Which drugs are illegal?
In the Australian Capital Territory illegal drugs are called drugs of dependence or controlled drugs or prohibited substances. Illegal plants are called controlled plants.
The definition of “drug of dependence” and “controlled drugs” extends to include substances which are chemical analogues of, or chemically related to, listed drugs of dependence or prohibited substances.
This may mean that new synthetic type drugs which are chemically derived from, or related to, a drug of dependence or prohibited substance or controlled drug will also be illegal even if it is not specifically listed in the schedules.
|Drugs of Dependence (‘Controlled Medicines’)||Controlled Drugs (‘Prohibited Substances’)||Controlled Plants|
Knowledge of the particular drug
For offences involving drugs of dependence or controlled drugs or plants in the ACT the police have to prove that you knew, or should have known, that the drugs or plants were illegal drugs or plants.
They don’t need to prove you knew which particular drug or plant you had in your possession. This means, for example that you can be charged with trafficking in speed, even if you thought you only had a legal synthetic substance.
If you try to pass off a substance or plant as a drug of dependence or controlled drug or plant, for the purpose of supply, you can still face the same penalties as if it were a drug of dependence or controlled drug. This means, for example, that you can be charged with suppling cocaine, even if you are trying to rip someone off by suppling icing sugar.
Mixtures of drugs and trafficking
A mixture of substances which contains an amount of a drug of dependence or controlled drug will be regarded as an illegal drug. This means that if you sell cocaine cut up with washing powder you can still be charged.
Rules for determining total quantities of different drugs or mixtures of drugs for the purpose of determining which offence you will be charged with, which Court your case will be heard in, and what penalty you face on conviction, are very complicated.
In April 2014 the ACT moved from a pure weight system of calculating threshold quantities for trafficking offences to a mixed weight system. Previously the ACT would be required to analyse all drug samples (e.g., pill, tablet, cap, point, joint, mixture) seized from a person charged with a drug offence to assess the purity of the drug.
Now, ACT police and prosecutors take the total weight of the seized drug sample (e.g., pills, tablets, caps, points, joints, mixtures or preparations) to be the total quantity of drug of the dependence or controlled drug when charging you.
The purity of the drugs is not relevant when determining what quantity of drug you possess and therefore what charge you face in court (e.g., possession for personal use or trafficking).
This means that it doesn’t matter how pure your drugs or drug mixtures are. The prosecution only has to show that the weight of the pills, tablets, caps, points, joints, or other mixture is greater than the traffickable quantity for you to be charged with trafficking.
Aggregated quantities of drugs and trafficking
In the ACT amounts of different drugs can be also added (aggregated) together so that you can face higher penalties for drug offences even if you possess, supply, traffic or manufacture small quantities of a lot of different drugs.
The law specifies that where the required fraction of each drug you are found with, adds up to a whole number greater than 1, you will be charged with an offence based on a higher aggregated quantity. For example, if you are charged with trafficking a number of different drugs, the prosecution will calculate the ‘required fractions’ of the quantity of each pure drug by dividing the amount of the pure drug you traffic with the smallest specified ‘trafficable’ or ‘commercial’ or ‘large commercial’ quantity.
For example if you possess 1g of heroin and the trafficable quantity is 2g the prosecution will divide 1 by 2 to give a fraction of ½. If you are also found in possession 1.5g of ice where the trafficable quantity is 2g the prosecution will divide 1.5 by 2 to give a fraction of ¾. The prosecution would then add ½ plus ¾ to give 1¼ which is greater than 1. So you would be charged with a single offence of trafficking a trafficable quantity of a controlled drug, even though separately the quantities were each less than the trafficable quantity.
Does the harm of the drug matter?
No. The perceived harm potential of a drug is NOT relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic). A court might take your motives and aggravating circumstances (see ‘Aggravating circumstances’ section below) into account when sentencing you for an offence, but certain drugs of dependence or controlled drugs should not be treated as more or less harmful than others.
For example, if you possess 5g of heroin, and your friend possesses 5g of cocaine in the same circumstances, you should both be subject to the same charge of trafficking and receive a similar penalty. You should not be punished more severely for possessing drugs like heroin or ice, which are considered to be ‘really harmful’, ‘more evil’ or ‘harder drugs’ than for ‘party drugs’ like cocaine or ecstasy.
You should not be punished more severely for some drugs than for others based only on a ‘scale’ of the perceived harm of different drugs.
General charges for being involved in a drug offence
Generally, if you help or assist someone else to plan or carry out a drug offence, you are also committing an offence by being involved. You can be charged with:
- taking part in an offence if you are involved in the offence, even if you don’t make any profit from the offence (e.g., you pack or transport or manufacture or cultivate an illegal drug or plant; or provide finance or direction for the offence);
- being an accessory to an offence if you are involved in the offence without directly handling or dealing with the drugs (e.g., by being a guard or security or a look out for a drug deal);
- aiding and abetting or inciting an offence if you encourage or induce or provide incentives for a person to commit a drug offence (e.g., tell someone they can use your shed to grow cannabis in); or
- conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.
Generally police will not charge you with additional charges such as being an accessory to supply if you are a user and arrange to score off a dealer for your own personal use. However you can still be charged with possession or trafficking depending on how much you buy and where you buy it.
Possession of a drug of dependence or a prohibited substance is an offence unless the drug has been lawfully prescribed.
There are three elements relevant to proving possession: knowledge, custody and control:
- Knowledge means that you must know that the substance is a drug and that it is in your custody;
- Custody usually means having the drugs in your physical possession (for example, in your pocket or wallet or under you pillow). However, custody can also extend to include such places as your house or car;
- Control means that you have the right to do something with the drugs (for example, keep or use them).
Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your pocket or in your room, the Court will infer you knew what it was.
Knowledge can be based on personal observation or information from another person. In other circumstances it does not have to be firm or absolutely certain. In some cases, awareness that something is highly likely to be a drug, or proof that there was a real and significant chance that a substance was a drug is enough to demonstrate knowledge.
There will be circumstances where, if you don’t admit to owning the drugs or knowing about them, possession will be difficult to prove to the court as required by the law.
Do not admit to possessing drugs without speaking to a lawyer!
Custody and joint possession
Generally, if you live in a shared house and get caught with drugs in a common area like the kitchen or lounge room, it may be difficult for police to establish exactly who owned and had custody or control of the drugs, unless people make admissions.
The police must prove more than the fact that you knew drugs were there and that you didn’t report the drugs or object to them being there. Therefore if you share a house and the police find drugs in non-private parts of the house (say, the kitchen, lounge room or bathroom), it can be difficult to establish who has the sole custody or control of the drugs.
However it is not impossible for police to prove that possession was jointly held. Possession can be shared between people if there was agreement between them, (for example, say you and your flatmates have a stash that you all have access to). Shared, or joint, possession is generally hard to prove if no one admits to owning the drugs.
Possession without physical custody
In some circumstances it may be possible to find you in possession of a drug even if it was not physically in your custody. For example if you know you have a package of drugs waiting for you in the post office which only you can pick up that will be enough to establish possession because you are the only person who can obtain the drugs.
If you have drugs in a bag or coat pocket which you check into a cloak room outside a club, you can still be found to be in possession, because you would be the only person with knowledge of the drug and the ability to control it when you retrieved your bag or coat. A conviction in these circumstances is possible, but it would be difficult for the prosecution to rule out the possibility that someone else had planted drugs there.
Similarly, if police find drugs under the tarp in your ute tray, or locked in the boot of your car, but you don’t have the keys with you at that time, police may not be able to show that you had custody and control.
You can be charged with possession if you hid a drug somewhere and forgot about it. The police do not have to prove you knew exactly where the drugs were for them to be found in your possession.
If you are proved to have hidden or concealed a drug so well that no one else could find it and exercise control over it that will be enough to show you had knowledge, custody and control, even though you weren’t in physical possession when the drugs were found.
