Frequently Asked Questions

What future ramifications can I expect to experience if I am convicted of trafficking in drugs?

  • Trafficking is the most serious drug offence. If you are convicted of trafficking in a trafficable quantity of a illegal drug or plant there is a high chance that you will be sentenced to serve a term of imprisonment even if you were a low level dealer or only dealing to support your own drug addiction or habit.
  • In WA and the NT the Court must declare you a drug trafficker if you have been convicted twice in the 10 previous years of certain drug offences (supply, manufacture, cultivation). This means if you are before the court a third time, you risk being declared a drug trafficker. If you are declared a drug trafficker all your property (houses, land, cars, boats, money, shares and personal possessions) can be forfeited to the State government and permanently seized. Your property can be taken even if it was not connected to a drug offence and was lawfully obtained or acquired.
  • A charge of trafficking is an indictable offence, which means that if you are charged you may not be able to be bailed out, without providing large amount of surety. This may mean you spend time in prison before your case is heard, which could impact your ability to work.
  • A conviction for trafficking will appear permanently on your criminal record which means that it will show up for jobs which require a police record check. A conviction for drug trafficking will prevent you from being able to travel to many different countries overseas. A conviction may prevent you from obtaining a credit card or loan from the bank.

Under what circumstances can the police search me, my personal belongings, my car or my home? What rights do I have in regard to this?

  • Police have very broad powers to search you and your property and can use reasonable force if necessary. If a police officer wants to search you it is best to allow them to search you and make a complaint or challenge the legality of the search in Court with the help of a lawyer. You can be charged with obstructing, hindering or even assaulting police if you resist the search.
  • You have the right to ask the name, rank and station of a police officer and ask why they want to search you or what offence they suspect you of committing.
  • Police can only search you or your property if:
    • they believe 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 dispose of, hide or conceal the drugs other objects or evidence connected to an offence
    • they believe 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;
    • you consent or agree to the search;
    • you are taken into arrested and taken into custody by the police;
    • the police have a warrant or court order to search you.
  • Police can also stop your vehicle or search your vehicle, without a warrant if they believe on reasonable grounds that you have possession of a drug or other thing (like paraphernalia) associated with an offence 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.
  • 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.
  • Police have broad powers to conduct general drug detection using sniffer dogs in most public places. Sniffer dog drug detection is not considered to be a search.

Can the police stop me leaving from an NSP or pharmacotherapy clinic and search me just because I’ve exited one of these locations?

  • In NSW it is not an offence to possess a small quantity of a prohibited drug or self-administer a prohibited drug inside a licensed medically supervised injecting centre. However, you can be charged outside the licensed injecting centre if you are found by police to be in possession of prohibited drugs that you do not have a lawful prescription to possess or use.
  • Across all States and Territories Police guidelines encourage police to use their discretion to not investigate or charge people in the vicinity of pharmacotherapy clinics or needle and syringe exchanges, but there is no law that specifically prevents you being charged with possession outside those places.
  • Police can stop and search you if they have a reasonable suspicion that you possess a prohibited drug. Police will consider all the circumstances your behaviour, the time, of day and location.
  • If you are in the area close to a NSP or clinic and are known to police as a user this might be enough to allow police to form a reasonable suspicion so that they are lawfully entitled to search you.
  • However, if you just happen to be in the area of the Centre, this might not be a reasonable basis for police to form a suspicion. Or if you are a user known to police but in an another area like a park or a bar police couldn’t simply rely on your past use to justify searching you.
  • If police ask you to roll up your sleeves and see track marks that would not be a sufficient reason to search you. Police must have more evidence than the fact that you have used drugs in the past.
  • Regardless of whether you think a police officer has reasonable grounds to suspect you, you should co-operate if they wish to search you and make a complaint or challenge the legality of the search in Court with the help of a lawyer. You can be charged with obstructing, hindering or even assaulting police if you resist the search.
  • You have the right to ask the name, rank and station of a police officer and ask why they want to search you or what offence they suspect you of
    committing.

What are my rights regarding being caught shoplifting? Can the police stop me outside the store? What about in my own home or public transport?

  • Generally police can stop and search you in public places such as shopping centres or on public transport if they have reasonable grounds to suspect that you have anything connected to an offence, including anything stolen.
  • If you are identified by a store owner or security guard or on CCTV footage, this would give police reasonable grounds to suspect that you had stolen goods in your possession.
  • Police cannot just search you if you are leaving a store and if they have no basis to suspect you of actually shoplifting then it is unlawful for them to search you. If a police officer wants to search you it is best to allow them to search you and make a complaint or challenge the legality of the search in Court with the help of a lawyer. You can be charged with obstructing, hindering or even assaulting police if you resist the search.
  • You have the right to ask the name, rank and station of a police officer and ask why they want to search you or what offence they suspect you of committing.
  • Technically police can also enter your home to search you if you have run away from the scene of a crime and they are chasing you, or if they intend to arrest you and the circumstances are serious or urgent. It is unlikely that shoplifting offences would be considered serious or urgent enough to allow forcible police entry without a warrant.

