Commonwealth Users’ Legal Guide

In this guide 1 penalty unit (1 p. u.) is $180

Which drugs are illegal?

At the Commonwealth national level, illegal drugs are called “controlled drugs”. This broad category covers a range of narcotic drugs, border controlled drugs and prohibited substances. Illegal plants are called “controlled plants”.

Controlled drugs (Narcotic drugs, border controlled drugs and prohibited substances) Controlled plants
  • Heroin
  • Cannabis
  • THC cannibinols
  • Cathinone (Mephedrone, MCAT)
  • PCE
  • PCP
  • LSD
  • Ecstasy/MDMA
  • DMT
  • GHB
  • Meth-amphetamine (ice/speed)
  • Mescaline
  • Morphine
  • Methadone
  • Ketamine
  • Amphetamines
  • Cocaine
  • N-BOMes ‘ N-Bombs” (synthetic LSD)
  • Pandora
  • Smiles

This is not the full list of all illegal drugs at the Commonwealth level. The full list contains all drugs listed in Schedule 3 and 4 of the Criminal Code Regulations 2002 under the headings ‘Schedule 3 – Controlled drugs’ and ‘Schedule 4 – Border controlled drugs’.

It also includes all drugs listed in schedule 2 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 under the heading ‘Schedule 2 – Narcotic drugs’.

  • Cannabis
  • Opium poppies
  • Coca plants
  • Lophophora cactus (mescaline/peyote cactus)
  • Psylocibe (magic mushrooms).

This is not the full list of all controlled plants at the Commonwealth level. The full list contains all drugs listed in regulation 5B and 5E of the Criminal Code Regulations 2002 under the headings ‘Regulation 5B – Controlled plants’ and ‘Regulation 5E – Border controlled plants’.

General information

Commonwealth drug laws have been developed by the Australian Government to cover drug offences, which involve bringing into or taking drugs out of Australia. There are a number of Australian laws that make it an offence to import or export border controlled drugs through Australian airports or ports or by any other means. Customs laws give Australian border protection officials powers to search parcels, packages and containers as well as passengers on airline flights. It is not only an offence to import or export drugs but also to have possession of drugs which you know have been imported illegally. It is an offence to provide a person with support or assistance to import or export illegal drugs.

Commonwealth drug laws are separate to those in each of the states and Territories but they work in similar ways and cover similar drugs. The Australian Federal Police and Australian Customs have responsibility for policing Commonwealth drugs laws, but if you are charged with a Commonwealth offence you will be prosecuted in the Supreme Court in the State or Territory in which you were arrested.

Knowledge of the particular drug

Under Commonwealth drug laws the prosecution do not have to prove that you had actual knowledge of the substance was a drug if you were reckless as to whether the substance was a drug.

You will be considered to have been reckless as to whether a substance was a controlled drug if in all the circumstances you should have been aware:

  • that there was a substantial risk that the substance was in fact a controlled drug; and
  • that it was an unjustifiable risk to possess the substance in case it was a drug.

Whether you took an unjustifiable risk is not a matter of your subjective opinion but is determined as a matter of fact. This means the court will look at whether in all the circumstances a reasonable person would have taken the risk of possessing the substance when it might have been a controlled drug.

Mixtures of drugs and trafficking

A mixture of substances which contains an amount of a controlled, border controlled or narcotic drug will be regarded as an illegal drug. This means that if you import cocaine in packages also containing sugar 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.

The Commonwealth uses a pure weight system of calculating threshold quantities for trafficking offences. This means that all drug samples (e.g., pill, tablet, cap, point, joint, mixture) seized from a person charged with a drug offence must be analysed to assess the purity of the drug.

Aggregated quantities of drugs and trafficking

Amounts of different drugs can also be added (aggregated) together so that you can face higher penalties for trafficking offences even if you traffic 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. 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 cocaine 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 0.75g of ketamine where the trafficable quantity is 1g the prosecution will divide 0.75 by 1 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.

In addition, if you mix drugs with legal substances to hide or conceal the illegal drug for importation the total weight of the illegal and the legal substances can be added up to determine which charge you may face.

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 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 being knowingly concerned in an importation offence if it was proved that you knew about the offence and did some act to plan or carry out the offence.

For example if police can prove that you arranged a bribe for Customs officials to let in a shipment of drugs, or organised the importation with a criminal organisation overseas or provided some kind of assistance by picking up and transporting a shipment of drugs you may be convicted of:

  • 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., you tell someone they can use your shed to grow cannabis in);
  • conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.

Possession

It is a Commonwealth offence to possess a controlled drug.

Proving possession

There are three elements required to prove possession: knowledge, custody and control.

  • Knowledge means that you must know that the substance is a drug or is likely to be a drug and that it is in your custody;
  • Custody usually means having the drugs in your physical possession (for example, in a container, luggage package or consignment owned by you). However, custody can also extend to include such places as your house or car; and
  • Control means that you have the right to do something with the drugs (for example, keep or use them). If there are drugs in your house but they do not belong to you and you don’t have any control over them, you are not in possession of them.

