The Law
State by State Laws
DACA realises that in Australia, all states have slightly different laws on drugs.
Victorian State Laws
In Victoria drug-related offences are governed by the Drugs, Poisons and Controlled Substances Act (1981). Under this Act, there are a range of different criminal offences relating to the use, distribution and possession of illicit drugs.
Under Victorian law, possession is defined as “having physical custody or control of the drug”, either individually or shared with another.
Possession also applies when the drugs are on land or premises occupied or controlled by the alleged possessor.
The prosecution needs to establish the accused:
- knew the substance was an illicit drug;
- possessed it (see above); and
- intended to possess it
The penalties for drug possession
The specific penalty for a drug possession charge may vary depending on the quantity of the drug, as well as the type.
Possession of small amounts of cannabis may not come with a fine –only a warning (a caution) depending on police discretion. More than 50g of cannabis however may come with a fine of up to 5 penalty units ($909), and potentially a prison sentence of up to a year.
Other illicit drugs may result in being fined 30 penalty units ($5452) or sentenced to up to a year in prison.
drug of dependence, whether by smoking, inhaling, swallowing, injecting or otherwise. These charges are often (but not always) issued alongside charges for possession.
The penalties for drug usage
The penalties for drug possession and/or usage in Victoria are relatively light.
For cannabis for example, usage is punished with a fine or a caution in some circumstances.
In the case of other drugs however, the penalty for usage could be either a fine or imprisonment for up to a year.
Driving while under the effects of drugs may lead to a charge of drug driving – an offence that comes with up to 270 penalty units ($49,070) or 18 months jail for repeat offences.
Victorian law defines drug trafficking quite broadly.
It covers a wide range of different offences:
- Possessing a quantity larger than a single person would reasonably require
- Preparing or manufacturing a drug
- Selling a drug
- Buying drugs on behalf of another party
Just as with the offence of drug possession the prosecution must establish intent to distribute, purchase or produce an illicit substance.
Penalties for drug trafficking
The penalties for drug trafficking are much higher than for possession, with the exact sentence depending on the quantity possessed and age of accused.
Maximum penalties for an adult, might be looking at:
- 15 years jail and/or a fine of up to 1,800 penalty units ($327,132)
- 25 years jail and/or 3,000 penalty units ($545,220) for a commercial quantity of an illegal drug
For individuals under 18 years old, the maximum penalty may be lower – they could face detention in a youth justice centre or a fine.
Since 2016, it’s been legal to cultivate cannabis in Victoria for medicinal purposes.
However, unless said cultivation is carried out under tight controls after obtaining a medicinal cannabis license (in accordance with Section 8E of the revised Narcotics Drugs Act 1967), it remains an illegal act.
Outside of these strict parameters, cultivating cannabis remains an offence.
In Victoria, “cultivation” doesn’t just refer to growing cannabis plants themselves, but to a whole host of activities, including activities associated with preparing the soil, sowing, fertilising, tending and caring for the plants, as well as the act of harvesting the crop.
Penalties for unlicensed, non-medical cannabis cultivation
Whether it’s a single plant at home or a massive unlicensed operation complete with greenhouses and sprinkler systems, unlicensed cultivation comes with a range of penalties depending on the size of the crop and harvest:
- Any quantity – 20 penalty units ($3635) or 12 months imprisonment (15 if the crop was intended to be trafficked)
- More than 100 plants or 25kg – 25 years imprisonment
- More than 1000 plants or 250kg – Life imprisonment
Cultivating cannabis without a license is a major offence, especially if it is a large operation.
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- Failing a roadside drug test
- Driving while impaired by a drug
- Refusing to undertake a roadside drug test and/or impairment test by Victoria Police.
Penalties for drug-driving offences
For the penalties that apply for combined drink and drug-driving offences see https://www.vicroads.vic.gov.au/safety-and-road-rules/road-rules/penalties/combined-drink-and-drug-driving-penalties.
