New South Wales

Which drugs are Illegal?

In New South Wales illegal drugs are called prohibited drugs. Illegal plants are called prohibited plants.

The definition of “prohibited drugs” extends to include substances that are chemical analogues of, or chemically related to, listed prohibited drugs.

This may mean that new synthetic type drugs that are chemically derived from or related to a prohibited drug will also be illegal even if it is not specifically listed in the schedules.

Prohibited Drugs Prohibited Plants
  • Heroin
  • Cannabis
  • THC cannibinols
  • Cathinone (Mephedrone, MCAT, meow)
  • PCE
  • PCP
  • LSD
  • Ecstasy/MDMA
  • DMT
  • GHB
  • Meth-amphetamine (ice/speed)
  • Mescaline
  • Morphine
  • Methadone
  • Ketamine
  • Amphetamine
  • Dexamphetamine
  • Buprenorphine
  • Cocaine
  • This is not the full list of all prohibited drugs – All drugs listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 under the heading “Prohibited drugs” are illegal.
  • Cannabis
  • Opium poppies
  • Erythroxylon (coca plants)
  • This list is not the full list – all plants listed in schedule 1 of the Drug Misuse and Trafficking Act 1985 under the heading “Prohibited plants” are illegal.

General information

Knowledge of the particular drug

For offences involving prohibited drugs or plants in NSW the police generally have to prove that you knew or should have known that the drugs or plants were prohibited 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 prohibited drug or plant, for the purpose of supply, you can still face the same penalties as if it were a prohibited 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 that contains an amount of a prohibited 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.

NSW uses a mixed weight system of calculating threshold quantities for trafficking.

NSW 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 the prohibited 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 trafficable quantity for you to be charged with trafficking.

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 prohibited 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 or inciting supply if you are a user and arrange to score off a dealer for your own use. However you can still be charged with possession or trafficking depending on how much you buy and where you buy it.

Possession

It is an offence to possess a prohibited drug or plant, unless the prohibited drug or plant has been lawfully prescribed or supplied.

Note that cannabis is a prohibited drug (no matter what anyone might say about it medicinal marijuana being “decriminalised”) and methadone (unless you are getting it from a clinic or on prescription).

Possession for the purpose of supply (as opposed to personal use) is a much more serious offence. For further information see the section on “Supply”.

It is not an offence to possess a small quantity of a prohibited drug inside a licensed medically supervised injecting centre, however the police can still decide to arrest and charge you if you are found to be in possession outside, in the vicinity or travelling to or from a injecting centre. See the section on use and administration for more information.

Proving possession

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

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 deemed possession

Despite the general requirements of knowledge, custody and control, NSW law deems that drugs are in your possession if you are in “order or disposition”. Having order or disposition of drugs means that you have custody and control of the drugs. Effectively, this law rules out the requirement of knowledge as to the nature of the substance if you are proved to have custody and control. It is not necessary in NSW to show you knew you had an illegal drug.

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 had custody or control of the drugs, unless people make admissions.

However it is not impossible for police to prove that possession was jointly held because of the rule that possession is deemed if a person has order or disposition of the drugs under a joint arrangement, where you and your flatmates have a stash that you all have access to.

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’.

Penalties

Possession of a drug (for your own personal use) is a summary offence, which means it is dealt with by the Local Court or Children’s Court.

Maximum penalty: $5,500 and/or imprisonment for 2 years.

In practice, fines for possession of drugs such as heroin, amphetamines and cocaine generally range from $150-$750, the average fine being about $300-400. Fines for cannabis possession are usually lower, generally ranging from about $100-500 and averaging about $250.

If you are caught with larger amounts of drugs you will be deemed to possess the drugs for the purpose of supplying them, which means you will automatically face much higher penalties, unless you can prove that the drugs were for your own use, which may be hard.

See the supply section for penalties you may face if you are in possession of more than a small amount of prohibited drugs or plants.

Use and administration

Self-administration of a drug (using) or attempting to administer or help another person use a prohibited drug is 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 that you have obtained lawfully, such as prescription drugs like codeine, Valium (diazepam), Dexamphetamine, benzodiazepines, buprenorphine, and methadone without following the doctor 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. It is also an offence to ask another person to administer a prohibited drug to you, whether by injection or oral dose or any other method.