Knowledge

Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your luggage, 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!

Control 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

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.

Temporary possession

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’.

If you are charged with a possession offence you will be tried in whichever state or territory the offence occurred in and will be eligible for the same diversionary schemes that are available in those states.

Possessing a controlled drug is an offence.

Maximum penalty: $72,000 (400 p. u.) and/or imprisonment for 2 years.

Possessing instructions or equipment with the intention of using them to manufacture or produce controlled drugs is an offence.

Maximum penalty: $252,000 (1,400 p. u.) and/or imprisonment for 7 years.

Importing/exporting controlled drugs

It is an offence to import/export border controlled drugs or plants from or into Australia, whether or not you intended to sell or supply the drugs or plants for commercial purposes.

Border controlled drugs are certain controlled drugs but the quantities for each level of punishment are lowered, which means that you can import/export less drugs but face higher penalties compared to trafficking drugs within Australia.

Importing will occur when you bring drugs or plants into Australia or if you arrange for drugs or plants to be smuggled into Australia.

Exporting will occur when you take or send drugs or plants to another country.

Imprisonment will almost certainly be imposed if you are convicted of importing drugs or controlled plants given the wish of government to reduce the supply of drugs entering the Australian community. Deterrence is the chief objective of the Commonwealth law.

The Court must look at the quantity of drug involved, the offender’s knowledge about what was being imported, the offender’s role in the importation, and the reward that the offender hoped to gain from participation. Despite these considerations, low level couriers or ‘drug mules’ will still be subject to stern punishment.

The comparative harm to health that each drug may cause compared to another drug is not taken into account in the sentencing process.

It is also an offence to possess controlled drugs which have been imported into Australia, or could reasonably be suspected of having been imported, unless you can prove that you did not know that the drugs or plants had been unlawfully imported, or that they were not unlawfully imported.

Importing/exporting a commercial quantity of a controlled drug or plant for a commercial purpose or possessing a commercial quantity of an unlawfully imported or suspected unlawfully imported drug:

Maximum penalty: $1,350,000 (7,500 p. u.) and/or imprisonment for life.

Importing/exporting a marketable quantity of a controlled drug or plant for a commercial purpose or possessing a marketable quantity of a suspected unlawfully imported drug:

Maximum penalty: $ 900,000 (5,000 p. u.) and/or imprisonment for 25 years.

Importing/exporting less than a marketable quantity of a controlled drug or plant for a commercial purpose:

Maximum penalty: $ 360,000 (2,000 p. u.) and/or imprisonment for 10 years.

Importing/ exporting a controlled drug or plant without an intention to sell the drug or plant, or possessing any quantity of a suspected unlawfully imported drug:

Maximum penalty: $72,000 (400 p. u.) and/or imprisonment for 2 years.

Import/export Marketable pure quantity (grams) Commercial pure quantity (grams)
Border controlled drug or plant Maximum penalty:$900,000 (5,000 p. u.) and/or imprisonment for 25 years. Maximum penalty: $1,350,000 (7,500 p. u.) and/or imprisonment for life.
Cannabis 25,000g 100,000g
Cannabis Resin (Hash) 20g 50,000g
Cannabis plants 100 plants 1000 plants
Methadone 2g 2000g
DMT 2g 2000g
Amphetamine (speed) 2g 750g
Dexamphetamine (Dexies) 2g 2000g
Bufotenine 2g 2000g
2CB 0.5g 500g
MDMA 0.5g 500g
Cocaine 2g 2000g
Ketamine 3g 1000g
Meth-amphetamine (Ice) 2g 750g
Morphine 2g 1500g
GHB 2g 1000g
Opium 20g 20,000g
Heroin 2g 1500g
LSD 0.002g 2g
PCP 2g 2000g
Psylocibin (Magic Mushrooms) 0.1g 100g
Tetrahydro-cannabinols (THC) 2g 5000g
JWH Synthetic cannibinols 2g 5000g

Sending or receiving drugs in the mail

It is an offence to cause a controlled drug or plant to be sent or carried by Australia Post. This offence can apply if you send or receive drugs in the mail either internally in Australia or in connection with a person overseas.

This means that it is illegal to buy drugs or plant material such as seeds or spores from anonymous online websites such as Silk Road (now shut down) or equivalent sites where sellers offer to send you drugs in the post that have been specially packed to avoid detection.

Australia Post randomly screen mail packages for drugs and recipients can be tracked even if using a false name or shipping address.

You will cause drugs to be carried in the mail if you send drugs to another person, or purchase drugs that you intend to receive in the mail you are committing an offence.

Maximum penalty: 2 years imprisonment.

Dealing in drugs

Australian law has a special set of offences to deter and punish people dealing in drugs overseas or on aeroplanes or boats. These offences are called dealings in drugs and include a range of activities associated with the supply, trafficking, manufacture or cultivation of illegal drugs.