Immediate licence/learner permit suspension
The police also have the power to immediately suspend the licence or learner permit of a person if they charge the person with drug-driving offences – see https://www.vicroads.vic.gov.au/licences/demerit-points-and-offences/immediate-licence-suspension. This suspension lasts until the charges have been decided in court.
Queensland State Laws
Relevant legislation is the Drugs Misuse Act 1986 (Qld) , the Health Act 1937 (Qld) and the Health Regulation 1996 (Qld)
OFFENCES:
Under the Drugs Misuse Act:
- trafficking in dangerous drugs (Section 5) – A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime punishable by up to 25 years imprisonment for Schedule 1 drugs and up to 20 years imprisonment for Schedule 2 drugs. Even a single sale of a quantity of a drug, together with some proof that a business was being carried on, constitutes trafficking.
supplying dangerous drugs (Section 6) –The definition of ‘supply’ is very broad and includes not only giving, selling, administering, transporting or distributing a drug, but offering to do such things or even doing anything preparatory to, in furtherance of or for the purpose of any of those acts (s 4 Drugs Misuse Act).
- receiving/possessing property obtained from trafficking or supplying dangerous drugs (Section 7) – maximum penalty 20 years. This offence covers receiving or possessing any property, other than dangerous drugs, that is directly or indirectly obtained from offences of trafficking or supplying, even where those acts are committed outside Queensland. It is punishable by imprisonment for a maximum of 20 years and the property in question can also be forfeited. The property is most often cash.
In addition, any other person who receives or possesses property by mortgage, pledge or exchange, and knows that the property was obtained by trafficking or supplying, is guilty of an offence. This offence also carries the same maximum penalties as outlined above.
- producing dangerous drugs (Section 8) – Includes preparation, manufacture, cultivation, packaging, production or offering to do any of the above, or doing anything preparatory to, in furtherance of or for the purpose of such things (see Section 4). Manufacturing includes pressing dangerous drugs (such as MDMA) into pills. Packaging includes putting saleable quantities of dangerous drugs (such as cocaine) into clip seal bags. Producing also encompasses the cultivation of cannabis.
Drying out cannabis is preparation and, therefore, producing.
Cultivation requires some positive act but can cover such actions as watering, growing the seed, harvesting and ancillary activities to harvesting such as drying and stacking. Again, the maximum penalties are determined according to the schedule for the drug and the quantity.
Depending on the circumstances penalties range from 15 to 25 years imprisonment.
publishing or possessing instructions for producing dangerous drugs (Section 8A) – penalties range from 20 to 25 years
- possessing dangerous drugs (Section 9) – Possession is not defined in the Drugs Misuse Act, but Section 116 means the definition in Schedule 1 of the Qld Criminal Code Possession can include a situation where another person has actual custody of the thing concerned. This definition is not exhaustive and court cases have mapped out what possession means.
An occupier or manager of a place is deemed to be in possession of drugs found on premises under their control, unless they can show they neither knew nor had reason to suspect that the drugs would be there (Section 129(1)(c) Drugs Misuse Act).
Whether someone is an occupier is a question of fact. Some interest or personal involvement in control or management of the premises must be shown. A person who is able to exclude strangers from their premises is an occupier. An occupier need not be physically on the premises at the relevant time. One premises may have a number of occupiers. Possession can be actual, constructive or joint. Actual possession can include physical possession or non-physical possession, which can occur when an item is under a person’s control, even if not physically within their possession Constructive possession occurs when the goods are in the possession of one person, but another person has the right to obtain the goods (e.g. items left in a cloakroom remain in the possession of the owner even though the cloakroom attendant has actual physical custody). Joint possession occurs when more than one person has possession of an item at the same time (e.g. a marijuana cigarette passed around at a party may be in the joint possession of all persons smoking it).
