Misuse of Drugs Act 2001 (Tas)

Misuse of Drugs Act 2001 An Act to prohibit the misuse of drugs and activities associated with the misuse of drugs and for related purposes [Royal Assent 17 December 2001] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Misuse of Drugs Act 2001 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – child means a person who has not attained the age of 18 years; conceal, in relation to something, includes conceal or disguise – (a) its source or nature; or (b) its location or movement; or (c) the rights of any person in relation to it; or (d) the identity of its owner; controlled drug means a substance, other than a growing plant, specified or described in Part 2 of Schedule 1 ; controlled plant means a plant specified in Part 3 of Schedule 1 or any part of such a plant; controlled precursor means a substance specified or described in Part 4 of Schedule 1 ; controlled substance means a controlled drug, controlled plant or controlled precursor; conveyance includes an aircraft, vehicle or vessel; cultivate includes – (a) plant a seed, seedling or cutting; and (b) graft, divide or transplant a plant; and (c) nurture, tend or grow a plant; and (d) guard or conceal a plant against discovery or interference, whether by humans or natural predators; and (e) harvest a plant, whether by picking part of the plant, by separating resin or another substance from the plant or by other means; manufacture means any process by which a substance is produced, other than the cultivation of a plant, and includes – (a) the process of extracting or refining a substance; and (b) the process of transforming the substance into a different substance; place includes premises; Poisons List has the same meaning as in the Poisons Act 1971 ; premises includes a conveyance; prepare, in relation to supplying a drug, includes – (a) packaging the drug; and (b) separating the drug into discrete units; product, of a plant, includes – (a) a seed of the plant; and (b) a part of the plant, whether live or dead; and (c) a substance prepared from the plant; regulations means regulations made and in force under this Act; search warrant means a warrant issued under the Search Warrants Act 1997 ; sell means sell, whether by wholesale or retail, and includes – (a) agree to sell; and (b) offer, or expose, for sale; and (c) keep, or possess, for sale; and (d) deal in, barter or exchange; and (e) send, forward, deliver or receive for sale; and (f) authorise, direct, cause, permit or suffer any of those things to be done; supply, in relation to a substance, includes – (a) administer the substance, whether orally, subcutaneously or by other means; and (b) offer or agree to supply the substance; traffic, in relation to a controlled substance, includes – (a) sell the substance; and (b) prepare the substance for supply with the intention of selling it or in the belief that another person intends to sell it; and (c) transport the substance with the intention of selling it or in the belief that another person intends to sell it; and (d) guard or conceal the substance with the intention of selling it or in the belief that another person intends to sell it; and (e) possess the substance with the intention of selling it; and (f) import the substance into Tasmania with the intention of selling it or in the belief that another person intends to sell it; transport includes deliver. (2) For the purposes of this Act, a person is taken to engage in an activity if the person – (a) participates in the activity; or (b) controls or directs the activity; or (c) provides finance or another resource that allows the activity to be carried on. (3) Without restricting the generality of the expression "possession", a controlled substance is taken to be in a person's possession for the purposes of this Act so long as it is on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person's order and disposition, unless the person proves that he or she had no knowledge of the substance. 3A. Meaning of "trafficable quantity" and determining "aggregated trafficable quantity" (1) In this Act – trafficable quantity, of a controlled substance, means – (a) in the case of a controlled drug that is not mixed with or contained in any other substance, a quantity of the controlled drug that is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug; and (b) in the case of a controlled drug that is mixed with or contained in another substance where the combined quantity of the substances is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug, any quantity; and (c) in the case of a controlled plant, a quantity of the controlled plant that is not less than the quantity specified in column 3 of the table in Part 3 of Schedule 1 in relation to the controlled plant; and (d) in the case of a controlled precursor, a quantity of the controlled precursor that is not less than the quantity specified in column 3 of the table in Part 4 of Schedule 1 in relation to the controlled precursor; and (e) in the case of 2 or more controlled substances together, an aggregated trafficable quantity of the controlled substances. (2) To determine, for the purpose of this Act, whether a quantity of 2 or more controlled substances together constitutes an aggregated trafficable quantity – (a) the quantity of each of the controlled substances is to be calculated as a fraction of the trafficable quantity of that controlled substance; and (b) the fractions calculated under paragraph (a) are to be added together; and (c) the quantity is to be taken to constitute an aggregated trafficable quantity if the total of those fractions so added together is equal to or greater than the number "1". 