The dealing in drugs offences allows the Government to enforce international law as part of the war on drugs. The specific international law is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which was adopted by the international community in 1988.

Under these particular Commonwealth laws illegal drugs are referred to as narcotic drugs or psychotropic drugs. These drugs are the same substances as the illegal drugs controlled by state and territory laws.

A dealing in drugs includes any of the following activities:

  • the cultivation of opium poppy, coca bush or cannabis plant with the intention of producing narcotic drugs;
  • the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained;
  • the manufacture, extraction or preparation of a narcotic drug or psychotropic substance;
  • the possession of a narcotic drug or psychotropic substance with the intention of the manufacture, extraction or preparation of another such drug or substance;
  • the sale, supply, or possession with the intention of sale or supply, of a narcotic drug or psychotropic substance;
  • the importation into Australia, exportation from Australia, or possession with the intention of such importation or exportation, of a narcotic drug or psychotropic substance;
  • the manufacture, transport or distribution of any narcotic drug or psychotropic substance or equipment or materials, with the knowledge that the substance, equipment or materials are to be used for the manufacture or cultivation of a narcotic drug or psychotropic substance;
  • organising, managing or financing a dealing in drugs ; or
  • the possession of any narcotic drug or of any equipment or materials, or instructions intending them to be used to manufacture or cultivate a narcotic drug or psychotropic substance.

Dealing in drugs offences

You can be charged with dealing in drugs if you take part, conspire to commit or aid or abet any dealing in drugs offence.

It is an offence to deal in drugs in another country overseas where the activity is both illegal in that country and under an Australian law.

It is an offence to deal in drugs in another country with plans to deal in drugs in Australia or on board an Australian flight or ship.

It is an offence to deal in drugs on an Australian flight or Australian ship (whether or not the plane or ship is in Australian airspace or waters).

Penalties

The penalties for dealing in drugs offences depend on what particular offence occurred and which particular drug was involved.

It is an offence to be involved in the manufacture, extraction or preparation of a narcotic drug or psychotropic substance or the possession of a narcotic drug or psychotropic substance with the intention to manufacture, extraction or preparation of another such drug or substance:

Maximum penalty: 10 years imprisonment.

It is an offence to be involved in the sale, supply, or possession of a narcotic drug or psychotropic substance.

Maximum penalty:

Maximum Period of Imprisonment
Quantity of drug or substance Where cannabis sold or supplied In any other case
Commercial Life imprisonment Life imprisonment
Trafficable 10 years imprisonment 25 years imprisonment
Less than a trafficable quantity 2 years imprisonment 5 years imprisonment

It is an offence to import into Australia, export from Australia, or to possess a narcotic drug or psychotropic substance with the intention of such importation or exportation

Maximum penalties:

  • Where the court finds intention to sell or supply – penalties are the same as those listed above for sale of a narcotic drug or psychotropic substance.
  • Where there is no intention to sell – 2 years imprisonment.

For the possession of any narcotic drug or psychotropic substance or any equipment or materials, or instructions intending them to be used to manufacture or cultivate a narcotic drug or psychotropic substance.

Maximum penalty: 10 years imprisonment.

It is an offence to be involved in the cultivation of a narcotic plant.

Maximum penalty:

Maximum Period of Imprisonment
Kind of cultivation Over 1000 plants Between 20 and 1000 plants Between 5 and 20 plants Less than 5 plants cultivated
Cultivation of opium poppy and coca bush Life imprisonment 25 years imprisonment 10 years imprisonment 5 years imprisonment
Cultivation of cannabis plant Life imprisonment 10 years imprisonment 5 years imprisonment 2 years imprisonment

It is an offence to separate or extract opium, coca leaves, cannabis or cannabis resin from a narcotic plant.

Maximum penalty: 10 years imprisonment.

Dealings in drugs Trafficable pure quantity (grams) Commercial pure quantity (grams)
Narcotic drug or psychotropic substance 25 years imprisonment Life imprisonment
Cannabis 100g 100,000g
Cannabis Resin (Hash) 20g 50,000g
Cannabis plants 100 plants 1,000 plants
Methadone 2g 2,000g
DMT 2g 2,000g
Amphetamine (speed) 2g 2,000g
Dexamphetamine (Dexies) 2g 2,000g
Bufotenine 2g 2,000g
2CB 0.5g 500g
MDMA 0.5g 500g
Cocaine 2g 2,000g
Coca leaf 250g 80,000g
Ketamine 3g 1000g
Meth-amphetamine (Ice) 2g 750g
Morphine 2g 1,500g
Mescaline 7.5g 7,500g
GHB 2g 1,000g
Opium 20g 20,000g
Heroin 2g 1,500g
LSD 0.002g 2g
PCP 2g 2,000g
Psylocibin (Magic Mushrooms) 2g 2,000g
Tetrahydro-cannabinols (THC) 2g 5,000g

Proceeds of dealing in drugs crime

It is also an offence to intentionally acquire, conceal or convert any property derived from a serious state drug offence. A serious state drug offence is any offence of dealing in drugs (as set out above) that would carry a penalty of 12 months imprisonment under an equivalent state law.