Control may be proved if there is evidence that a person had done or intended to do something with a drug. If someone leaves drugs on your balcony or in your car and police see you throwing the drugs away this might be enough evidence that you exercised control over the drugs.
However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.
Possession can be found even if it is momentary or temporary. If you get passed a joint from someone you can be found to be in possession of the joint.
If you are looking after drugs for someone else, you can still be found guilty of possession, because the drugs are in your custody and control. However, if you can prove that the possession was temporary and that you intended to return the drugs to their actual owner, you might not be convicted of possession. This is known as the ‘Carey defence’.
For more serious offences “possession” of a drug may also mean
- receiving or obtaining possession of the drug;
- having control over what is done with the drug (whether or not you have custody of the drug);
- having joint possession of the drug with another individual.
Possessing a drug of dependence, controlled drug or prohibited substance without authorisation or prescription is an offence.
Maximum penalty: $7000 and/or 2 years imprisonment.
If you are caught in possession of less than 50 grams of cannabis, the maximum penalty is $100.
Use and administration
If you self-administer (use) or administer to someone else a drug of dependence, controlled drug or prohibited substance without authorisation you are committing an offence. It is illegal to inject another person even if they have asked you to or given you consent.
It is also an offence to administer drugs which you have obtained lawfully, such as prescription drugs like codeine, Valium (diazepam), Dexamphetamine, benzodiazepines, buprenorphine, and methadone without following the doctor’s or pharmacist’s directions for use. This means that it is illegal to inject methadone, because prescriptions for methadone are based on an oral dose.
Maximum penalty: $14,000 and/or imprisonment for 1 year.
Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs). Remember that any statements you make to police form part of the evidence that can be used against you. No conversation with police is ‘off the record’. For more information on your legal rights see the section on general legal information.
If, for example, you meet police on your way home after smoking a joint in the park and they ask you if you have been smoking don’t admit to it. This would give police the reasonable suspicion that you are in possession they need to search you. If they find some cannabis on you that might give them grounds to get a warrant to search your house. Admitting that you have used drugs recently can quickly lead to more serious drug charges.
Do not admit to using drugs without speaking to a lawyer!
If you administer a prohibited drug to another person who subsequently dies from an overdose (‘OD’) you could be charged with manslaughter. Nevertheless if you are using with someone who overdoses you should call an ambulance. Police have guidelines about overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.
Police will not normally attend an overdose unless:
- they are requested to do so by ambulance paramedics or medical personnel (because ambulance officers cannot control people present at the scene or due to a threat of violence);
- a death has occurred or there are suspicious circumstances (like attempted murder); or
- they were the first on the scene or the OD occurred in a public place.
Police guidelines direct police who do attend an overdose to use their discretion not to charge people at the scene or the person who overdoses with administration or other minor drug offences such as possession.
Sale / supply
It is illegal to sell or supply a drug of dependence or a prohibited (controlled) substance or plant without lawful authority. It is also illegal to possess a drug of dependence or a prohibited substance for the purpose of selling or supplying it to another person.
Because sharing a deal or helping someone score is part of drug-using culture, many users act as suppliers from time to time.
It is an offence to supply a prohibited drug without lawful authority. Supply has a very broad definition and you could be guilty of an offence even if no drugs or money change hands.
Supply can include:
- offering or agreeing to supply, even if no deal ever takes place;
- being knowingly concerned in supply, for example, introducing someone to a dealer;
- supplying a legal substance that you claim is a prohibited drug, for example, selling aspirin and passing it off as heroin;
- pooling money and splitting up purchased drugs between the group of buyer;
- having drugs in your possession for the purpose of supply.
If you are caught with drugs in your possession, police are more likely to charge you with supply if they find things like scales, deal bags, and cash.
A charge of supply can even rest on an offer to score on another person’s behalf. It doesn’t matter whether or not there is any money involved. There are also a number of other charges that can be made in relation to supply, including charges relating to participating in supply and conspiracy to supply (however you cannot be convicted of conspiracy if you are only buying).
If a person is found in possession of a trafficable quantity of drugs, an intention to traffic will be presumed. In this case the court will automatically believe that you intended to sell the drugin the absence of proof that you didn’t intend to traffic the drug, which may be hard to provide. This is called deemed trafficking.
Sale or supply or intention to sell or supply a drug of dependence or prohibited substance is an offence.
Maximum penalty: $70,000 and /or imprisonment for 5 years.
Trafficking is the offence of selling larger amounts of a drug of dependence or controlled substances or plants. Trafficking has a wide meaning in the ACT.
You can be charged with trafficking in a controlled drug if you –
- sell the drug,
- prepare or pack the drug for sale or for someone else to sell,
- intentionally transport or deliver the drug,
- guard or hide the drug with the intention of selling it,
- possesses the drug with the intention of selling any of it.
In April 2014 the traffickable, commercial and large commercial quantities of all drugs of dependence, controlled drugs and controlled plants were changed. The ACT also moved to a mixed weight system of calculating drug quantities. This means that the trafficking quantities were increased for some common drugs (ecstasy & cocaine) but were reduced for other common drugs (heroin and meth-amphetamine).
This means that you may be more likely to be charged with trafficking in heroin or meth-amphetamine, even if you have possession of those drugs for personal use.
|Drug||Previous ACT trafficable quantity (pure grams)||Previous ACT trafficable quantity (converted to mixed grams)||Proposed ACT trafficable quantity (mixed grams)|
|Heroin||2 grams||8.1 grams||5 grams|
|Meth-amphetamine (ice)||2 grams||20 grams||6 grams|
|Cocaine||2 grams||3.3 grams||6 grams|
|MDMA (ecstasy)||0.5 grams||3.3 grams||10 grams|
|Cannabis||300 grams (mixed)||300 grams (mixed)||300 grams (mixed)|
Trafficking of a certain amount of a drug or controlled plant doesn’t have to occur all at once. You can be charged with trafficking a greater amount than you actually did, if it is proved that you trafficked the controlled drug or plant more than one time, or repeatedly.
If you traffic in more than one controlled drug or plant, there are rules that will allow the police to count the different quantities to make up a combined total. This means that if you traffic two small quantities of different drugs, they can be counted as one larger amount, which means you might face higher penalties.
The law specifies that where the required fraction of each drug you are found with, adds up to a whole number greater than 1, you will be charged with an offence based on a higher aggregated quantity. The prosecution will calculate the ‘required fractions’ of the quantity of each pure drug a person traffics by dividing the amount of the pure drug you traffic with the smallest specified ‘trafficable’ or ‘commercial’ or ‘large commercial’ quantity.
For example if you traffic 1g of heroin and the trafficable quantity is 2g the prosecution will divide 1 by 2 to give a fraction of ½. If you are also found trafficking 1.5g of ice where the trafficable quantity is 2g the prosecution will divide 1.5 by 2 to give a fraction of ¾. The prosecution would then add ½ plus ¾ to give 1¼ which is greater than 1. So you would be charged with a single offence of trafficking a trafficable quantity of a controlled drug, even though separately the quantities were less than the trafficable quantity.
The perceived harm potential of a drug is not relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic) but may be taken into account when you are being sentenced.
Proof that a person has prepared (for example by packing or dividing up into doses) a trafficable quantity of a controlled drug for supply, transported, guarded or concealed, or possessed gives rise to a presumption that there was intention or understanding that the drug was to be sold. This presumption can be disproven by evidence.
Trafficking in a large commercial quantity of a drug of dependence or controlled drug:
Maximum penalty: imprisonment for life.
Trafficking in a commercial quantity of a drug of dependence or controlled drug:
Maximum penalty: $350,000 and/or imprisonment for 25 years.
Trafficking in a trafficable quantity of cannabis or trafficking in less than a trafficable quantity of a drug of dependence, or a controlled drug other than cannabis:
Maximum penalty: $140,000 and/or imprisonment for 10 years.