Maximum penalty: $2200 and/or imprisonment for 2 years.

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 which you do not have a lawful prescription to possess or use.

Police guidelines encourage police to use their discretion to not investigate or charge people in the vicinity of the King’s Cross Injecting Centre, but there is no law that specifically prevents you being charged with possession outside the Centre. Supply offences will be investigated and prosecuted.

Police can stop and search you if they have a reasonable suspicion that you possess a prohibited drug. Simply being in the area close to the Centre and known to police as a user might not be a reasonable basis for police to form a suspicion that you are in possession of drugs so that they are lawfully entitled to search you.

Charges of self-administration are difficult to prove without someone making an admission in combination 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);
  • there is some other crime involved; or
  • they were the first on the scene.

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.

Obtaining

It is an offence in NSW to obtain or attempt to obtain prescription drugs by lying or making false representations, including by forging or altering a prescription.

Maximum penalty: $2200 and/or imprisonment for 2 years.

Supply

It is an offence to supply a prohibited drug without lawful authority. Supply has a very broad definition in NSW 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 buyers; or
  • 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 you in possession of dealing equipment like scales, deal bags, gel capsules, and large amounts of 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 taking part in supply and conspiracy to supply (however you cannot be convicted of conspiracy if you are only buying).

If you have more than the “trafficable quantity” of a drug, you may be charged with “deemed supply”. It will be up to you to prove that the drugs are not in your possession for the purpose of supply (e.g.,they were for your own use or you were simply going to return them to their owner).

Deemed supply does not apply to trafficable amounts of heroin, morphine, opium or cannabis (including hash resin and oil) if the person can prove the substances were lawfully prescribed.

If you are caught dealing to an undercover police officer, you cannot rely on a defence of “entrapment” unless the police have induced you to commit an offence that you wouldn’t otherwise commit.

Penalties for supply can be steep. They depend on the type and quantity of the drug involved, the offender’s level of seniority in the supply chain, and whether the charges are heard by a magistrate in the Local Court, or by a judge in the District or Supreme Court. Supplying to children also carries tougher penalties.

Offences involving the supply of less than the indictable quantity are dealt with in the Local Court, unless the prosecution or defendant choose to have the matter dealt with in the District Court. A case heard in the Local Court is held summarily, which means that your case will be heard by a Magistrate only.

Supply offences involving more than the indictable quantity are dealt with in the District Court (or possibly, for commercial quantities, the Supreme Court). Indictable matters usually involve a judge and jury.

In practice, penalties vary considerably. For example, about 45% of people dealt with in the Local Court for supplying heroin go to jail. In the District and Supreme Courts, this figure increases to about 70%. For commercial quantities, offenders always go to jail and the length of sentence is usually somewhere between 2 and 12 years.

Cannabis is treated less seriously. About 30% of cannabis suppliers dealt with in the Local Court and about 50% of those dealt with in the superior courts, are imprisoned. However, imprisonment rates increase to 100% for commercial quantities.

Supply offences involving a prohibited drug other than cannabis

Supply of a large commercial quantity of a prohibited drug other than cannabis is an offence:

Maximum penalty: $550,000 and/or imprisonment for life.

Supply of a commercial quantity of a prohibited drug other than cannabis is an offence:

Maximum penalty: $385,000 and/or imprisonment for 20 years.

Supply of an indictable quantity of a prohibited drug other than cannabis is an offence:

Maximum penalty: $220,000 and/or imprisonment for 15 years.

Supply of more than the small quantity but less than an indictable quantity of a prohibited drug other than cannabis is an offence:

Maximum penalty: $11,000 and/or imprisonment for 2 years.

Supply offences involving cannabis

Supply of a large commercial quantity of cannabis is an offence:

Maximum penalty: $550,000 and/or imprisonment for 20 years.

Supply of a commercial quantity of cannabis is an offence:

Maximum penalty: $385,000 and/or imprisonment for 15 years.

Supply of an indictable quantity of cannabis is an offence:

Maximum penalty: $220,000 and/or imprisonment for 10 years.

Supply of less than the small quantity of a prohibited drug other than cannabis is an offence:

Maximum penalty: $5500 and/or imprisonment for 2 years.