This charge is aimed at prosecuting individuals who don’t commit the dealing in drugs but receive the benefit of the illegal activities or the proceeds of the crime. This offence means that anyone who is involved in drug money laundering or receiving drug money or property can be convicted.

Maximum penalty: 20 years imprisonment.

Trafficking

It is a Commonwealth offence to traffic in a controlled drug.

You can be charged with trafficking a controlled drug if you:

  • sell the substance;
  • prepares the substance for supply with the intention of selling any of it, or believing that another person intends to sell any of it;
  • transport the substance with the intention of selling any of it, or believing that another person intends to sell any of it;
  • guard or conceal the substance with the intention of selling any of it, or assisting another person to sell any of it;
  • possess the substance with the intention of selling any of it; or
  • package the substance or separate the substance into doses or units.

Trafficking in a certain amount 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 is 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.

Amounts of different drugs can be added (aggregated) together so that you can face higher penalties for trafficking offences even if you possess 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. 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 possess with the smallest specified ‘trafficable’ or ‘commercial’ or ‘large commercial’ quantity.

For example if you traffic 1g of cocaine 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 0.75g of ketamine where the trafficable quantity is 1g the prosecution will divide 0.75 by 1 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 trafficable quantity of a controlled drug for supply, transported, guarded, or concealed, or possessed gives rise to a presumption (an automatic belief) that there was intention or understanding that the drug was to be sold. The defendant can rebut this presumption with evidence.

For trafficking, police do not have to prove that you had actual knowledge of the substance was a drug if you were reckless as to whether the substance was a drug.

You will be considered to have been recklessness as to whether a substance was a controlled drug if in all the circumstances you should have been aware:

  • that there was a substantial risk that the substance was in fact a controlled drug; and
  • that it was an unjustifiable risk to possess the substance in case it was a drug.

Whether you took an unjustifiable risk is not a matter of your subjective opinion, but is determined as a matter of fact. This means the court will look at whether in all the circumstances a reasonable person would have taken the risk of trafficking the substance when it might have been a controlled drug.

Penalties

Trafficking in a commercial quantity of a controlled drug:

Maximum penalty: $1,350,000 (7,500 p. u.) and/or imprisonment for life.

Trafficking in a marketable quantity of a controlled drug:

Maximum penalty: $900,000 (5,000 p. u.) and/or imprisonment for 25 years.

Trafficking in a trafficable quantity of a controlled drug:

Maximum penalty: $360,000 (2,000 p. u.) and/or imprisonment for 10 years.

Trafficking $360,000 (2,000 p. u.) and/or imprisonment for 10 years. $900,000 (5,000 p. u.) and/or imprisonment for 25 years. $1,350,000 (7,500 p. u.)  and/or imprisonment for life.
Drug Trafficable pure quantity(Grams) Marketable purequantity(grams) Commercial pure quantity(grams)
Cannabis 250g 25,000g 125,000g
Cannabis Resin (Hash) 20g 25,000g 125,000g
Cannabis Plants 10 plants 100 plants 1000 plants
Methadone 2g 250g 2000g
DMT 2g 250g 2000g
Amphetamine (speed) 2g 250g 750g
Dexamphetamine (Dexies) 2g 250g 2000g
Bufotenine 2g 250g 2000g
2CB 0.5g 100g 500g
MDMA 0.5g 100g 500g
Cocaine 2g 250g 2000g
Ketamine 1g 500g 1000g
Meth-amphetamine (Ice) 2g 250g 750g
Morphine 1.5g 250g 1500g
GHB 0.5g 250g 1000g
Opium 20g 10,000g 20,000g
Heroin 1.5g 250g 1500g
LSD 0.002g 0.05g 2g
PCP 2g 250g 2000g
Psilocybine (Magic Mushrooms) 2g 1000g 2000g
Tetrahydro-cannabinols (THC) 2g 1000g 5000g

Selling a controlled plant

Selling a controlled plant such as cannabis plants is a Commonwealth offence.

Selling includes bartering, trading, or making a deal to sell, even if the deal is never completed, and no plants change hands.

Penalties

Selling a commercial quantity of a controlled plant:

Maximum penalty: $1,350,000 (7,500 p. u.) and/or imprisonment for life.

Selling a marketable quantity of a controlled plant:

Maximum penalty: $900,000 (5,000 p. u.)  and/or imprisonment for 25 years.

Selling less than a marketable quantity of a controlled plant:

Maximum penalty: $360,000 (2,000 p. u.) and/or imprisonment for 10 years.