Trafficking in less than a trafficable quantity of cannabis:
Maximum penalty: $42,000 and or imprisonment for 3 years.
|Trafficking||Trafficable mixed quantity (grams)||Commercial mixed quantity (grams)||Large commercial mixed quantity (grams)|
|Drug||Maximum penalty: $140,000/ 10 years||Maximum penalty: $350,000 /25 years||Maximum penalty: Life|
|Cannabis Plants||10 plants||100 plants||1000 plants|
|Psylocibin (Magic Mushrooms)||2g||1000g||2000g|
Receiving property or proceeds from supply/trafficking of dangerous drugs
In the ACT it is illegal to knowingly have possession or receive property or proceeds which have come from the unlawful supply or trafficking of dangerous drugs. This means that if you keep money or goods given to you that you know come from selling drugs you are committing an offence. The property can be anything from money, to cars, to personal items, to houses, even if those goods have been exchanged or changed hands by a process of ‘money laundering’. The reason that you have possession is not relevant.
Receiving property or proceeds from unlawful supply or trafficking of dangerous drugs is an offence.
Maximum penalty: $280,000 and/or 20 years imprisonment.
Manufacturing is any process by which a substance is produced and includes the process of extracting or refining a substance or transforming it into a different substance.
You can be charged with manufacturing a substance even if you only plan or direct the manufacture or provide money for someone else to manufacture the substance.
Even the possession of instructions for manufacturing a controlled drug is a serious offence if police can prove that you or an associate intended to use the instructions to manufacture drugs for sale.
The penalties for manufacturing controlled drugs are higher if it is proved that you made the drugs to sell. If you make over a certain amount, the court will automatically think that you intended to sell them, unless you can prove that they were only for personal use.
Manufacturing a large commercial quantity of a drug of dependence or controlled drug for sale:
Maximum penalty: imprisonment for life.
Manufacturing a commercial quantity of a drug of dependence or controlled drug for sale:
Maximum penalty: $350,000 and/or imprisonment for 25 years.
Manufacturing less than a commercial quantity of a drug of dependence or controlled drug for sale:
Maximum penalty: $210,000 and/or imprisonment for 15 years.
|Manufacture||Trafficable quantity( grams)||Commercial quantity (grams)||Large commercial quantity (grams)|
|Drug||Maximum penalty: $140,000/ 15 years||Maximum penalty: $350,000 /25 years||Maximum penalty: Life|
|Cannabis Plants||10 plants||100 plants||1000 plants|
|Psylocibin (Magic Mushrooms)||2g||1000g||2000g|
Cultivating a controlled plant has a wide meaning. Cultivating means any act of:
- planting a seedling or a cutting of a plant; or
- nurturing and growing the plant; or
- protecting or hiding the plant; or
- harvesting the plant by picking any part of it; or
- extracting oil or resin or seeds from the plant, even after it is dead.
Other actions like watering the plant or fertilising it will likely be considered cultivation.
You can be charged with cultivating a plant even if you only plan or direct the cultivation or provide money for someone else to grow or harvest the plant.
The penalties for cultivating plants for personal use are less serious than penalties for cultivating plants for sale. If you cultivate a larger quantity, the court will automatically assume that you intended to sell the plants, meaning you will face higher penalties, unless you can prove that the plants were only for personal use.
Artificial cultivation carries stricter penalties. Artificial cultivation is growing a plant with a hydroponic setup or by using artificial lights or heat to grow the plant.
Cultivating a large commercial quantity of a controlled plant for sale:
Maximum penalty: imprisonment for life.
Cultivating a commercial quantity of a controlled plant for sale:
Maximum penalty: $350,000 and/or imprisonment for 25 years.
Cultivating a trafficable quantity of cannabis plants for sale:
Maximum penalty: $140,000 and/or imprisonment for 10 years.
Cultivating less than a trafficable quantity of a controlled plant (other than a cannabis plant) for sale:
Maximum penalty: $140,000 and/or imprisonment for 10 years.
Cultivating less than a trafficable quantity of cannabis plants for sale:
Maximum penalty: $42,000 and/orimprisonment for 3 years.
Cultivating a controlled plant other than a cannabis plant for personal use:
Maximum penalty: $28,000 and/or imprisonment for 2 years.
Cultivating 3 or more cannabis plants, or artificially cultivating 1 or 2 cannabis plants for personal use:
Maximum penalty: $28,000 and/or imprisonment for 2 years.
There is also an offence of supplying any quantity of plant material (like seeds or spores), equipment or instructions for cultivating a controlled plant where the person you supply intends to use the material, equipment, or instructions for cultivating and selling the controlled plant.
Maximum penalty: $98,000 and/or imprisonment for 7 years.
It is an offence to possess plant material (like seeds or spores), equipment or instructions for cultivating a controlled plant for personal use.
Maximum penalty: $70,000 and/or imprisonment for 5 years.
|Cultivation||Trafficable quantity||Commercialquantity||Large commercial quantity|
|Plant||Maximum Penalty: $140,000/ 10 years||Maximum Penalty: $350,000 /25 years||Maximum Penalty: Life|
|Cannabis Plants||10 plants||100 plants||1000 plants|
|Opium poppies||500 plants|
There are no specific limits for other plants, where the seriousness of the penalty may instead be calculated by reference to the drugs that can be extracted from the raw plant material.
For example, when determining if a quantity of magic mushrooms is a trafficable amount the police would refer to the amount of the drug psylocibin which could be extracted from the plant matter and then compare that amount with the penalties set out in the chart for manufacture of prohibited substances above.
Drug offences involving children
Being involved with drugs around children is a much more serious crime and will lead to much higher penalties. The child will never be blamed or held responsible for being involved with drugs or controlled plants.
Supplying a controlled drug to a child where the child intends to sell the drug is an offence with penalties up to life imprisonment depending on the circumstances.
Getting a child to sell, pack, prepare, transport or guard drugs, is an offence with penalties up to life imprisonment depending on the circumstances.
Selling a drug to a child for that child to use is an offence.
Maximum penalty: $ 280,000 and/or imprisonment for 20 years.
Simple cannabis offences
A simple cannabis offence is personal possession of less than 50 grams of cannabis; using cannabis or cultivating 1 or 2 cannabis (non-hydro) plants.
If you are caught with less than 50 grams of cannabis a police officer may issue you with a simple cannabis offence notice which is a $100 fine.
Provided the fine is paid within 60 days, no further criminal consequences will attach to the matter. The offence will not appear on your criminal record for the purposes of employment.
You don’t have a right to receive an offence notice and police will usually only issue one to a first-time offender, who must admit to possession or use of the illegal drug. This means it is sensible to be polite to police officers if you are caught with less than 50 grams of cannabis, so that they are more likely to give you a fine rather than take you to court.
Cultivating 1 or 2 cannabis plants for personal use, has also been decriminalised and carries a penalty of $100. However this does not include plants grown using hydroponic setups or artificial lights or heat.
Difference between decriminalisation and legalisation
Despite what you may have heard, cannabis is still illegal in the ACT.
Cannabis has only been decriminalised which means that, while it is still illegal, you may face smaller penalties and no criminal conviction if you are caught with a small amount of cannabis.
This approach is similar to how police treat speeding in a vehicle. It is illegal to drive over the speed limit, but if you are only a little bit over the speed limit you can be fined instead of taken to court. However, if you are caught driving much faster than the speed limit you will still face court and high penalties, including jail time.
Synthetics, legal highs, and new and emerging drugs
What are synthetics?
Synthetic drugs are newly developed substances that are designed to mimic or re-produce the effects of illegal drugs and plants. Many well known drugs are also synthetic (which means that the drug is manufactured from chemicals rather than extracted from plants), but the term synthetic drugs has come to mean newly emerging drugs or ‘designer’ drugs which have come onto the streets but which are not well known or well tested.
Synthetics are often marketed as ‘legal highs’, ‘designer drugs’, ‘herbal highs’, ‘party pills’, or ‘social tonics’, but often they may not be legal, and may not be safe or tested for human consumption. Often packaging will state that they are ‘bath salts’, ‘research chemicals’ or ‘plant food’.
