A) or (2A), or (b) a person is found guilty of— (i) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), or (ii) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), or (iii) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 25 (1A) or (2A). (2) The penalty for the offence is the penalty that would otherwise be imposed by this Act but increased— (a) in the case of a penalty for imprisonment for 2 years—to a penalty of imprisonment for 2 years and 6 months, and (b) in the case of the penalty for an offence under section 25 (2A)—to a penalty of a fine of 4,200 penalty units or imprisonment for 25 years, or both, and (c) in the case of any other penalty, whether a pecuniary penalty or imprisonment by one-fifth. (3) This section has effect despite any other provision of this Act. 33AB Penalties for offences involving possession of prohibited drug precursors (1) The penalty for an offence under section 24A is a fine of 2,000 penalty units or imprisonment for a term of 10 years, or both, except as provided by section 31. (2) The penalty for an offence under section 24B is a fine of 1,000 penalty units or imprisonment for a term of 5 years, or both, except as provided by section 31. 33AC Penalties for offences involving manufacture or production in presence of children or procuring children to supply prohibited drugs (1) This section applies to the following offences— (a) an offence under section 24 (1A) or (2A) or 25 (2C) or (2D), (b) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (c) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (d) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 24 (1A) or (2A) or 25 (2C) or (2D). (2) The penalty for an offence under section 24 (1A) or 25 (2C), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 24 (1A) or 25 (2C), is a fine of 2,400 penalty units or imprisonment for 18 years, or both. (3) The penalty for an offence under section 24 (2A) or 25 (2D), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 24 (2A) or 25 (2D), is a fine of 4,200 penalty units or imprisonment for 25 years, or both. (4) Despite subsection (3), if the court is satisfied that an offence referred to in that subsection involved not less than the large commercial quantity of the prohibited drug concerned, the penalty for the offence is a fine of 6,000 penalty units or imprisonment for life, or both. (5) In this section— large commercial quantity, in relation to a prohibited drug, means the number or amount, if any, specified opposite the drug in Column 5 of Schedule 1. 33AD Penalties for offences with respect to enhanced indoor cultivation of prohibited plants in presence of children (1) This section applies to the following offences— (a) an offence under section 23A (1), (2) or (3), (b) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (c) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (d) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23A (1), (2) or (3). (2) Except as provided by sections 30 and 31, the penalty for an offence under section 23A (1), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 23A (1), is a fine of 2,400 penalty units or imprisonment for 12 years, or both. (3) The penalty for an offence under section 23A (2) or (3), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 23A (2) or (3), is a fine of 4,200 penalty units or imprisonment for 18 years, or both. (4) Despite subsection (3), if the court is satisfied that an offence referred to in that subsection involved not less than the large commercial quantity of the prohibited plant concerned, the penalty for the offence is a fine of 6,000 penalty units or imprisonment for 24 years, or both. (5) In this section— large commercial quantity, in relation to a prohibited plant, means the number or amount, if any, specified opposite the plant in Column 5 of Schedule 1. 33A Provisions relating to life sentences (1) A person sentenced to imprisonment for life for an offence under this Division is to serve that sentence for the term of the person's natural life. (2) Where a person is liable to imprisonment for life for an offence under this Division, the court may nevertheless pass a sentence of imprisonment of fixed duration. (3) This section applies to offences under this Division committed before or after the commencement of this section. However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the offence were instituted against the convicted person before the commencement of this section. (4) Nothing in this section affects the prerogative of mercy. Division 3 Supplementary 34 Commencement of term of imprisonment A term of imprisonment imposed on a person by a court of summary jurisdiction in respect of the non-payment of a fine for an offence against any of the provisions of this Act may be ordered to commence at the expiration of any term of imprisonment imposed on that person for the same offence in addition to the fine. 35 Order for forfeiture etc of certain articles A court which convicts a person of an offence against any of the provisions of this Act or the regulations may order that any article (other than a prohibited plant or prohibited drug) in respect of which the offence was committed shall be forfeited to Her Majesty and that any article so forfeited shall be destroyed or otherwise disposed of as the court thinks fit. 35A Defence to certain offences involving substances used in industry Despite any other provision of this Act, it is not an offence against this Act for— (a) a person to manufacture, produce, possess or supply a substance listed in Schedule 2 if the substance is contained in a product from which the substance cannot be readily extracted or readily synthesized, or (b) a person to manufacture, produce, possess or supply a substance listed in Schedule 2 if