4. Relationship with other Acts Nothing in this Act affects any provision made by or under the Poisons Act 1971 or the Industrial Hemp Act 2015 or renders unlawful anything done in accordance with any such provision. PART 2 - Major offences Division 1 - Proceedings on offences 5. Offences in this Part are indictable offences The offences in this Part are indictable offences. Division 2 - Manufacturing and cultivation 6. Manufacturing controlled drug for sale (1) A person must not manufacture a controlled drug – (a) with the intention of selling the controlled drug; or (b) in the belief that another person intends to sell the controlled drug. Penalty: Imprisonment for a term not exceeding 21 years. (2) If it is proved in proceedings for an offence under subsection (1) that the accused manufactured a trafficable quantity of a controlled drug, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the manufactured drug required to constitute the offence. (3) . . . . . . . . 7. Cultivating controlled plant for sale (1) A person must not cultivate a controlled plant – (a) with the intention of selling the controlled plant or any of its products; or (b) in the belief that another person intends to sell the controlled plant or any of its products. Penalty: Imprisonment for a term not exceeding 21 years. (2) If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence. (3) . . . . . . . . 8. Possessing thing intended for use in manufacture of controlled substance for sale A person must not possess any equipment, instruction or other thing – (a) with the intention of using it to manufacture and sell a controlled substance; or (b) with the intention of using it to manufacture a controlled substance in the belief that another person intends to sell the controlled substance. Penalty: Imprisonment for a term not exceeding 21 years. 9. Possessing thing intended for use in cultivation of controlled plant for sale A person must not possess any equipment, instruction or other thing with the intention of using it to – (a) cultivate and sell a controlled plant; or (b) cultivate a controlled plant in the belief that another person intends to sell the controlled plant. Penalty: Imprisonment for a term not exceeding 21 years. 10. Manufacturing controlled precursor intended for use in manufacture of controlled drugs for sale (1) A person must not manufacture a controlled precursor – (a) with the intention of manufacturing and selling a controlled drug; or (b) with the intention of manufacturing a controlled drug in the belief that another person intends to sell the controlled drug. Penalty: Imprisonment for a term not exceeding 21 years. (2) A person must not manufacture a controlled precursor – (a) with the intention of selling the controlled precursor; and (b) in the belief that the person to whom the controlled precursor is sold intends to use it to manufacture a controlled drug. Penalty: Imprisonment for a term not exceeding 21 years. 11. Selling controlled precursor for use in manufacturing controlled drug A person must not sell a controlled precursor in the belief that the person to whom the controlled precursor is sold, or another person, intends to use it to manufacture a controlled drug. Penalty: Imprisonment for a term not exceeding 21 years. Division 3 - Trafficking and supply 12. Trafficking in controlled substance (1) A person must not traffic in a controlled substance. Penalty: Imprisonment for a term not exceeding 21 years. (2) If it is proved in proceedings for an offence under subsection (1) that the accused – (a) prepared a trafficable quantity of a controlled substance for supply; or (b) transported a trafficable quantity of a controlled substance; or (c) guarded or concealed a trafficable quantity of a controlled substance; or (d) possessed a trafficable quantity of a controlled substance; or (e) imported a trafficable quantity of a controlled substance into Tasmania – it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled substance required to constitute the offence. (3) . . . . . . . . 13. Procuring child to traffic in controlled substance (1) A person must not procure a child to traffic in a controlled substance. Penalty: Imprisonment for a term not exceeding 21 years. (2) For the purposes of this section, a person is taken to have procured a child to traffic in a controlled substance if the person – (a) procures the child to sell the controlled substance; or (b) with the intention of selling the controlled substance or in the belief that another person intends to sell it, procures the child to prepare the controlled substance for supply or to transport the controlled substance. 