Synthetics can have very serious health consequences, because even if you have taken them before, the chemical formula may change from batch to batch and within a batch. If you do overdose or have a bad trip ambulance paramedics or medical practitioners may not know exactly what you have taken or how to treat you.
There are synthetics which mimic the effects of MDMA, LSD and cannabis as well as many others, but these can be much more potent than the drugs they are imitating. Synthetics can come as pills, powders or dried herbs.
In recent years police and government have tried to control synthetics because of concerns that they produce the same effects and highs as illegal drugs but can be easily bought from alternative tobacconists, tattoo parlours and adult shops.
Synthetics are also produced and released by manufacturers quickly, without all possible side effects being known or tested. This means that synthetics may be more risky, legally and from a health perspective, than well known illegal drugs because you won’t know what you’re getting.
New laws governing synthetics (outlined below) mean that many synthetic substances marketed as ‘legal highs’ are now actually illegal and can attract the same or similar penalties as the drugs they mimic. It is very hard for the average person to tell which chemicals are in a synthetic substance, which means you might be breaking the law without realising.
|Cannabis type synthetics||Hallucinogenic|
Are synthetics legal?
In April 2014 44 new synthetic drugs were made illegal as controlled drugs and will now attract more severe penalties, the same as those for well known illegal drugs like cocaine, meth or LSD.
These synthetics were previously illegal to use, possess, sell or supply, but you will now face much higher penalties for use, possession, selling, supplying, trafficking and manufacture of these substances.
In the ACT there is a separate law which includes a provision automatically importing the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) formerly known as the Australian Poisons Standard. The standard is a list of substances that the Australian Government has restricted or made illegal for sale or use without authorisation. This means that synthetics can be quickly added to the Poisons Standard by the Australian Government and then become illegal to possess, use, supply or manufacture in the ACT.
This law sets out criminal offences for the supply, sale and possession of prohibited substances. All the well-known illegal drugs are also listed as prohibited substances.
In addition the law also operates to extend the definition of prohibited substance to include any synthetic, salt or derivative which has a substantially similar chemical effect or structure to a drug of dependence or prohibited substance.
Synthetics are legally risky because the Australian Government can make them illegal almost overnight. What might have been legal yesterday may actually be illegal today.
Most synthetic drugs which have been on the streets for the last year or two will now be illegal, because the Australian Government and other state and territory governments have recently cracked down on them after a number of incidents where people have died after taking synthetic drugs.
Other Australian Government laws can temporarily ban the sale or display of substances, without making them illegal.
If you sell, supply or manufacture any substance which has substantially the same chemical effect as a substance listed in schedule 8 (controlled drugs) or schedule 9 (prohibited substances) of the Standard for the Uniform Scheduling (SUSMP) of Medicines and Poisonswithout authorisation you are committing an offence.
Maximum penalty: $70,000 and/or imprisonment for 5 years.
If you possess or obtain a substance which has substantially the same chemical effect as a substance listed in schedule 8 (controlled drugs) or schedule 9 (prohibited substances) of the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP)without authorisation you are committing an offence.
Maximum penalty: $28,000 and/or imprisonment for 2 years.
If you self-administer (use) or administer to someone else a substance which has substantially the same chemical effect as a substance listed in schedule 8 (controlled drugs) or schedule 9 (prohibited substances) of the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) without authorisation you are committing an offence.
Maximum penalty: $14,000 and/or imprisonment for 1 year.
Searching and drug detection
General search powers
A police officer may search you, your clothing or property which you have on you and may seize any thing they find, without a warrant, if the police officer has reasonable grounds to suspect that you are in possession of a drug of dependence or prohibited substance, or plant, or if have possession of anything connected to an offence.
Police can only search you or your property if:
- they suspect on reasonable grounds that you have a drug in your possession, and that because the circumstances are serious and urgent, if they don’t search you immediately it is likely that you might try to dispose of, hide or conceal the drugs, other objects or evidence connected to an offence;
- they suspect on reasonable grounds that you have possession of things related to an offence, like a weapon or stolen goods on your body or in your possession, and that because the circumstances are serious and urgent, if they don’t search you immediately it is likely that you might try dispose of, hide or conceal objects or evidence connected to an offence;
- you consent or agree to the search;
- you are arrested or taken into custody by the police;
- the police have a warrant or court order to search you.
What is a reasonable suspicion?
Reasonable suspicion is a complicated legal concept, and whether police were correct to believe they had a reasonable suspicion is a matter for the court to decide.
The issue is not whether the police officer was correct or right to hold a suspicion leading to a search, but whether the suspicion was reasonably supported by fact.
A reasonable suspicion is an honestly held suspicion or opinion that is based on more than a mere possibility or hunch, but which can be less firm or less supported by evidence than reasonable belief.
This is what the court will consider when determining whether the police suspicion to search you was reasonable.
For example if you are in a place known to be used for dealing drugs, and are known to police as a user and police see you meet another person for a few minutes in an alleyway this might be enough to establish a reasonable suspicion.
The fact that you are a user alone might not be enough to form a reasonable basis for a suspicion that you are in possession of drugs. Police will consider your behaviour, the time of day and location.
If police ask you to roll up your sleeves and see track marks that would not be a sufficient reason to search you. You have a right to refuse police to show them your arms if they haven’t told you what offence they suspect you of committing. Police must have more evidence than the fact that you have used drugs in the past.
If the suspicion is proved to be unreasonable in court then the search might be considered to be illegal and any evidence of drug offences such as drugs, large amounts of cash, fits or paraphernalia might not be allowed to prove your guilt.
The court will examine what facts were the basis of the suspicion, and the source of those facts in the light of the whole of the surrounding circumstances.
It is important to remember that even if the search was illegal or the evidence illegally obtained, the court can still allow the evidence to be used, if it is in the public interest, or if the “desirability of admitting the evidence outweighs the undesirability of admitting such evidence”.
When considering the desirability of admitting illegally obtained evidence the court will weigh up several questions including:
- whether the evidence is useful in proving something important or is key evidence in the proceedings;
- the nature of the subject matter of the case and the relevant offence;
- the seriousness of the offence and whether it was deliberate;
- whether the evidence has been used before or is likely to be relied upon in a future case; and
- the difficulty of obtaining the evidence legally or without contravention of an Australian law.
If the improperly obtained evidence is necessary for obtaining a conviction for a serious drugs offence the Court will be more likely than not to exercise its discretion to allow the improperly obtained evidence to be used in the case.
Conduct of searches
General or frisk searches
Police can frisk search you by asking you to remove your jacket and patting you down. If you refuse to be searched the police can arrest you and use force to search you.
Police can strip search you if they suspect on reasonable grounds that such a search is necessary and that the circumstances are urgent and serious. If you are asked to strip so they can search you must follow their directions to remove the articles of clothing that they ask you to take off.
Police are not allowed to strip search you in public, but must make the search as private as the circumstances allow. They are not allowed to touch you during a strip search. A search can only be conducted by an officer of the same sex as you. If you are transgender you can choose the sex of the officer to search you.
Police must respect your privacy and dignity as much as possible while conducting a strip search.
This means that they must ask for your co-operation and tell you which pieces of clothing you need to remove and why.
The search must be conducted in the least invasive manner practicable in all the circumstances. It must be done as privately and quickly as possible.
Police should let you dress as soon as the search is over, and if they take any clothing they should give you some suitable clothing to wear as a replacement.
Police are not normally allowed to conduct forensic procedures (often thought of as internal or cavity searches) without getting a warrant from a Magistrate or obtaining your informed consent, although there are some exceptions where the police wish to undertake less invasive sample taking, such as taking your fingerprints.
Children under 18 or an incapable person who is unable to understand the nature and purpose of the search cannot consent. This means that children and incapable people can only be subject to a forensic procedure under an order from a Magistrate.
Forensic procedures are actually a category of procedures that are normally performed on suspects (such as in sexual assault cases) after arrest.