Possession requires both knowledge of the item concerned and control of it. Both knowledge and control must be proved beyond reasonable doubt, but proof of knowledge can be based on an inference drawn from all the circumstances. It is also enough for the prosecution to prove that the defendant knowingly possessed a dangerous drug, with the onus then shifting to the defendant to prove that their possession of the drug was innocent (e.g. they were mistaken as to the nature of that substance). Penalties range from 15 to 25 years.
possessing, supplying and producing relevant substances or things such as chemicals and apparatus used to manufacture dangerous drugs (Sections 9A–9C) – These offences are particularly aimed at those manufacturing drugs such as amphetamines. An offence of trafficking in precursors carries a maximum penalty of 20 years imprisonment. Sections 9A to 9D deal with ‘relevant substances or things’, which are defined in Schedules 8A and 8B of the Drugs Misuse Regulation 1987 (Qld) (Regulation) to include precursor chemicals and things used in drug production such as condensers, distillation heads and heating mantles.
- possessing things used in connection with a crime involving dangerous drugs (Section 10) – This could cover anything involved in a drug offence, including the motor vehicle used to transport drugs and the hose used to water drugs. It has been held that it is sufficient if the person in possession intends another to use the item in connection with the production of a dangerous drug, even though no such production has occurred or is in contemplation by the other person.
permitting a place to be used for drug offences (Section 11) – It is an offence punishable by up to 15 years imprisonment for a person to permit a place that they occupy, manage or control to be used for any offence under the Act. A place includes a vehicle.
The courts have the power to impose fines for offences under the Drugs Misuse Act, instead of or in addition to imprisonment (s 126 Drugs Misuse Act). The maximum fines are:
- $689 250 (5000 penalty units; one penalty unit is currently $137.85) where the offence is tried on indictment
- $13 785 (100 penalty units) where the offence is tried summarily.
ACT State Laws
In the ACT drug related offences and their penalties are dealt with in the Drugs of Dependence Act 1989, the ACT Criminal Code 2002 and the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT).
Under the Drugs of Dependence Act:
A prohibited substance means a substance prescribed by regulation as a prohibited substance; and
A drug of dependence means a substance prescribed by regulation as a drug of dependence.
The Regulations are made by the Executive – see Section 206
Cultivation of 1 or 2 cannabis plants (Section 162) (NB Only applies to persons over the age of 18)
- Cultivation of more than 4 cannabis plants at premises (Section 171AAA)
NB It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant— (a) lived at the premises when cultivating the cannabis; and (b) was not aware, and could not reasonably have been expected to be aware, that more than 4 cannabis plants were being cultivated at the premises.
- Cannabis plant cultivation- other offences (Section 171AAB) –
It is an offence to cultivate a cannabis plant at premises other than where the person resides or in an area lawfully accessible to a member of the public.
- Storage of cannabis (Section 171AAC) –
It is an offence to store cannabis if it is not stored out of the reach of children. NB It is a defence that the person took all reasonable steps to ensure that a child could not access the cannabis.
- Sale or supply of a drug of dependence or a prohibited substance (NB cannabis is not a prohibited substance) (Section 164)
- Possessing drugs of dependence (Section 169)
- Possessing prohibited substances (Section 171) (NB Prohibited substance does not include cannabis)
- Possessing cannabis (Section 171AA) –
(1) A person commits an offence if the person possesses—
(a) 50g or less of dried cannabis; or
(b) 150g or less of cannabis that has been harvested and—
(i) is not dried cannabis; or
(ii) is a mixture of dried cannabis and cannabis that is not dried cannabis.
Maximum penalty: 1 penalty unit.
(2) A person commits an offence if the person possesses—
(a) more than 50g of dried cannabis; or
(b) more than 150g of cannabis that has been harvested and—
(i) is not dried cannabis; or
(ii) is a mixture of dried cannabis and cannabis that is not dried cannabis.
Maximum penalty: 50 penalty units, imprisonment for 2 years or both.
NB Only applies if person is over 18 years of age.
- Smoking cannabis in public place or near child (Section 171AB)
NB It is a defence if the person:
- took all reasonable steps to ensure that the child was not exposed to the smoke or vapour; or
(b) believed on reasonable grounds that the child was 18 years old or older.