14. Supplying controlled drug to child A person must not supply a controlled drug to a child. Penalty: Imprisonment for a term not exceeding 21 years. Division 4 - Property derived from major offences 15. Interpretation of Division (1) In this Division – drug offence means an offence under Division 2 or 3 of this Part; proceeds, in relation to a drug offence, includes – (a) the proceeds of any sale involved in committing the offence; and (b) any remuneration or other reward for committing the offence; property means real or personal property, including things in action and other intangible property; property derived from a drug offence does not include a controlled drug, controlled plant or controlled precursor. (2) For the purposes of this Division – (a) property is taken to be directly derived from a drug offence if it is – (i) all or part of the proceeds of the offence; or (ii) wholly or partly acquired by disposing of, or using, the proceeds of the offence; and (b) property is taken to be indirectly derived from a drug offence if it is wholly or partly acquired by disposing of, or using – (i) property directly derived from the offence; or (ii) property indirectly derived from the offence, including any property indirectly derived by virtue of the previous operation of subparagraph (i) ; and (c) property that has been directly or indirectly derived from a drug offence does not lose that status merely by being deposited with an authorised deposit-taking institution or elsewhere for credit to an account or for investment. 16. Concealing, &c., property derived from drug offence A person who knows that any property is directly or indirectly derived from a drug offence must not – (a) conceal the property; or (b) transfer the property; or (c) convert the property; or (d) remove the property from Tasmania – with the intention of evading or helping another person evade – (e) prosecution for a drug offence; or (f) the imposition or enforcement of a pecuniary penalty for a drug offence; or (g) the making or enforcement of an order for the confiscation or forfeiture of the property or any part of it. Penalty: Imprisonment for a term not exceeding 21 years. 17. Receiving property directly derived from drug offence (1) A person must not receive any property if the person – (a) has no legal entitlement to the property; and (b) knows that the property is directly derived from a drug offence committed by another person. Penalty: Imprisonment for a term not exceeding 21 years. (2) For the purposes of this section, property to which a person is legally entitled extends to property that is received by way of testamentary disposition, as reasonable payment for the supply of goods or services or in repayment of a lawful debt but does not extend to property received wholly or partly by way of gift. PART 3 - Minor offences Division 1 - Proceedings on offences 18. Offences in this Part are summary offences The offences in this Part are summary offences. 19. Time for instituting proceedings (1) A prosecution for an offence under this Part may be instituted at any time within 2 years after the commission of the offence. (2) Subsection (1) has effect notwithstanding section 26 of the Justices Act 1959 or any other law. Division 2 - Manufacturing and cultivation 20. Manufacturing controlled precursor A person must not manufacture a controlled precursor. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. 21. Manufacturing controlled drug A person must not manufacture a controlled drug. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. 22. Cultivating controlled plant A person must not cultivate a controlled plant. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. 22A. Cultivating controlled plant for sale (1) A person must not cultivate a controlled plant – (a) with the intention of selling the controlled plant or any of its products; or (b) in the belief that another person intends to sell the controlled plant or any of its products. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years. (2) If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence. Division 3 - Possession, use and administration 23. Possessing thing used for administration of controlled drug A person must not possess a utensil, appliance or other thing that is – (a) used or designed to be used in connection with the preparation, smoking, inhalation, administration or taking of a controlled drug or controlled plant; or (b) apparently intended, after some adjustment, addition or other modification, to be used in connection with the preparation, smoking, inhalation, administration or taking of a controlled drug or controlled plant. Penalty: Fine not exceeding 50 penalty units. 24. Possessing, using or administering controlled drug A person must not – (a) possess a controlled drug; or (b) use a controlled drug; or (c) administer a controlled drug to another person. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. 25. Possessing or using controlled plant or its products A person must not possess or use – (a) a controlled plant; or (b) a controlled plant product. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. Division 4 - Sale, supply and trafficking 26. Selling or supplying controlled drug A person must not sell or supply a controlled drug to another person. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years. 27. Selling or supplying controlled plant or its products A person must not sell or supply to another person – (a) a controlled plant; or (b) a controlled plant product. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years. 27AA. Trafficking controlled substances (1) A person must not traffic in a controlled substance. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years. (2) If it is proved in proceedings for an offence under subsection (1) that the accused – (a) prepared a trafficable quantity of a controlled substance for supply; or (b) transported a trafficable quantity of a controlled substance; or (c) guarded or concealed a trafficable quantity of a controlled substance; or (d) possessed a trafficable quantity of a controlled substance; or (e) imported a trafficable quantity of a controlled substance into Tasmania – it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled substance required to constitute the offence. Division 5 - Miscellaneous 27A. Unlawful importation of controlled substance A person must not import a controlled substance into Tasmania unless the person is authorised to do so by or under another law of the State. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. 28. Unlawful conduct in relation to prescriptions (1) In this section – blank prescription form means – (a) a form that the Commission established under section 4 of the Health Insurance Commission Act 1973 of the Commonwealth has supplied or caused to be supplied to a health professional for the purposes of writing a prescription in accordance with the National Health (Pharmaceutical Benefits) Regulations 1960 of the Commonwealth; or (b) a form that a health professional has privately prepared or caused to be prepared for the purpose of writing a prescription, being a form that identifies, and purports to be a prescription form of, that health professional; conduct includes the making of an oral or written representation; health professional means – (a) a medical practitioner; and (b) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist; and (c) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the nursing profession who is endorsed by the Nursing and Midwifery Board of Australia to practise as a nurse practitioner; and (d) a person who may lawfully practise as a veterinary surgeon, whether in this State or in a Territory or another State. prescription means a prescription of a health professional, for the supply of a substance comprising or consisting of a controlled drug or controlled precursor; unlawfully altered, in relation to a prescription, means altered by a person other than the health professional who issued it. (2) A person must not – (a) forge a prescription; or (b) possess a prescription knowing it to have been forged or unlawfully altered; or (c) utter a prescription knowing it to have been forged or unlawfully altered. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. (3) A person must not unlawfully alter a prescription. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. (4) A person must not obtain a prescription by means of conduct that the person knows to be false, misleading or deceptive. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. (5) A person must not, without lawful excuse, possess a blank prescription form. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years. PART 4 - Enforcement Division 1 - Police powers 29. Power to seize controlled substances, &c. (1) In this section, prescribed belief means a reasonable belief that a controlled substance or other thing in relation to which an offence under this Act has been committed is – (a) in the possession of a person in any place; or (b) on or in a conveyance in any place; or (c) on an animal in any place. (2) A police officer who has a prescribed belief may, without warrant and with such assistance as the police officer reasonably considers necessary, take such one or more of the following actions as may be applicable in the circumstances: (a) search the relevant person and detain that person for the purpose of carrying out the search; (b) search the relevant conveyance or animal and detain it for the purpose of carrying out the search; (c) seize the relevant conveyance or animal; (d) seize anything that may be evidence of an offence under this Act. (2A) However, subsection (2) does not apply to private premises unless the police officer forms the prescribed belief only after having lawfully entered the premises. (3) The police officer, and any person assisting the police officer, may use such force as is necessary and reasonable in the circumstances. (4) A police officer who searches or is empowered to search a person pursuant to subsection (2) or any other Act may arrest the person without warrant if the police officer reasonably believes that the person has committed an offence under this Act. (5) In this section, a reference to a search of a person includes a reference to any clothing worn by the person and anything that may be in the person's possession. 30. Power to conduct personal searches (1) In this section – body cavity means rectum or vagina; strip search means a search, other than a body cavity search ordered by a magistrate under this section, in which the person searched is required to remove most or all of his or her clothes. (2) Where a police officer detains a person for the purpose of search under section 29 or 33 , the following provisions apply: (a) if the person is female and it is proposed to conduct a strip search, a female police officer is to conduct it; (b) if the person is male and it is proposed to conduct a strip search, a male police officer is to conduct it; (c) if the search involves the application of force to the person, the police officer must give the Commissioner of Police a written report about the search within 7 days, including particulars of the circumstances that gave rise to the application of force; (d) if the police officer reasonably suspects that a controlled substance may be present in one or more of the person's body cavities