Manufacture for a commercial purpose

It is a Commonwealth offence to manufacture a controlled drug for a commercial purpose.

Manufacturing includes any process by which a substance is produced. It includes the process of extracting or refining a substance or transforming a substance into a different substance.

You can be charged with manufacturing a controlled drug if you directly engage in its manufacture or you exercise control or direction over its manufacture; or you provide finance for its manufacture.

A commercial purpose is one where you intend to sell the drug or supply it to another person believing that that person intends to sell the drug.

Proof that a person has manufactured a trafficable quantity of a controlled drug gives rise to a presumption (or automatic belief) that there was intention or understanding that the drug was to be sold. The defendant can rebut this presumption with evidence.

There are increased penalties for aggravated manufacturing. Aggravated offences are where a child under the age of 14 was recklessly exposed to a real danger of harm. This means that if the offence of manufacturing takes place in a home and exposes a child to dangerous chemicals or the threat of disease, the offence is aggravated.

Penalties

Manufacturing a commercial quantity of a controlled drug for a commercial purpose:

Maximum penalty: $1,350,000 (7,500 p. u.)  and/or imprisonment for life.

Manufacturing a marketable quantity of a controlled drug for a commercial purpose:

Maximum penalty:

  • For an aggravated offence: $1,008,000 (5,600 p. u.)  and/or imprisonment for 28 years.
  • For a standard offence: $900,000 (5,000 p. u.) and/or imprisonment for 25 years.

Manufacturing less than a marketable quantity of a controlled drug for a commercial purpose:

Maximum penalty:

  • For an aggravated offence: $432,000 (4,200 p. u.) and/or imprisonment for 12 years.
  • For a standard offence: $360,000 (2,000 p. u.) and/or imprisonment for 10 years.

Possessing substances, equipment or instructions for the manufacture of controlled drugs.

It is an offence to possess:

  • a substance;
  • equipment; or
  • document containing instructions –

for the manufacture of a controlled drug, where you intend to use the substance, equipment or instructions to manufacture a controlled drug for sale, or to supply to another person to sell.

If you possess a tablet (pill) press without lawful authorisation, you will be automatically found to have committed this offence unless you can prove beyond a reasonable doubt that you did not intend to use the tablet press to manufacture controlled drugs.

Maximum penalty: $252,000 (1,400 p. u.) and/or imprisonment for 7 years.

Cultivation of a controlled plant for commercial purposes

It is a Commonwealth offence to cultivate a controlled plant for a commercial purpose.

Cultivation includes:

  • planting a seed, seedling or cutting;
  • transplanting a plant;
  • nurturing, tending or growing a plant;
  • guarding or concealing a plant (including against interference or discovery by humans or natural predators);
  • harvesting a plant, picking any part of a plant; or
  • separating any resin or other substance from a plant.

You can be charged with cultivating a controlled plant if you directly engage in its cultivation or you exercise control or direction over the cultivation; or you provide finance for the cultivation.

A commercial purpose is one where you intend to sell the controlled plant or its products or supply them to another person believing that that person intends to sell the plant or its products.

Proof that a person has cultivated a trafficable quantity of a controlled plant or its products gives rise to a presumption (or automatic belief) that there was intention or understanding that the plant or its products were to be sold. The defendant can rebut this presumption with evidence.

There are increased penalties for aggravated cultivation. Aggravated offences are where a child under the age of 14 was recklessly exposed to a real danger of harm. This means that if the offence of cultivation takes place in a home and exposes a child to dangerous chemicals or the threat of disease, the offence is aggravated.

Cultivating a commercial quantity of a controlled plant or its products for a commercial purpose:

Maximum penalty: $1,350,000 (7,500 p. u.) and/or imprisonment for life.

Cultivating a marketable quantity of a controlled plant or its products for a commercial purpose:

Maximum penalty: $900,000 (5,000 p. u.) and/or imprisonment for 25 years.

Manufacturing less than a marketable quantity of a controlled plant or its products for a commercial purpose:

Maximum penalty: $360,000 (2,000 p. u.) and/or imprisonment for 10 years.

Possessing plant material, equipment or instructions for the cultivation of controlled plants.

It is an offence to possess:

  • controlled plant material,
  • equipment or
  • a document containing instructions;

for the cultivation of a controlled plant where you intend to use the substance, equipment or instructions to manufacture a controlled drug for sale, or to supply to another person to sell.

Maximum penalty: $252,000 (1,400 p. u.) and/or imprisonment for 7 years.

Aggravating circumstances

Danger to child from exposure to unlawful manufacture

If you expose a child to danger caused by the unlawful manufacture of a controlled drug you can be charged with an offence. The offence can be proved if a child under the age of 14 was recklessly exposed to a real danger of harm, such as dangerous chemicals, or disease, whether or not that exposure actually occurred.

Maximum penalty: $324,000 (1,800 p. u.) and/or imprisonment for 9 years.