On my methadone or bupe takeaways it states “do not operate machinery while under the influence”. Does this mean I am not able to drive a car, or a forklift at work if I am on a pharmacotherapy?

  • It is an offence in all States and Territories to drive under the influence of any drug that impairs your ability to properly control or drive a motor 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.
  • In some states there is a defence that you were on legally prescribed medication that impaired your driving. This defence is only available if you took the medicine in accordance with the medical practitioner’s advice and the instructions or warnings on the drug container. In some states you also have to prove that you didn’t know or couldn’t have reasonably known that the drug or combination of drugs would impair your driving.
  • As long as your driving is not affected, it is legal for you to drive on legally prescribed methadone or buprenorphine. If your driving is not affected it may be hard for police to find out that you are on prescription medication, or prove that your driving was impaired.

Can a swab, saliva or oral fluid test undertaken by a roadside drug test pick up my methadone, buprenorphine or benzos? What happens if I have an accident and they find these substances in my system?

  • Current roadside swab tests can only detect cannabis, amphetamines (speed, ice) and MDMA (ecstasy). This means that prescription medicines will not register on a swab test. It is not illegal to drive with prescription medicines if you are not impaired by the drugs and can properly drive and control your vehicle.
  • Evidence that you are impaired could include that you were driving erratically, swerving, crossing lanes, or failing to observe road rules or you seem fidgety, have dilated pupils or have trouble focusing. If police have reasonable grounds to believe you are under the influence of a drug they can make you take an impairment assessment (sobriety test) or drug screening by requiring you to provide saliva or blood sample for testing. It is a serious offence to refuse to provide a saliva or blood sample if a police officer requests it. Police will probably require a sample of your blood if you have a serious crash.
  • A drug-screening test where your blood is tested can detect all drugs, including prescription drugs. If you have an accident, and a test revels that you have drugs in your system this may be enough evidence for police prove you were impaired by drugs and therefore breaking the law by driving.

Can I legally possess clean injecting equipment including spoons, swabs, tourniquets and syringes?

  • You can legally possess hypodermic needles and syringes in all states and territories, except Tasmania, where it is an offence. However police are unlikely to charge you with possessing a needle and syringe, without further evidence of commission of a drug offence that would support a claim that you intended to use the needle or syringe to administer illegal drugs.
  • In WA it is illegal to possess equipment used to administer drugs where that equipment has traces of an illegal drug on or in it.
  • It is illegal to possess other any other drug paraphernalia, which could include injecting equipment, if police can prove you intended to use it to smoke or inject or otherwise administer a drug. It is unlikely that police could prove that you were using spoons swabs or tourniquets for the administration of illegal drugs without you admitting that you use illegal drugs or the police finding you in possession of illegal drugs.

Is it against the law to inject someone else, even if they ask me to do it?

  • Yes it is illegal in every State and Territory it is illegal to use illegal drugs or to administer drugs to someone else. This means that it is illegal to inject someone else even if they ask you to and consent to you injecting them.
  • Penalties will vary depending on the circumstances but you could face
  • If you administer to 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 attendance at overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.

Do police always attend overdoses with Ambulances, or is it depending on the address and location?

  • 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); or
    • a death has occurred or there are suspicious circumstances (like attempted murder), or
    • there is some other crime involved; or
    • they were the first on the scene or were called by another person or bystander.
    • In South Australia police will be called automatically if the OD occurred in a ‘flagged area’ which means the ambulance service has identified the area as a dangerous area or an area where violence has occurred in the past, so that police are automatically sent when a call for assistance in that area is logged.
  • 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.

Do I have to disclose that I am HIV/HEP C positive to anyone?

  • In all States and Territories HIV and HEP B and C are notifiable diseases, which means that your doctor or pathologist or hospital must notify the Health Department if you test positive to one of these diseases. If you test positive the Medical practitioner has a duty to inform you of the risks of infecting other people and your legal obligation to take all precautions to prevent the transmission of disease. Depending where you live you may be legally required by public health law to disclose your disease status prior to having sex or unprotected sex.
  • In Tasmania you must disclose your notifiable disease status to any proposed sexual partner before having sex with them, whether or not you use a condom.
  • In NSW disclosure is required before sex unless a condom is used and in Queensland the fact that you informed a person of your disease status will act as a defence to a charge of recklessly transmitting an infection.
  • In SA and the ACT you must take all reasonable steps to prevent the transmission of notifiable conditions such as HIV or HEP C may require that you disclose your positive status before having sex, especially unprotected sex.
  • In all States and Territories you can be charged with a variety of criminal offences against the person including inflicting grievous bodily harm or endangering life. If you are charged with one of these offences and it is found that you had unprotected sex without disclosing your status you are likely to be convicted.