NB The offences of possession, sale or supply of drugs of dependence or prohibited substances do not apply where a person is authorised under the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) to so possess, sell or supply the drug or substance.
NB The Criminal Code, Chapter 2 also applies to these offences (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
NB The Drugs of Dependence (Personal Use) Amendment Bill 2021 is presently before the ACT parliament. It would amend the Drugs of Dependence Act to make it only a civil offence to possess or cultivate specified drugs up to a “personal limit.” Over the personal limit it would remain a criminal offence.
New South Wales State Laws
The Drug Misuse and Trafficking Act 1985 (NSW) is the main legislation dealing with drugs in NSW. The following are offences under this Act.
- Possession of prohibited drugs (Section 10)
- Possession of equipment for administration of prohibited drugs (Section 11)
- Sale, supply or display and water pipes and ice pipes (Section 11A)
- Possession of tablet press or drug encapsulator (Section 11B)
- Possession of instructions for manufacture or production of prohibited drugs (Section 11C)
- Self-administration of prohibited drugs (Section 12)
- Administration of prohibited drugs to others (Section 13)
- Permitting another to administer prohibited drugs (Section 14)
- Forging etc prescriptions (Section 15)
- Obtaining etc prescription by false representation (Section 16)
- Obtaining prohibited drug by false representation (Section 17)
- Obtaining prohibited drugs from medical practitioners, nurse practitioners or midwife practitioners (Section 18)
- Advertising or holding out that premises are available for use for unlawful administration of prohibited drugs (Section 18A)
- Manufacture, production, possession and supply of certain Schedule 9 substances (Section 18B)
- Aiding, abetting etc commission of offence under the Act in New South Wales (Section 19)
- Aiding, abetting etc commission of offence under the Act outside New South Wales (Section 20)
NB All these offences have exceptions where the offence will not apply. Refer to the relevant Sections to see exceptions.
- Cultivating, or knowingly taking part in the cultivation of, a prohibited plant
- Suppling, or knowingly taking part in the supply of, a prohibited plant
- Having possession of a prohibited plant (Section 23)
- Cultivating, or knowingly taking part in the cultivation of, a prohibited plant by enhanced indoor means, and exposing a child to that cultivation process, or to substances being stored for use in that cultivation process (Section 23A)
- Manufacture and production of prohibited drugs (Section 24)
- Possession of precursors and certain apparatus for manufacture or production of prohibited drugs (Section 24A)
- Possession of prohibited drug precursors (Section 24B)
- Supply of prohibited drugs (other than cannabis leaf to a person under 16) in quantity more than the commercial quantity applicable to (ie allowed in respect of) that drug (Section 25)
- Offence of supplying prohibited drugs on an ongoing basis (ie more than 3 times within a consecutive period of 30 days) (Section 25A)
- Conspiring and aiding and abetting an offence under the Act (Sections 26-28)
- Trafficking (Section 29)
NB Some indictable offences can be dealt with summarily ie effectively dealt with as civil and not criminal offences (Sections 30 and 31)
The Road Transport Act 2013 (NSW) Part 5.1 deals with road offences that involve alcohol and/or drugs.
It is an offence to:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)—occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle. (Section 111)
The procedures for testing for alcohol or other drug use by drivers and other road users are covered in Schedule 3 to the Road Transport Act 2013.
Western Australia State Laws
The main legislation is the Misuse of Drugs Act 1981.
1 (a) Prohibited drugs:
- Possession with intent to sell or supply
- Sale or supply to another person
- Manufacture (see Section 6)
“Prohibited drug” – see Section 4 – means drugs of addiction and drugs specified in Schedule 1.
“Drugs of addiction” are those specified in Section 3 of the Medicines and Poisons Act 2014 as Schedule 8 or 9 poisons.
1 (b) Prohibited plants:
Possess or cultivate with intent to sell or supply to another person
Sell or supply to another person (see Section 7)
“Prohibited plant” – see Section 4 – means “plants from which a drug of addiction may be obtained, derived or manufactured” and the plants specified in Schedule II.