Causing harm to child from exposure to unlawful manufacture

If a child is harmed because of your unlawful manufacture of a controlled drug you can be charged with an offence.

Maximum penalty: $324,000 (1,800 p. u.) and/or imprisonment for 9 years.

Supply to a child

Supply of a controlled drug to a child is an offence. Supplying includes selling the drugs.

Maximum penalty: $540,000 (3,000 p. u.) and/or imprisonment for 15 years.

Supply to a child for trafficking

Supplying a marketable quantity of a controlled drug to a child for the purpose of trafficking is an offence.

This offence will occur when you sell a drug to a child where you believe the child intends to sell the drug.

Maximum penalty: $1,350,000 (7,500 p. u.) and/or imprisonment for life.

Supplying less than a marketable quantity of a controlled drug to a child for the purpose of trafficking is an offence.

Maximum penalty: $900,000 (5,000 p. u.) and/or imprisonment for 25 years.

Proof that a person has supplied a trafficable quantity of a controlled drug gives rise to a presumption (or automatic belief) that the child intended to sell the drugs. The defendant can disprove this presumption with evidence.

Procuring children to traffic drugs

This offence will occur if you force, encourage or arrange for a child to take part in drug trafficking. Procuring includes getting a child to package, prepare, transport or guard or conceal the drugs.

Procuring a child for the purpose of trafficking a marketable quantity of a controlled drug is an offence.

Maximum penalty: $1,350,000 (7,500 p. u.) and/or imprisonment for life.

Procuring a child for the purpose of trafficking less than a marketable quantity of a controlled drug is an offence.

Maximum penalty: $900,000 (5,000 p. u.) and/or imprisonment for 25 years.

Synthetics, legal highs, and new and emerging drugs

Common Synthetics

Cannabis Type Synthetics Hallucinogenic Type Synthetics
  • Kronic
  • Voodoo
  • Spice
  • White Revolver
  • Ash Inferno
  • Black Widow
  • All JWH cannibinols
  • Mephedrone/M-CAT (Meth-Cathinone)
  • Amped (synthetic cocaine)
  • Zoom
  • Cloud Nine
  • Ivory Wave
  • N-BOMes ‘ N-Bombs” (synthetic LSD)
  • Pandora
  • Smiles

Are synthetics legal?

The main laws governing the synthetic drugs in Australia are the Australian Poisons Standard (the Standard Uniform Schedule of Medicines and Poisons (the ‘SUSMP’) and the Criminal Code and Criminal Code Regulations. The Australian Poisons Standard is a list of substances that the Australian government has restricted or made illegal for sale or use without authorisation.

The Australian Poisons Standard does not sets out criminal offences for the supply, sale and possession of controlled drugs or prohibited substances by is enforced in state and territory laws which make the substances listed illegal under their main drug misuse laws.

The relevant schedules in the Australian Poisons Standard are Schedules 8 & 9.

Controlled drugs

Schedule 8 (S8) substances are listed as Controlled drugs – The substances in schedule 8 are substances which the Government believes should be available for medical or therapeutic use but require restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and physical or psychological dependence.

Schedule 8 substances include addictive painkillers and tranquillisers such as, morphine, pure codeine, opium, ketamine and opiates such as methadone and buprenorphine. Schedule 8 also includes prescription medicines that are commonly used as recreational drugs such as dexamphetamines, amphetamine (speed), methamphetamine (ice) and cocaine.

Prohibited substances

Schedule 9 (S9) substances are listed as Prohibited substances – The substances listed in Schedule 9 are substances that the Government believes may be abused or misused.

Therefore the manufacture, possession, sale or use of schedule 9 substance is prohibited by law except when required for medical or scientific research, or for analytical, teaching or training purposes with Government approval.

Schedule 9 substances include well known ‘illicit drugs’ such as cannabis, THC, heroin, GHB, PCP and Mephedrone (Mcat or Meow) and psychotropic hallucinogens including LSD, MDMA (ecstasy), psylocibin (magic mushrooms), mescaline and DMT.

Analogues and derivatives

In addition the Australian Poisons Standard also operates to extend the definition of controlled drugs or prohibited substances to include any synthetic, salt, derivative or analogue which has a substantially similar chemical effect or structure to a controlled drug or prohibited substance. This means that any substance which has a chemical or pharmacological effect (‘high’) as an illegal drug is also illegal.

Synthetics can be quickly added to the Poisons Standard by the Australian government and then become illegal to possess or supply in States and Territories, which automatically mirror the Commonwealth law. 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.

The Criminal Code gives the Government the power to declare substances or plants to be controlled drugs or plants. The Government can do this by making or updating the Criminal Code Regulations, and listing substances which it wants to make illegal to possess, manufacture, cultivate, supply, traffic, import, or export. The fact that the Minister can make regulations without much notice or media coverage means that hard to know if new substances have been added to the regulations and made illegal.