The procedures can include taking DNA samples, genital swabs or internal searches. Forensic procedures are divided into non-intimate and intimate procedures. The law on forensic procedures is very complicated, but police would not normally need to perform a forensic search on you for a drug offence, unless they believed you had swallowed a bag of drugs for trafficking.
Non-intimate procedures can often be authorised and performed by a police officer who has the rank of a Sergeant or higher. Any intimate forensic procedure must be performed by a medical practitioner.
Intimate forensic procedures include:
searching your cavities, or making detailed external examination of your genitals or anus, scanning your body with an X-ray and taking samples of your pubic hair, anal, external genital or breast swabs, saliva, blood and urine samples, DNA samples, mouth scrapes or dental impressions.
Non-intimate procedures include:
taking samples of hair, fingernail or toenail scrapes, external swabs or washings, and taking fingerprints, hand prints, footprints and toe-prints.
Police must make sure that you give informed consent, which means that you must understand how the search will be carried out, and the consequences of the search. Police cannot ask you to consent if you are under the influence of drugs or alcohol.
Don’t give consent to a forensic procedure without speaking to a lawyer!
Searches of vehicles
Police can also stop your vehicle or search your vehicle without a warrant if they suspect on reasonable grounds, that you have possession of a drug or other item (like paraphernalia, stolen property or weapons) associated with an offence. An example of reasonable grounds to search your car would be if you are stopped at a random breath test and your car smelt of cannabis, or if you are stopped because you ran a red light and police see you put something in the glove box, while they approach your car.
The police must also have reasonable grounds to believe that because the circumstances are serious and urgent, if they don’t search you immediately it is likely that you might try to dispose of, hide or conceal the drugs, other objects or evidence connected to an offence.
A positive oral fluid test that a driver has a prohibited illicit drug in his or her blood is not a sufficient basis for a search of the driver or vehicle. This means that if you are stopped and tested for drugs and test positive, police cannot search you or your car just because you test positive, unless they arrest you and take you into custody.
Searches of private premises
Police cannot normally enter your house without a warrant unless:
- you let them inside, after they knock and ask to come in;
- they have a reasonable belief that there is a breach or disturbance of the peace (such as a fight, domestic violence, house fire, out of control house party);
- they have a reasonable belief that someone is at risk of being seriously injured in the premises;
- the police are pursuing a suspect or escapee.
A reasonable belief must be based on stronger evidence than a reasonable suspicion. For example if police hear yelling and screaming and smashing glass from inside a house, and have already been called by neighbours then they would be able to form a belief that someone was at risk of violence and would be lawfully entitled to enter the house using reasonable force as necessary.
The ACT has no specific drug premises laws.
In the ACT, police use sniffer dogs to carry out both general (‘random’) drug detection and to assist with searches of your person or property.
General drug detection
Occurs where a dog is used to conduct ‘random’ drug detection. In this case if police are conducting general drug detection and the sniffer dog indicates you, by sitting down next to you, this will be enough for police to form a reasonable suspicion that you are holding and they can then search you.
Assisting with searches
Sniffer dogs can be further used to help search you, or your property or vehicle after police have formed a reasonable suspicion that you are in possession of a drug.
Is general drug detection a search?
General ‘random’ sniffer dog drug detection is not considered to be a search. This is because the sniffing is done passively and is not a physical intrusion into a person’s privacy or property. For example, a sniffer dog that wanders past a suitcase with cannabis inside is not searching the suitcase. Police who ask a bus driver to pull over and let them put a dog in the luggage compartment are not conducting a search.
However, if the dog touches you before it sits down, or if the dog stays in contact with you or digs its nose into your pockets or forcefully bumps and nudges into you, this may be considered to be an assault.
If there has been an assault before reasonable suspicion that you possessed drugs was formed in the minds of the police you may be able to challenge in court any evidence (drugs) that the police find on you.
In a NSW case a sniffer dog was bunting and ferreting and nudging a man around his groin before it sat down. In this case the evidence of drugs found after the police searched the man was found to be inadmissible in court and the man’s conviction was overturned.
This means that when the police use sniffer dogs to carry out random general drug detection they must keep the dog under control and must take all reasonable steps to prevent the dog from touching you.
You should try to avoid touching or patting a drug detection dog as this may be considered to be obstructing or hindering police.
Where can police use sniffer dogs?
Sniffer dogs are used in the ACT jail and remand centres, in the airport, and occasionally in the clubs and bars in the city.
If you are approached and sniffed by a dog, don’t panic and run, because this will also give police reasonable grounds to detain you and search you. Don’t try to throw away your cigarettes or any packets because this will give police grounds to form a reasonable suspicion and search you.
Sniffer dogs may not always be accurate, so even if you are not holding any drugs co-operate with the police while they search you. You can ask for their name, rank and station. Ask why you are being searched. If you are asked to give your name, ask if you have to tell them. If they say no, don’t, because those details can be entered into their database. If they say yes, tell them and seek legal advice to make a complaint.
If police do find drugs in your possession you will have to tell them your name and address, but nothing more than that. You have a right to silence. If you do speak to the officer it is always good advice to be polite and calm – if you only have a small amount of drugs they might let you off with a caution. If you swear at the police or resist them you can be arrested and charged with additional offences.
Drug and drink driving
The law imposes strict requirements that drivers are fit to drive whenever they get into the car.
Driving while being under the influence of drugs and alcohol is an offence, regardless of whether the drug was legally prescribed or not. In addition driving while you have a certain concentration of alcohol in your breath or blood (Blood Alcohol Concentration – BAC) or prescribed drugs in your oral fluid, or blood is an offence.
Driving includes attempting to drive a vehicle, or put a vehicle in motion, or being in charge of a vehicle in a road or road related area.
This means you can be charged if you:
- are sitting in the driver’s seat; or
- turn on the headlights; or
- engage the gears; or
- put the keys in the ignition.
All drivers have a general responsibility to report any permanent or long-term illness, injury or incapacity that may impair his or her ability to drive safely. This includes a drug or substance dependency. A driver with an impairment must report as soon as possible within 7 days of becoming aware of the impairment.
It is an offence to fail to report such an illness, injury or incapacity.
Maximum penalty: $2800.
If you have an illness, injury or incapacity you are not automatically banned from driving. Depending on the nature and circumstances of your impairment you could be granted a conditional licence or even an unrestricted licence once you have been assessed by a health practitioner.
For example, if you are stabilised on methadone or buprenorphine for you opioid dependency you may not have a higher risk of a crash, providing the dose has been stabilised over some weeks and you are not abusing other impairing drugs.
Police in the ACT have the power to request to see your driver’s licence and to ask your name, date of birth and addresses if you are stopped while driving.
It is an offence to refuse to provide your licence or to state your name, date of birth and address if requested.
Maximum penalty: $2800.
If you are convicted of drink or drug driving, you will have to undergo a drink and drug driving awareness course before you can get your licence back.
The ACT operates an alcohol interlock scheme. An interlock is a breath testing immobiliser device that is fitted to your car and prevents you from starting the car unless it tests the driver as having no alcohol in his or her breath.
The Court must impose an interlock condition on your licence if you are convicted of a high range drink driving offence (with a BAC of over 0.15) or for repeat drink driving offences. After you have served your disqualification period, the Court will also order that you attend a Court Alcohol and Drug Assessment before issuing you with a probationary interlock driver’s licence. An interlock licence condition means that it is illegal for you to drive a car that has not been fitted with an interlock. You will have to participate in the interlock program for at least 6 months, which may be extended if you do not record a 3 month period of consecutive clean breath tests when using the interlock device.
Other low or medium range drink driving (<0.15 BAC) offenders can voluntarily opt in to the interlock scheme at any point in their original disqualification period, which may enable them to return to driving more quickly.
You will have to pay for the Interlock to be fitted to and removed from your vehicle, plus monthly servicing and rent of the device and the cost of an interlock driver’s license. All up participation in the interlock program can costs around $3500 a year.
For more information on the ACT interlock program see:
Driving under the influence
It is an offence to drive where you are so under the influence of alcohol or any other drug that you are impaired and incapable of being able to properly control your vehicle.