Knowingly permitting premises to be used:
As an occupier, owner or lessee, knowingly allowing the premises to be used for the purpose of:
manufacture or preparation of a prohibited drug or prohibited plant for use; or
for the manufacture, preparation, sale, supply or use of a prohibited drug or prohibited plant;
for the purpose of using a prohibited drug or prohibited plant
commits an offence.
Any person who:
is knowingly concerned in the management of any premises used for any of the above purposes; or
is found in any place which is then being used for the purpose of smoking a prohibited drug or prohibited plant other than cannabis. (see Section 5)
commits an offence.
3. Selling or supplying a thing knowing it will be used in hydroponic cultivation of prohibited plants contrary to Section 7. (see Section 7A)
- Drug Paraphernalia:
- Display for sale
- Sell
- possession of any drug paraphernalia in or on which there is a prohibited drug or a prohibited plan. (see Section 7B)
For definition of “drug paraphernalia” see Section 7B(1)
- Cannabis Offences
Minor cannabis related offence means:
- An offence under Section 7B(6) ie being in possession of any drug paraphernalia involves cannabis; and
- An offence under Section 6(2) that involves cannabis if the amount is not more than 10 g, or such other amount as is prescribed by the regulations; and does not involve a cannabis plant under cultivation, cannabis resin or any other cannabis derivative.
For “minor cannabis related offences” rather than a fine or imprisonment a cannabis intervention requirement (CIR) may be made – see Section 8F – A CIR is a notice in a form prescribed by the regulations containing a description of the alleged offence/offences and informing the alleged offender that he/she may, in writing, elect to be prosecuted for the alleged offence/offences, in a court, or if he/ she does not wish to be prosecuted for the alleged offence/offences that he/she may, within a period of 28 days after the giving of the CIR, complete a cannabis intervention session (CIS). For definition of CIS see Section 8B(1). The purpose of a cannabis intervention session is to inform those who complete it about —
(a) the adverse health and social consequences of cannabis use;
(b) the laws relating to the use, possession and cultivation of cannabis;
(c) effective strategies to address cannabis using behaviour. (see Section 8J(1)).
Special provisions re young people (under 18):
not to give a young person a CIR if has had CIRs for offences before – see Section 8G;
and
a police officer is to refer a young person at risk to a juvenile justice team where appropriate under the Young Offenders Act 1994 in preference to charging the young person under this Act – see Section 8H.
- Psychoactive substances
· Manufacture, sale or supply of psychoactive substances(see Section 8Q)· Promoting psychoactive substances (see Section 8R)
A psychoactive substance means any substance that has the capacity to induce a psychoactive effect on the person.
Psychoactive effect means the effect of stimulating or depressing the central nervous system resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood; or the effect of causing a state of dependence, including physical or psychological addiction. (see Section 8N(1))
- Possession of certain substances or things
- A person who, without lawful excuse, has possession of a substance(s) that contain(s) a quantity of a category 1 item or a category 2 item that exceeds the quantity prescribed in relation to the item concerned commits a crime. (see Section 14)
Definition of Category 1 and Category 2 items – see Section 12. The regulations made under Section 20 govern exactly what these items are.
- A person who sells or supplies a category 1 item without relevant authorisation commits an offence. (see Section 15)
- A person who sells or supplies category 1 items who fails to store those items in a manner that prevents access to them by any person other than a person who is authorised in writing by the supplier to have such access commits an offence. (see Section 16)
Drug trafficking (see Section 32A)
Northern Territory State Laws
It’s an offence in the NT to possess, supply or manufacture a prohibited drug. Many drugs are prohibited.
Key legislation is the Misuse of Drugs Act
Other possession offences – Sections 8 – 8C:
- Receiving or possessing tainted property ie intentionally receiving or possessing property other than a dangerous drug but which was obtained by an possession, cultivation or trafficking offence against the Act;
- intentionally receiving or possessing property (secondary property )which , wholly or in part has been mortgaged, pledged or exchanged or into which other property has been converted that other property having been obtained directly or indirectly from the commission of an offence against the Act.;
- Possessing precursors of dangerous drugs;
- Possessing a document containing instructions for manufacture of dangerous drug or precursor
- Possessing articles for use in manufacture of dangerous drug or precursor.