The Australian Government can add a substance or plant to the regulations to make them illegal if it thinks that the substance or plant is likely to be taken without appropriate medical supervision and that:

  • Taking the substance would create a risk of death or serious harm;
  • Taking the substance or plant would have the same or a similar physical or mental effect as another illegal drug;
  • The substance is addictive;
  • Possession, supply, sale, trafficking, manufacture or cultivation of the substance or plant is already illegal in Australian states and territories or in other countries;
  • The substance poses a substantial risk to the health or safety of the public.

Bans under consumer laws

Other Australian government laws can temporarily ban the sale or display of substances, without making them illegal.

In 2013 the Australian Government used consumer laws to temporarily ban the sale, supply or display of synthetic drugs by retailers such as tobacconists, adult shops or herb shops. If shops sold these products they faced the same penalties as shops that sold faulty or dangerous products.

Consumer laws allowed substances to be banned on the trading name as well as their chemical structure and effect. The following JWH type cannibinols (synthetic cannabis) were banned:

  1. White Revolver
  2. Ash Inferno
  3. Kyote
  4. K2
  5. Kronic
  6. Black Widow
  7. BuddhaExpressBlackLabel
  8. IblazeTropicThunder
  9. I Blaze
  10. Galaxy Ultra Nova
  11. Skunk
  12. Circus Deluxe
  13. Vortex Inferno
  14. Herbal Incense
  15. KingKarma
  16. Montana Madness
  17. Sharman
  18. Iceblaze
  19. Slappa

The initial ban was for 30 days and came into force on the 18 June 2013 and was extended twice before expiring on the 13 October 2013 and was designed as a ‘stop gap’ measure to prevent the sale of these substances while the states and territories developed and passed laws making them illegal.

All States and Territories now have laws making the sale, display or supply of synthetics including the synthetic cannibinols listed above illegal.

Psychoactive Substances and serious drug alternatives

 

Searching and drug detection

General searches

An Australian Federal 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 AFP officer has reasonable grounds to suspect that you are in possession of a prohibited drug or plant or have possession of anything connected to an Commonwealth drug offence.

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.

An indication by a drug detection dog that you possess a controlled drug or plant where the detection dog sits down next to you, gives an officer reasonable grounds to search you.

However the act of the dog sniffing for drugs does not amount to a search itself.

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 drug 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.

General or frisk searches

Police can frisk search you by asking you to remove your jacket, hat, scarf or any other outer layer clothes for the them to examine and then patting you down by quickly running their hands over your garments. If you refuse to be searched the police can arrest you and use force to search you.

Strip searches

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 items of clothing they say.

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 are not allowed to conduct internal or cavity searches.

Police are not allowed to strip search children under 10 years old. Police can strip search children aged between 10 and 18, or an incapable person, only if that child or person has been arrested and charged, or if a order from a Magistrate has been obtained. Strip searches of children or an incapable person must be conducted in the presence of a parent or guardian or an independent, responsible adult.

Forensic procedures

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 whish to undertake less invasive sample taking such as taking your fingerprints.

Forensic procedures cannot be preformed on children under 10 years old. Forensic procedures cannot be preformed on children under 18 or an incapable person who is unable to understand the nature of the procedure and the consequences of the procedure without a court order. There are special rules for obtaining informed consent from an Aboriginal or Torres Strait Islander person.

If police intend to preform a procedure on an incapable person (e.g., a mentally disabled or unconscious person) or a child under the age of 18 a responsible person such as a parent, guardian, lawyer or partner must be present to support the person during the search.

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 cavity 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 preform 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 preformed by a police officer who has the rank of a Sergeant or higher. Any intimate forensic procedure must be performed by a medical practitioner. The medical practitioner can request help from police to carry out the search.

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, toe-prints and footprints.

Police cannot take the fingerprints of a child younger than 18 without the consent of the child and his or her parents, or a court order.

Police must make sure that you give informed consent, which means that you must understand the 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 and private premises

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 thing (like paraphernalia, stolen property or weapons) associated with an offence and that it is likely to be hidden, lost or destroyed if it is not taken.

An AFP Officer when searching a car without a warrant must:

  • perform the search in a public place;
  • not detain the car once the search is complete;
  • not damage any container when opening it, unless you refused to help open it.

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.

AFP and Customs officers also have broad powers to stop and search without warrant any passenger on board, or attempting to board or get of an Australian flight or ship.

Searches of private premises

The AFP cannot normally enter your house without a warrant.

Sniffer dogs

The AFP and Customs officers are allowed to use sniffer dogs to carry out searches. This means sniffer dogs can be used to help search you after police have formed a reasonable suspicion that you are holding.

In NSW police a use sniffer dogs to carry out both general (‘random’) drug detection and to assist with searches of your person or property.

General drug detection

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?

AFP use sniffer dogs in and around airports and at special national events.

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.

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.