Supply Small purequantity(grams) Trafficable pure quantity (grams) Indictable pure quantity (grams) Commercialpure quantity (grams) Large commercial pure quantity(grams)
Drug Maximum Penalty: $5,500 / 2 years MaximumPenalty:$11,000 / 2 years Maximum Penalty:$220,000 / 10 years Maximum Penalty: $385,000 / 20 years Maximum Penalty: $550,000/ Life
Cannabis 30g 300g 1000g 25,000g 100,000g
Cannabis Resin (Hash) 5g 30g 90g 2500g 10,000g
Cannabis Oil 2g 5g 10g 500g 2000g
Cannabis Plants 5 plants 50 plants 250 plants 1000 plants
Enhanced Cannabis Plants 5 plants 50 plants 50 plants 250 plants
Methadone 1g 3g 5g 500g 2000g
Liquid Methadone 200ml 600ml 1L 100L 400L
DMT 1g 3g 5g 500g 2000g
Amphetamine (speed) 1g 3g 5g 250g 1000g
Dexamphetamine (Dexies) 1g 3g 5g 250g 1000g
Bufotenine 0.8g or 4 doses 3gor 15 doses 5gor 25 doses 500g 2000g
Buprenorphine 0.02g 0.06g 0.1g 10g 40g
2CB 0.08g or 4 doses 0.3g or 15 doses 5g or 25 doses 25g 100g
Cocaine 1g 3g 5g 250g 1000g
Ketamine 2.5g 7.5g 12.5g 1250g 5000g
Meth-amphetamine (Ice) 1g 3g 5g 250g 1000g
MDMA (Ecstasy) 0.25g 0.75g 1.25g 125g 500g
Morphine 1g 3g 5g 250g 1000g
Opium 10g 30g 50g 1000g 4000g
Heroin 1g 3g 5g 250g 1000g
LSD 0.0008g or 4 doses 0.003g or 15 doses 0.005g or 25 doses 0.5g 2g
N-BOMes 0.0008g or 4 doses 0.003g or 15 doses 0.005g or 25 doses 0.5g 2g
PCP 1g 3g 5g 250g 1000g
Psylocibin (Magic Mushrooms) 0.04g or 4 doses 0.15g or 15doses 0.25g or 25 doses 25g 100g
Tetrahydro-cannabinols (THC) 1g 3g 5g 500g 2000g
JWH Synthetic Cannabinols 10g 30g 50g 1000g 4000g
GHB 10g 30g 50g 1000g 4000g
Cathinone (Mcat) 1g 3g 5g 500g 2000g

Ongoing supply

In NSW you can be convicted of ‘ongoing supply’ if you are found guilty of having committed the offence of supply for a commercial purpose, on three or more separate occasions during any 30-day period.

It doesn’t have to be the same type of drug each time. This is considered to be a far more serious offence than a single supply offence. It is a strictly indictable offence, which means it can’t be finalised in the Local Court.

Take care if you are thinking of making admissions about supply to the police, even if you have only dealt small amounts every now and then. Talk to an experienced lawyer first.

There is a separate offence of supply on an ongoing basis, or dealing, which means that you will face a steeper penalty if you are proved to have supplied a prohibited drug other than cannabis on 3 or more times during a period of 30 days. You don’t have to deal the same drug or to the same person to be charged with this offence.

Maximum penalty: $385,000 and/or imprisonment for 20 years.

Manufacture

It is an offence to manufacture, or take part in the manufacture of, a prohibited drug without lawful authority. Manufacturing is defined to include extracting or refining the drug from another substance or plant.

It is illegal to possess a tablet press or precursor chemicals that can be used to manufacture prohibited drugs (e.g. pseudoephedrine) with the intent to use these items to manufacture prohibited drugs. In NSW, it is also an offence to expose children to the manufacturing or production process of illegal drugs, or to substances being stored for use in that manufacturing or production process.

It is also illegal to possess instructions that tell you how to manufacture prohibited drugs.

Cultivation

Cultivation of prohibited plants is also a serious offence. Cultivation is defined to include:

  • sowing or scattering the seed produced by the prohibited plant;
  • planting;
  • growing;
  • tending;
  • nurturing; or
  • harvesting the prohibited plant.

Other actions like watering the plant or fertilising it will likely be considered cultivation.