Other offences – Sections 11X and11Y, 12, 13, 14, 15 and 19:
Supplying precursor for use in manufacture of a dangerous drug – Section 11X
Possession of things for administering dangerous drugs – Section 11Y
Self-administering dangerous drug – Section 13
Allowing another person to administer dangerous drug – Section 14
Display or supply of cocaine kit, water pipe or ice pipe – Section 15
Being party to offences committed outside Territory – Section 19
Schedules 1 and 2 list which drugs are “dangerous drugs” for the purposes of the Act:
Drugs that carry the highest penalties are:
- heroin
- cocaine
- PCP or Angel Dust – also called phencyclidine
- LSD – also known as lysergic acid and lysergide
- methamphetamine – also known as meth, speed and ice.
Other prohibited drugs are:
- cannabis
- cathinone and methcathinone – also known as meow meow or bath salts
- ketamine
- MDMA – also known as ecstasy or methylenedioxymethamphetamine.
Schedule 3 sets out amounts of cannabis that must be in a person’s possession, or be used or cultivated by a person for the police to be able to issue an infringement notice – up to that threshold an infringement notice and a fine are the only penalties.
Driving and drugs
It’s an offence in the NT to drive if you have a prohibited drug in your blood. This is measured by NT police using a saliva test.
Read more about drug driving penalties.
Persons under 18 who commit a crime connected to alcohol or drug use can be sent by the police to counselling or drug and alcohol abuse programs in Darwin, Katherine, Tennant Creek, Nhulunbuy and Alice Springs.
Read more about diversion programs for young people.
They may also have to go to the Youth Justice Court. Read more about young people and going to court.
Sniffing and volatile substances
It is not against the law to sniff or inhale a volatile substance.
It is against the law to supply a volatile substance to another person knowing they intend to inhale it. You can read the Volatile Substance Abuse Prevention Act 2005.
Volatile substances can be all of the following:
- intoxicating fuels for vehicles, such as petrol
- butane gas (lighter fluid)
- aerosol paints and spray paint
- glue
- spray deodorant
- correction fluid.
Read about the health effects of inhaling volatile substances.
What the police can do
If the police think a young person has been sniffing or inhaling a volatile substance they can:
- search the person
- dispose of the substance
- take the person into protective custody
- take the person a place of safety or to a responsible adult
- arrest the person if he/she has committed a crime.
Tasmania State Laws
The main legislation is the Misuse of Drugs Act 2001
MAJOR OFFENCES (these are indictable (criminal) offences
- Manufacturing controlled drug for sale (Section 6) –
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.
A “controlled drug” is defined in Part 2 Schedule 1. Includes drugs such as amphetamines, cocaine, diazepam, ephedrine, fentanyl, ketamine, methadone, morphine, opium – considered “serious” drugs. Does not include cannabis/marijuana (except, with exceptions, tetrahydrocannabinols) or heroin (except that heroin is an opioid drug made from morphine, a natural substance taken from the seed pod of opium poppy plants).
- Cultivating controlled plant for sale (Section 7) –
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.
A “controlled plant” is defined in Part 3 Schedule 1 and includes cannabis plants, resin, oils, poppy plants, seeds and pods.
Possessing thing intended for use in manufacture of controlled substance for sale (Section 8) –
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.
A controlled substance means a controlled drug, controlled plant or controlled precursor (see definitions above)
A controlled precursor means a substance specified or described in Part 4 of Schedule 1
Possessing thing intended for use in cultivation of controlled plant for sale (Section 9) –
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.
- Manufacturing controlled precursor intended for use in manufacture of controlled drugs for sale (Section 10) –
A person must not manufacture a controlled precursor –
– with the intention of manufacturing and selling a controlled drug; or
-with the intention of manufacturing a controlled drug in the belief that another person intends to sell the controlled drug; or
– with the intention of selling the controlled precursor 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.