This means that it is illegal to drive on prescription medications such as codeine, Valium, benzodiazepines, buprenorphine and methadone if your ability to drive properly is impaired as a result of your being under the influence.
There is no defence to this charge that you were under the influence of legal prescription medication.
Police can conduct a test of your impairment by drugs or intoxication by alcohol if they have reasonable grounds to believe you are under the influence of drugs. This might involve a preliminary assessment (‘impairment or sobriety‘ test) of physical factors such as your behaviour, balance and coordination. If you look drowsy or are unable to walk straight or keep your eyes focused, or otherwise seem uncoordinated or behaving in a manner that indicates that you may be impaired by alcohol or a drug, you will be required to provide breath, saliva, blood and/or urine samples.
A drug-screening test can test for all drugs by analysing breath, urine or blood samples. While police process the tests and await confirmation, you may be arrested and taken to a police station to be charged and re-tested.
Police will be more likely to make you take a drug impairment assessment if you were involved in an accident or if the police have reasonable grounds to believe that you were driving culpably, dangerously or recklessly.
If you are charged with a driving under the influence offence but were not driving at the time, it may be a defence to a charge if you can show that you did not attempt to start the engine or put the car in motion and that you did not intend to drive or put the car in motion.
Driving while under the influence of intoxicating liquor or of a drug where you are not able to properly control or drive the motor vehicle is an offence.
- for a first offence: $4200 and/or imprisonment for 6 months.
- for a second offence: $4200 and/or imprisonment for 12 months.
It is an offence to ride a bike or horse or other animal under the influence. People have been charged and convicted of riding a bike under the influence in the ACT.
Maximum penalty: $7000 and/or imprisonment for 6 months.
Drugs & driving
It is an offence for a person to drive a motor vehicle on a public street or in a public place if that person has a prohibited drug present in their blood or oral fluid.
Drug testing of motorists on ACT roads has occurred since 2010. Police can also now conduct random roadside drug testing. Any driver or person who is supervising a learner driver can be required to undergo random breath testing and random drug testing.
As well as random breath testing for alcohol, police in the ACT now have the power to carry out roadside drug testing on any driver. This is done by an “oral fluid” test, requiring the driver to lick the test pad of a device. This tests saliva samples for the active ingredient in cannabis (delta-9-tetrahydrocannabinol – THC), speed and ice (methamphetamine), or ecstasy (MDMA).
If a positive sample is detected, you will be required to provide a second sample that will be run through another oral screening device. If a second positive test is found, a sample of your saliva will be taken and sent to a laboratory for confirmation. You will not usually be charged at this stage, although you may be prohibited from driving for 24 hours. It is an offence to refuse to submit to a random breath test or drug test.
The oral fluid test will not detect other prescription drugs such as codeine, valium, benzodiazepines, buprenorphine or methadone. However, ACT Police can test for all drugs by requiring a drug screening test which can involve a blood sample being taken and analysed. Police need no reason to make you take a drug-screening test if you were driving on a public road.
Police will be more likely to make you take a drug test if you were involved in an accident or if the police have reasonable grounds to believe that you were driving culpably, dangerously or recklessly. If the drug-screening test shows that you have prescription drugs in your system you can only be charged if they impaired your driving so that you could not properly control your vehicle.
Driving with a prohibited drug (cannabis, speed or ecstasy) present in your blood or oral fluid is an offence.
- for an offence by a first offender––$1400 fine with mandatory minimum disqualification of 6 months.
- for an offence by a repeat offender–– $3500 fine and/or imprisonment for 3 months with mandatory minimum disqualification of 12 months.
It is an offence for a person to drive a motor vehicle (or ride a bike) on a public street or in a public place if that person has 0.05 grams or more of alcohol in the person’s blood or breath. Special drivers (like learner drivers or those on restricted licences cannot have any alcohol present in their blood or breath.
If you are charged with this offence but were not driving at the time, it may be a defence to a charge if you can show that you did not attempt to start the engine or put the car in motion and that you did not intend to drive or put the car in motion.
The police are required to suspend your licence on the spot if you are caught exceeding your blood alcohol limit by 0.05 (i.e., 0.05 for special drivers and 0.10 for all others). Other licence disqualifications or cancellations occur on conviction. The Court must impose the minimum disqualification. The default disqualification period is what the Court will normally impose unless there are factors that mean that a shorter disqualification period should be imposed.
|Blood Alcohol Concentration (BAC) Level (g/100ml)||First offence||Second or subsequent offence|
|Level 1 0.00g – 0.49g||$700Min disqualification: 1 monthDefault disqualification: 3 months||$1,400Min disqualification: 3 monthsDefault disqualification: 12 months|
|Level 2 0.05g – 0.079g||$700Min disqualification: 2 monthsDefault disqualification: 6 months||$1,400Min disqualification: 3 monthsDefault disqualification: 12 months|
|Level 30.08g – 0.149g||$1400 and/or imprisonment for 6 monthsMin disqualification: 3 monthsDefault disqualification: 12 months||$1400 and/or imprisonment for 6 monthsMin disqualification: 6 monthsDefault disqualification: 3 years|
|Level 4 more than 0.15g||$2100 and/or imprisonment for 9 months Min disqualification: 6 monthsDefault disqualification: 3 years||$2800 and/or imprisonment for 12 monthsMin disqualification: 12 monthsDefault disqualification: 12 months|
Other drink and drug driving offences
There are also offences for refusing to be screened for drugs and for leaving before a test has been completed. The penalties for refusing to be screened may actually be higher than penalties for being caught drug or drink driving.
Maximum penalty: $4200 and/or12 months imprisonment with mandatory minimum disqualification of 6 months.
Paraphernalia, fits (needles & syringes), equipment
It is legal to possess fits and other drug-using equipment in the ACT, but possession of any of these may be used as evidence of illegal drug use. Although it is legal to receive fits from an authorised needle & syringe program (NSP), pharmacy or vending machine, it is illegal to pass them on to someone else.
It is unlikely that police would charge you with possession on the basis of the minute quantities of drugs that are present in used fits.
However, if you make admissions about using (self-administration) or you are found to be holding (possession), the used fit or fits may be used as evidence to support the police story. If you are concerned about used fits and trace elements you can flush them with water immediately after use but the best approach is to dispose of them in a disposal container and return them to a needle & syringe program. It is also important to be aware of what you might be carrying when you go to a needle & syringe program to pick up or return fits.
Possession of paraphernalia
There are no specific paraphernalia laws in the ACT. This means it is legal to possess, sell and display pipes (including ice or crack and hash pipes) and bongs. However, possession of pipes or bongs may be used to support charges of possession or self-administration of illegal drugs.
Equipment commonly used in the supply of drugs such as scales, ziplock baggies, gel capsules are not illegal to possess but may be used as evidence to support charges of supply or trafficking.
It is illegal to be in possession of a tablet (pill) press without a reasonable excuse.
Maximum penalty: $28,000 and/or 2 years imprisonment.
Disposal of fits
It is an offence to store or dispose of clinical or hazardous waste in a manner that is likely to cause injury or disease to a person lawfully dealing with that waste. This includes disposal of fits in household garbage.
Maximum penalty: $14,000 and/or 1 year imprisonment.
It is also an offence to dispose of fits in a public place or in rubbish, where the fit is likely to cause injury to a person or animal, or to damage property.
Maximum penalty: $7,000 and/or 6 months imprisonment.
Sex, health and the law
The legal age of consent for a male or female to have sexual relations with a person of the same or opposite sex is 16 years. A person who has sexual relations with a person under those ages is guilty of an offence.
The maximum penalties for having sex with people under 16 years old range from 10 to 25 years imprisonment, depending on the age of the child and the type of sexual activity involved.
It is legal for people at least 18 years old or over to work in a brothel that is in a prescribed location (in Fyshwick or Mitchell). Clients must be at least 18 years old. Employers are required to take reasonable steps to provide employees with a safe work environment. Employees who suffer injuries at work or in the course of employment may be eligible for compensation in some circumstances.