Discrimination

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

At the Commonwealth level the law prohibits the discrimination or vilification of an individual based on their:

  • sex:
  • sexuality;
  • gender identity;
  • relationship status;
  • status as a parent or carer;
  • pregnancy;
  • breastfeeding;
  • race;
  • religious or political conviction;
  • disability;
  • industrial activity;
  • age;
  • profession, trade, occupation or calling;
  • association (whether as a relative or otherwise) with a person identified by reference to an attribute referred to in another paragraph of this subsection; or
  • criminal record.

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.

Areas of life where discrimination is unlawful are:

  • work – 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.
  • sport – you cannot be refused membership of a sports team only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • the administration of Commonwealth laws and services – you cannot be treated differently by Centrelink or Medicare 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 Australian Human Rights Commission.

Commonwealth discrimination laws also prohibit vilification. Vilification is a public act (including speaking, writing and broadcasting) that incites hatred towards, serious contempt for, or severe ridicule of a person or group of people.

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.

How to complain about discrimination

If you believe you have been discriminated against you maybe able to make a complaint and seek compensation. Complaints can be made in writing to the Australian Human Rights Commission. Not all unfair treatment will be considered to be discrimination.

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 Commission has the power to make legally binging orders.

The Commission can order that the complaint be dismissed, or if the complaint is upheld, that compensation or damages are paid, an apology given or an order that the discriminatory behaviour stopped.

If you feel your rights have been not been given respect seek advice from a lawyer or a community legal centre. It is good thinking to seek legal advice before considering legal proceedings.

For information on free legal advice see the legal and discrimination section in the services directory for the contact numbers for community legal services and for the Commission. Community legal centre organisations in each region can give you further information, or else you can contact your local drug user organisation for assistance in making a complaint.

Australian Human Rights Commission

Street Address: Level 8, Piccadilly Tower 133 Castlereagh Street SYDNEY NSW 2000

Postal Address: GPO Box 5218 SYDNEY NSW 2001

General enquiries: (02) 9284 9600

Complaints Infoline: 1300 656 419

General enquiries and publications: 1300 369 711

TTY: 1800 620 241

Facsimile: (02) 9284 9611

Email: complaintsinfo@humanrights.gov.au

‘The Law’

Criminal Code 1995 – sets out offences of importing and exporting, trafficking, manufacture and cultivation of border-controlled drugs.

Criminal Code Regulations 2002 – Schedule 3 lists controlled drugs and Schedule 4 lists border-controlled drugs. Regulation 5B lists controlled plants and regulation 5E lists border-controlled plants.

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 –sets out offences of dealings in drugs, offences on board boats and planes and offences overseas.

Narcotic Drugs Act 1967 – gives effect to the UN Single Convention On Narcotic Drugs, 1961 and makes it offence to manufacture without a license any drug listed in the Convention attached in Schedule 1.

Crimes Act 1912 – sets out search, investigation and arrest powers and rules for the conduct of forensic procedures for police investigating Commonwealth offences.

Australian Federal Police Act 1979 – sets out search, investigation and arrest powers and rules for AFP officers.

Customs Act 1901 – sets out powers for Customs officers to search boats and planes and all goods and shipments being imported into Australia.

Therapeutic Goods Act 1989 – parts 6.3 sets out rules for the scheduling of drugs, medicines and poisons according to their risk of misuse or abuse. Section 52D gives the Commonwealth power to amend the Poisons Standard, known as the Standard for the Uniform Scheduling of Drugs and Poisons (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.

Australian Human Rights Commission Act 1986 – establishes the Australian Human Rights Commission and sets out the procedure for investigating and resolving discrimination complaints.

Age Discrimination Act 2004 – sets out Commonwealth age discrimination law.

Disability Discrimination Act 1992 – sets out Commonwealth disability discrimination law.

Racial Discrimination Act 1975 – sets out Commonwealth racial discrimination law.

Sex Discrimination Act 1984 – sets out Commonwealth sex discrimination law.

In 2015 the Criminal Code was amended to include offences about synthetic substances that have a psychoactive effect or are marketed, promoted and used as an alternative to other controlled drugs.

 

Psychoactive substances are defined as any substance that can induce a psychoactive effect when it is used. Psychoactive effect is defined broadly and includes any significant change or disturbance in behaviour such as hallucinations, or dependence. 

 

Serious drug alternatives are defined as any substance that has a psychoactive effect that is the same as, or is substantially similar to, the psychoactive effect of a serious drug, or that is a lawful alternative to a serious drug.[1]

It is an offence to import a psychoactive substance.

 

Maximum penalty: $54,000 (300 p.u.) and/or 5 years imprisonment.[2]

 

It is an offence to import a substance that is represented (either explicitly or suggested) to be a serious drug alternative.

 

Maximum penalty: $21,600 (120 p.u.) and/or 2 years imprisonment.[3]



[1]s 320.1 Criminal Code Act 1995

[2] s 320.2 Criminal Code Act 1995

[3] s 320.3 Criminal Code Act 1995