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.
Trafficking in controlled substance (Section 12) –
A person must not traffic in a controlled substance.
Penalty: Imprisonment for a term not exceeding 21 years.
“Traffic” includes to prepare for supply, transport, guard or conceal, possess or import a trafficable quantity of a controlled substance.
Procuring child to traffic in controlled substance (Section 13) –
A person must not procure a child to traffic in a controlled substance ie to sell the controlled substance or to prepare the controlled substance for supply or to transport the controlled substance.
Penalty: Imprisonment for a term not exceeding 21 years.
Supplying controlled drug to child (Section 14) –
A person must not supply a controlled drug to a child.
Penalty: Imprisonment for a term not exceeding 21 years.
Concealing, &c., property derived from drug offence (Section 16) –
A person who knows that any property is directly or indirectly derived from a drug offence must not conceal, transfer, convert or remove that property from Tasmania with the intention of evading or helping another person evade a prosecution for a drug offence or the imposition or enforcement of a pecuniary penalty for a drug offence or 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.
Receiving property directly derived from drug offence(Section 17) –
A person must not receive any property if the person has no legal entitlement to the property and knows that the property is directly derived from a drug offence committed by another person.
Penalty: Imprisonment for a term not exceeding 21 years.
MINOR OFFENCES
Manufacturing controlled precursor (Section 20) or Manufacturing controlled drug (Section 21) –
A person must not manufacture a controlled precursor or a controlled drug.
Penalty: Fine not exceeding 50 penalty units (approx. $8,600) or imprisonment for a term not
exceeding 2 years.
Cultivating controlled plant (Section 22) –
A person must not cultivate a controlled plant.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
Cultivating controlled plant for sale (Section 22A) –
A person must not cultivate a controlled plant with the intention of selling the controlled plant or any of its products or in the belief that another person intends to sell the controlled plant or any of its products.
Penalty: Fine not exceeding 100 penalty units (approx. $17,000) or imprisonment for a term not exceeding 4 years.
Possessing thing used for administration of controlled drug (Section 23) –
A person must not possess a utensil, appliance or other thing that is used or designed to be used or apparently intended after some adjustment 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.
Possessing, using or administering controlled drug (Section 24) –
A person must not possess or use a controlled drug or administer a controlled drug to another person.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
Possessing or using controlled plant or its products (Section 25) –
A person must not possess or use a controlled plant or a controlled plant product.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
Selling or supplying controlled drug (Section 26) –
A person must not possess or use a controlled plant or a controlled plant product.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
Selling or supplying controlled plant or its products (Section 27) –
A person must not sell or supply to another person a controlled plant or a controlled plant product.
Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years.
Trafficking controlled substances (Section 27AA) –
A person must not prepare, transport, guard or conceal, possess or import into Tasmania a “trafficable” quantity of a controlled substance. (For “trafficable quantity see Section 3A)
Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years.
.
- Unlawful importation of controlled substance (Section 27A) –
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.
- Unlawful Conduct in relation to prescriptions (Section 28) –
A person must not forge a prescription, possess a prescription knowing it to have been forged or unlawfully altered, utter a prescription knowing it to have been forged or unlawfully altered or obtain a prescription by means of conduct that the person knows to be false, misleading or deceptive or without lawful excuse, possess a blank prescription form.
.Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years
- Drug Driving – the relevant legislation is the Road Safety (Alcohol and Drugs) Act 1970:
OFFENCES:
- Driving while under the influence of alcohol, drugs (Section 4) –
A person who drives a vehicle while under the influence of alcohol or drugs to the extent that he or she is incapable of having proper control of the vehicle is guilty of an offence.
- Driving with prescribed illicit drug in blood (Section 6A) –
A person who drives a motor vehicle while a prescribed illicit drug is present in his or her blood is guilty of an offence unless the illicit drug was obtained and administered in accordance with the Poisons Act 1971 .