It is an offence to run a brothel in an area that is not a prescribed location.
Maximum penalty: $14,000 or 12 months imprisonment for an individual.
The operator of a brothel or escort agency must take reasonable steps to ensure that a sex worker does not work if the worker is infected with a sexually transmissible disease. Reasonable precautions are understood to mean that the brothel owner or operator ensures that sex workers on their premises undergo regular STI testing.
It is an offence for a sex worker or client to provide or receive sexual services if they know, or suspect, they have a sexually transmissible disease.
- for an individual owner and/or manager: $14,000 or imprisonment for 12 months.
- for a worker or client: $7000 or imprisonment for 6 months.
Operators of brothels or escort agencies can be fined if they do not ensure that condoms are used at all times for any type of penetrative sex. They can also be fined if they discourage the use of condoms.
Maximum penalty for each owner or operator is a $14000.
Both workers and clients can be fined if condoms are not used during any type of penetrative sexual activity.
Maximum penalty: for a worker or client is a $7000.
Street work is illegal in the ACT. It is illegal to accost any person or solicit or loiter in a public place.
The maximum penalty for loitering or soliciting in a public place for the purposes of street sex work is a $2,800 fine.
If the person accosted is less than 18 years of age the maximum penalty is imprisonment for 3 years.
Home work/escort work
It is legal to work alone from your own home or for an escort service. You must be over 18 and your clients must be over 16. If there are more than two workers on the same premises, the premises are considered to be a brothel, so it will be illegal unless the premises are in a prescribed location.
Maximum penalty: $14,000 or12 months imprisonment for an individual.
Force and duress
Under ACT law it is a serious offence to induce a person to become or remain engaged in the sex industry, or provide or continue to provide payments derived from sex work, in the following circumstances: by way of intimidation, assaults or threats, by supply or offers to supply a drug of dependence, or by way of false representations or other fraud.
Maximum penalty: 6 years imprisonment.
Legal support is generally recommended whenever victims of crime are pursuing remedies, whether these involve applications for compensation or following up to ensure an investigation is occurring. Making a report to police as soon as possible regarding the incident is crucial.
Blood borne viruses (BBVs) & sexually transmitted infections (STIs)
Notification and testing requirements
In the ACT:
- Hepatitis A, B, C, D and E;
- AIDS –
are all notifiable diseases, which means that your doctor, nurse, pathologist or hospital must notify the Government if you are diagnosed with one of these diseases.
It is an offence for the medical practitioner or health officer to fail to notify a diagnosis of a transmissible disease.
- for a doctor or nurse: $700.
- for a pathologist: $700 and/or imprisonment for 6 months.
- for a chief of a hospital: $3500.
You cannot be forced to undergo testing for a notifiable disease, but the Chief Health Officer can make a direction that you undergo a medical examination if he or she believes on reasonable grounds that it is necessary to prevent or alleviate a significant public health hazard (see Public Health Offences section below).
The Government may decide that it is necessary to contact your friends and acquaintances if it becomes apparent that you could have transmitted a disease to them. It is an offence for an infected person to fail to give a health officer details when requested.
Maximum penalty: $700.
All residents of the ACT have a responsibility to report to the health department any ‘public health hazard’ which would include a person who is exposing others to risk of transmission of a notifiable disease. It is an offence to fail to report a public health hazard.
Maximum penalty: $700.
There are rules that specify that your full name must not be provided when notifying for HIV, AIDs, Hepatitis B and C, or STIs and that your privacy is respected.
It is an offence for someone to disclose your disease status, without lawful authorisation.
- for an individual: $7000 and/or imprisonment for 6 months.
- for a corporation: $35,000.
Public health law offences relevant to BBVs and STIs
In the ACT a person who has, or thinks he/she may have, a transmissible notifiable condition, or a person who is a contact of a person with a transmissible notifiable condition, must take reasonable precautions to prevent transmission of the condition.
Reasonable precautions would include using a condom when having sex and avoiding the sharing of injecting equipment. Unsafe disposal of used fits could also be a potential ground for prosecution.
It is an offence to fail to take reasonable precautions to prevent transmission of HIV or Hepatitis or other notifiable transmissible diseases.
Maximum penalty: $1400.
The ACT has developed Guidelines for the Management of People With HIV Infection Who Knowingly Risk Infecting Others. These guidelines set out policies for when health officials must take action to report risky behaviours that expose people to infectious or transmissible diseases.
These guidelines set out principles for managing the risk of infection or transmission of disease in a health framework by establishing processes for counselling and treating people with notifiable transmissible diseases.
There is a possibility that if you have a notifiable disease and you are behaving in a way that endangers public health or puts others at risk of infection you could be given a health direction by the Chief Health Officer:
- preventing you from doing certain activities;
- preventing you being in or working in certain places;
- requiring you to have a medical examination or undergo treatment or health counselling;
- requiring that you are confined or detained in a particular place.
Health orders, especially orders requiring detention or confinement should only be made as a last resort when other attempts to get the person to change or address their risky behaviour have failed.
ACT Health can apply to the Magistrates Court for an order compelling you to follow the health direction.
It is an offence to fail to comply with a court ordered health direction.
Maximum penalty: $14,000.
Nationally all states and territories are supposed to uphold the important principle that the least restrictive measures of control, treatment and monitoring should be applied first when addressing risky behaviour of individuals who have HIV.
However, if you are suspected of intentionally infecting other people with a disease, health officials are instructed to refer your matter to police to pursue criminal charges.
Criminal offences relevant to BBVs and STIs
There have been at least 32 prosecutions for HIV exposure or transmission in Australia. Prosecutions have occurred in nearly every state in Australia. Criminal prosecutions are also becoming more common. If you have a transmissible disease it is your responsibility to take precautions to ensure that you minimise the risk of infecting others.
Intentionally, or recklessly exposing other people to a risk of infection with a disease can be prosecuted as a criminal offence, with serious penalties.
In the ACT you could potentially be charged with causing (intentionally, recklessly, or by negligence) grievous bodily harm if you are responsible for infecting another person with a notifiable transmissible disease such as HIV.
Intentional infection could be proven where you deliberately, knowingly or willingly set out to infect a person.
Recklessness is the failure to take reasonable precautions to prevent the transmission of a notifiable transmissible disease such as HIV, where you knew there was a risk or should have considered the risk that you could infect someone.
Negligent infection could be prosecuted where you accidentally caused someone to become infected.
- for intentional infection: 15-20 years imprisonment.
- for reckless infection: 10-13 years imprisonment.
- for negligent infection: 2 years imprisonment.
- sexual intercourse without consent: 12-14 years imprisonment.
What is discrimination?
Discrimination involves treating someone unfavourably or unfairly because that person has a specific characteristic or attribute.
Discrimination can also include imposing a certain requirement or condition on a person because of a characteristic or attribute where the different treatment is not reasonable.
Grounds for discrimination
The ACT Discrimination Act provides that different treatment based on the grounds of any of the following attributes is unlawful:
- gender identity;
- relationship status;
- status as a parent or carer;
- religious or political conviction;
- industrial activity;
- profession, trade, occupation or calling;
- association (whether as a relative or otherwise) with a person identified by reference to one of the other protected attributes;
- spent conviction (non-serious conviction that no longer has to be disclosed).
In what circumstances can you complain about discrimination?
You can’t complain about discrimination in all areas of life. This is because the Government does not normally regulate private behaviour or relationships between individuals (unless there is threat of violence or other criminal offences involved).
Generally people are free to think and speak what they like about each other. For instance you cannot claim that your family or neighbour discriminates against you because of who you are friends with.
However, discrimination law does prevent discrimination in social or public areas of life, where you might have a reasonable expectation to be treated the same as anyone else, despite the fact that you may be of a different race, or have a different gender identity or are disabled.