and wishes to determine whether or not that is the case, the police officer must cause the person to be brought before a magistrate; (e) the magistrate before whom the person is brought may make an order that the person's body cavity or cavities specified in the order may be searched by a medical practitioner. (3) The magistrate's order, if made, is sufficient authority for a medical practitioner to search the person's body cavity or cavities specified in the order. (4) Notwithstanding subsection (3) – (a) the person is first to be told that he or she may ask for the search to be conducted by a medical practitioner of the same sex as that person; and (b) if the person does so ask, the search is not to be conducted except by a medical practitioner of that sex unless it is not reasonably practicable in the circumstances for such a medical practitioner to be present. (5) The magistrate's order also authorises – (a) a medical practitioner who is to conduct the search to ask another person to help with the search; and (b) the other person to give that help. (6) Unless it is not reasonably practicable in the circumstances, the person asked to help is to be of the same sex as the person to be searched. (7) If the person subject to the magistrate's order refuses or fails to submit to the search, the medical practitioner and the helper, if any, may use reasonable force to enable the search to be conducted. 31. Power to require information (1) A police officer who seizes a controlled substance or other thing under a search warrant or section 29 may require the person from whom the controlled substance or thing was seized to state – (a) the person's name and the address of the person's place of residence or of the place where the person proposes next to reside; and (b) the place at which, and the person from whom, the first-mentioned person obtained the controlled substance or thing. (2) A person must not – (a) fail to comply with a requirement made under subsection (1) in relation to the particulars referred to in paragraph (a) of that subsection; or (b) without reasonable excuse, fail to comply with a requirement made under subsection (1) in relation to the particulars referred to in paragraph (b) of that subsection when it is within the person's power so to comply; or (c) in response to a requirement made under subsection (1) , give information that the person knows to be false or misleading. Penalty: Fine not exceeding 10 penalty units. (3) A police officer who searches or is empowered to search a person under a search warrant or section 29 may arrest the person without warrant if – (a) the person fails to comply with a requirement made under subsection (1) ; or (b) in response to such a requirement, the person gives information that the police officer reasonably believes to be false or misleading. 32. Power to pursue suspect onto private property Where – (a) a police officer reasonably believes that a person has committed an offence under this Act; and (b) the person flees from the police officer's presence while the police officer, or another police officer, is trying to arrest the person or exercise another power under this Act in relation to the person; and (c) the police officer, or another police officer, immediately pursues the person and the pursuit continues without interruption; and (d) during the pursuit the person enters a private residence or another place that is not a public place – the pursuing police officer may, without warrant and using no more force than is reasonably necessary for the purpose, enter the private residence or other place notwithstanding that it is not a public place. 33. Power when executing search warrant A police officer executing a search warrant in relation to any place may – (a) arrest without warrant any person found at the place who the police officer reasonably believes has committed an offence under this Act; and (b) search any person found at the place and detain any such person for that purpose. Division 2 - Matters relevant to proceedings 34. Prosecution witness need not disclose source of information A witness for the prosecution in proceedings under this Act is not obliged to disclose – (a) the fact that the witness received any information; or (b) the nature of any information received by the witness; or (c) the name of the person who gave the witness any information. 35. Offences by bodies corporate (1) If a body corporate commits an offence under this Act each person concerned in the management of the body corporate is taken also to have committed the offence and may be convicted of the offence unless the person proves that the act or omission constituting the offence took place without the person's knowledge or consent or contrary to the person's orders or directions. (2) A person referred to in subsection (1) may be convicted of an offence under this Act whether or not the body corporate is charged with or convicted of the offence. 36. Children not liable for conduct constituting certain offences A person is not criminally liable for an offence under section 13 or 14 if, at the time of the conduct constituting the offence, the person was a child. 36A. Alternative convictions (1) A person who is indicted for but found not guilty of an offence under section 6(1) may be convicted of an offence under section 21 if the evidence in the proceedings on the indictment establishes that the person committed that othe