NB There is a push in Tasmania at present to question the drug driving laws – see https://www.examiner.com.au/story/6797551/unfair-drug-driving-laws-about-prohibition-not-road-safety/
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Federal Drug Laws
Prosecuting drug importation offences are a major part of the work of federal drug enforcement agencies and attract some of the highest penalties imposed by courts.
Key legislation
- s.307.1(1) Criminal Code—importing commercial quantities of border controlled drugs or plants
- s.307.11(1) Criminal Code—importing commercial quantities of border controlled precursors.
Penalties
The maximum penalties for importing/exporting border controlled drug offences are:
- Life imprisonment for s.307.1 Criminal Code—importing/exporting commercial quantity of border controlled drugs/plants
- 25 years’ imprisonment for s.307.2 Criminal Code—importing/exporting marketable quantity of border controlled drugs/plants
- 10 years’ imprisonment for s.307.3 Criminal Code—importing/exporting border controlled drugs.
The maximum penalties for importing/exporting border controlled precursors are:
- 25 years’ for imprisonment s.307.11 Criminal Code—importing/exporting commercial quantity of border controlled precursors
- 15 years’ imprisonment for s.307.12 Criminal Code—importing/exporting marketable quantity of border controlled precursors
- 7 years’ imprisonment for s.307.13 Criminal Code – importing/exporting border controlled precursors.
The CDPP works with the Australian Federal Police and the Australian Border Force on these federal offences.
While drug importation offences tend to dominate the serious drug practice of the Commonwealth Director of Public Prosecutions (CDPP) trafficking offences are also prevalent. A person traffics in a controlled drug if they:
- sell it
- prepare it with the intention of selling it, or believing another person intends to sell it
- transport it with the intention of selling it, or believing another person intends to sell it
- guard or conceal it with the intention of selling it, or assisting another person to sell any of it
- possess it with the intention of selling it.
From time to time trafficking offences are also prosecuted CDPP under the relevant State legislation, depending on the case.
Pre-trafficking
Pre-trafficking includes selling, manufacturing, or possessing a precursor and must be accompanied by specified fault elements relating to manufacture and sale.
The federal Criminal Code contains offences for pre-trafficking controlled precursors, however these offences have rarely been prosecuted.
Commercial cultivation
Cultivation includes:
- planting
- transplanting
- nurturing, growing or tending
- guarding or concealing
- harvesting, picking or gathering resin from a plant.
A person cultivates a controlled plant if they engage in cultivation, exercise control or direction over the cultivation of the plant/s or provide finance for cultivation.
Cultivation will be regarded as being commercial if it is done with the intention of selling the plant or its products or believing that another person intends to do so.
The Code criminalises the commercial cultivation and sale of controlled plants; the CDPP does not prosecute many of these offences.
Key legislation
- s.302.2(1) Criminal Code—trafficking commercial quantities of controlled drugs
- s.303.6(1) Criminal Code—cultivating controlled plants
- s.304.1 Criminal Code—selling commercial quantities of controlled plants.
Penalties
The maximum penalties for trafficking offences are:
- life imprisonment for trafficking commercial quantity of controlled drugs (s.302.2 Criminal Code)
- 25 years’ imprisonment for trafficking marketable quantity of controlled drugs (s.302.3 Criminal Code)
- 10 years’ imprisonment for trafficking controlled drugs (s.302.4 Criminal Code).
The maximum penalties for cultivation of controlled plants are:
- life imprisonment for cultivating commercial quantity of controlled plants (s.303.4 Criminal Code)
- 25 years’ imprisonment for cultivating marketable quantity of controlled plants (s.303.5 Criminal Code)
- 10 years’ imprisonment for cultivating controlled plants (s.303.6 Criminal Code).
The maximum penalties for selling controlled plants are:
- life imprisonment for selling commercial quantity of controlled plants (s.304.1 Criminal Code)
- 25 years’ imprisonment for selling marketable quantity of controlled plants (s.304.2 Criminal Code)
- 10 years’ imprisonment for selling controlled plants (s.304.3 Criminal Code).