In the ACT areas of life where discrimination is unlawful are:
- work and employment related areas– you cannot be fired or sacked, or given harder work, worse conditions or unequal pay only because of your race, age, gender identity, disability, political or religious beliefs etc.
- education – you cannot be refused a place in a school or university course only because of your race, age, gender identity, disability, political or religious beliefs etc.
- goods and services and facilities– you cannot be refused a sale, or service in a restaurant or health care, or access to public transport, or help from the police only because of your race, age, gender identity, disability, political or religious beliefs etc.
- clubs – you cannot be refused membership of a club only because of your race, age, gender identity, disability, political or religious beliefs etc.
- accommodation – you cannot be refused accommodation in a motel or in public housing only because of your race, age, gender identity, disability, political or religious beliefs etc.
- access to premises – you cannot be refused entry to public spaces such as supermarkets, shopping centres, cinemas, pools, restaurants or hospitals, only because of your race, age, gender identity, disability, political or religious beliefs etc.
- access to information – you cannot be denied access to information only because of your race, age, gender identity, disability, political or religious beliefs etc.
It is important to note that there are a number of exceptions to these general rules. If you feel you have been discriminated against seek legal advice or talk to the ACT Human Rights Commission.
ACT discrimination law also prohibits sexual harassment and vilification.
Vilification is action or communication that incites hatred, or severe contempt or ridicule of another person or group of people based on their race, sexuality, or status as a person living with HIV/AIDs.
This means that it is unlawful for a person to publish extremely offensive or hateful comments about LGBTI people or people living with HIV/AIDs.
The meaning of disability discrimination
Being discriminated against on the basis of ‘disability’ includes being discriminated against on the ground that you are infected with a specific disease including Hepatitis C or HIV/AIDS.
It is not clear whether having a ‘drug dependency’ can be considered a ground for discrimination.
Generally drug addiction will not count as a disability. Temporary intoxication from drug use is not a disability.
There have been a number of court cases that have considered that a dependency on methadone or buprenorphine, could in certain circumstances be considered a disability.
In these cases former heroin addicts had been stabilised on methadone or buprenorphine pharmacotherapy and were being subjected to workplace harassment and unfair treatment because of their history of drug use. The courts held that someone who was living a normal, functional life with the help of legally prescribed methadone or buprenorphine could still be suffering from the disability of methadone or buprenorphine dependence, because of the severity and disabling nature of withdrawals if they were not able to maintain their treatment regime.
These cases established that discrimination of people on the basis that they were on a pharmacotherapy program could be disability discrimination and would be unlawful.
HIV and Hepatitis-C related discrimination is also unlawful.
There is also legal protection against discrimination for people with disabilities under the Federal Disability Discrimination Act.
The ACT is also one of only two jurisdictions in Australia that has specific human rights legislation (along with Victoria). The ACT Human Rights Act 2004 provides an explicit statutory basis for respecting, protecting and promoting civil and political rights.
Rights under the Human Rights Act include recognition and equality before the law, the right to life, the right not to be subject to torture and cruel, inhuman or degrading treatment, the right not to be subject to medical treatment or experimentation without consent, the right to privacy and reputation, freedom of expression, thought and movement and the right to a fair trial and rights in criminal proceedings. These rights reflect Australia’s international human rights obligations under the International Covenant on Civil and Political Rights.
How to complain about discrimination
Penalties for discriminatory actions vary, depending which tribunal or court is involved. The Court or tribunal will look at:
what effect the discrimination had on you;
whether the discrimination could have been avoided or lessened if the other person or company had acted differently;
whether the unfair or unjust effects of the discrimination were out of proportion to any purpose of the discriminatory practice.
Not all unfair treatment will be considered to be discrimination.
Complaints about discrimination under the ACT Discrimination Act can be made to the ACT Human Rights Commission.
The Human Rights and Discrimination Commissioner may only investigate complaints that have been made in writing with a signature of consent from the complainant.
The Commission will attempt to investigate your complaint and then conduct a conciliation or negotiation about each side’s story and reasons for their actions. If an agreement does not come out of the negotiation, the complaint will be referred to the ACT Civil and Administrative Tribunal, which has the power to hear and investigate the complaint and then to make legally binging orders.
The Tribunal can order that the complaint be dismisses, or if the complaint is upheld, that compensation or damages are paid, an apology given or an order that the discriminatory behaviour stopped.
The Health Services Commissioner considers complaints about the provision of health services and services for older people, and complaints about contraventions of the privacy principles or of a consumer’s right of access to his or her health records under the ACT Health Records (Privacy and Access) Act.
Complaints under the Federal Disability Discrimination Act can be made to the Australian Human Rights Commission (AHRC). The AHRC can be reached on
1300 369 711 or at http://www.humanrights.gov.au.
The ACT Human Rights Commissioner does not have the power to investigate individual claims of human rights breaches under the ACT Human Rights Act. The focus of the Human Rights Act is about getting things right at a planning and policy stage, rather than conducting individual investigations.
The Commission does have a role however in advising and ensuring the ACT Government anticipates and prevents potential human rights infringements through analysis and review of law and policy.
The Government are also required to take your rights into consideration when they make a decision that affects you. If you feel your rights have not been given due respect seek advice from a lawyer or a community legal centre. It is good thinking to seek legal advice before considering legal proceedings.
For more information on addressing discrimination please refer to AIVL’s Know Your Rights webpage at http://www.aivl.org.au/knowyourrights.
Drugs of Dependence Act 1989 – sets out basic drug offences of possession and supply and simple cannabis notices.
Criminal Code 2002 – This act is part of the main criminal law of the ACT. Chapter 6 sets out the penalties for more serious drug offences like trafficking, manufacture and cultivation, as well as specific offences for ongoing supply.
Medicines, Poisons, Therapeutic Goods Act 2008 – This law also contains offences for the unauthorised possession, supply and sale of controlled medicines and drugs. It also adopts the SUSMP.
Australian Poisons Standard (The Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP)) – is a national law containing 9 Schedules which classify drugs, medicines and poisons according to their potential for harm, abuse, addiction and the need for special controls and regulation of sale and supply. The schedules are updated regularly to make many new synthetic drugs illegal in the states and territories.
Crimes Act 1900 – sets out police investigation powers including search and arrest powers and procedures. Sets out sexual offences and offences against the person – such as recklessly causing grievous bodily harm – which might be used to prosecute a person with HIV who infects another person.
Crimes (Forensic Procedures) Act 2000 – sets out police powers for carrying out forensic procedures.
Public Health Act 1977 – sets out offences of causing or risking serious or material harm to public health. Defines notifiable conditions. Gives powers to authorised offices to take action to control or reduce the threat or spread of a notifiable condition. Gives the Chief Public Health Officer the power to give health directions requiring a person who has a controlled notifiable condition to undergo treatment or counselling or be detained.
Public Health Regulation 2000 – Section 21 mandates that people with a transmissible notifiable condition must take reasonable precautions to prevent the transmission of the disease to other people.
Road Transport (Alcohol and Drugs) Act 1977 – sets out the offences and penalties for drink and drug-driving.
Road Transport (General) Act 1999 – sets out general road law.
Prostitution Act 1992 – sets out the law for sex work in the ACT.
Discrimination Act 1991 – establishes discrimination law in the ACT.
Human Rights Act 2004 – sets out human rights that must be respected and protected by the ACT Government in their treatment of ACT residents.
Human Rights Commission Act 2005 – sets out how to make a complaint under the Discrimination Act.
Drugs of Dependence Regulations 2009– define drug of dependence and prohibited substance by referring to the Criminal Code Regulations below.
Criminal Code Regulations 2005 – these regulations set out schedules of drugs of dependence, prohibited medicines, substances and plants in the ACT.
Medicines, Poisons and Therapeutic Goods Regulation 2008 – Sets out rules for the sale and supply of pharmaceuticals including administration and licensing of opioid pharmacotherapy treatment programs.
Road Transport (Driver Licensing) 2000 – Sets out requirements on drivers to report medical conditions. Sets out requirements for attending alcohol and drug awareness courses.