Despite what you might have heard, in NSW you are not allowed to grow cannabis plants for your personal use or for medical reasons.

It is also a serious offence to cultivate prohibited plants indoors or by enhanced methods which means hydroponically, using nutrient enriched water or by using artificial light or heat sources.

Penalties

The maximum penalties for cultivation or manufacture are similar to those for supply, depending on the type and quantity of drug involved, the offender’s role, which court is dealing with the case and whether children have been exposed to the cultivation or manufacturing process.

If you are caught in possession of precursors, the police must establish your intention to use the precursor to manufacture prohibited drugs.

Manufacture or cultivation offences involving a prohibited drug other than cannabis

Manufacturing or cultivating a large commercial quantity of a prohibited drug or plant for sale:

Maximum penalty: $550,000 and/or imprisonment for life.

Manufacturing or cultivating a commercial quantity of a prohibited drug or plant:

Maximum penalty: $385,000 and/or imprisonment for 20 years.

Manufacturing or cultivating an indictable quantity of a prohibited drug or plant:

Maximum penalty: $220,000 and/or imprisonment for 15 years.

Manufacturing or cultivating more than the small quantity but less than the indictable quantity of a prohibited drug or plant where prosecution elects to allow summary prosecution:

Maximum penalty: $11000 and/or imprisonment for 2 years.

Manufacturing or cultivating less than the small quantity of a prohibited drug or plant where prosecution elects to allow summary prosecution:

Maximum penalty: $5500 and/or imprisonment for 2 years.

Even the possession of instructions for the manufacture or cultivation of a prohibited drug or plant without a lawful excuse is an offence:

Maximum penalty: $2200 and/or imprisonment for 2 years.

Manufacture or cultivation offences involving cannabis

Manufacturing or cultivating a large commercial quantity of a prohibited drug or plant for sale:

Maximum penalty for cannabis: $550,000 and/or 20 years.

Manufacturing or cultivating a commercial quantity of cannabis:

Maximum penalty: $385,000 and/or 15 years.

Manufacturing or cultivating an indictable quantity of cannabis:

Maximum penalty: $220,000 and/or imprisonment for 10 years.

Manufacturing or cultivating more than the small quantity but less than the indictable quantity of cannabis where prosecution elects to allow summary prosecution:

Maximum penalty: $11000 and/or imprisonment for 2 years.

Manufacturing or cultivating less than the small quantity of cannabis where prosecution elects to allow summary prosecution:

Maximum penalty: $5500 and/or imprisonment for 2 years.

Even the possession of instructions for the manufacture or cultivation of cannabis without a lawful excuse is an offence:

Maximum penalty: $2200 and/or imprisonment for 2 years.

Manufacture/Cultivation Small pure quantity (grams) Trafficable pure quantity (grams) Indictable pure quantity (grams) Commercial pure quantity (grams) Large commercial pure quantity (grams)
Drug Maximum Penalty: $5,500 / 2 years Maximum Penalty:$11,000 / 2 years Maximum Penalty:$220,000 / 15 years Maximum Penalty:$385,000 / 20 years Maximum Penalty: $550,000 / Life
Cannabis 30g 300g 1000g 25,000g 100,000g
Cannabis Resin (Hash) 5g 30g 90g 2500g 10,000g
Cannabis Oil 2g 5g 10g 500g 2000g
Cannabis Plants 5 plants 50 plants 250 plants 1000 plants
Enhanced Cannabis Plants 5 plants 50 plants 50 plants 250 plants
Methadone 1g 3g 5g 500g 2000g
Liquid Methadone 200ml 600ml 1L 100L 400L
DMT 1g 3g 5g 500g 2000g
Amphetamine (speed) 1g 3g 5g 250g 1000g
Dexamphetamine (Dexies) 1g 3g 5g 250g 1000g
Bufotenine 0.8gor 4 doses 3gor 15 doses 5gor 25 doses 500g 2000g
Buprenorphine 0.02g 0.06g 0.1g 10g 40g
2CB 0.08gor 4 doses 0.3gor 15 doses 5gor 25 doses 25g 100g
Cocaine 1g 3g 5g 250g 1000g
Ketamine 2.5g 7.5g 12.5g 1250g 5000g
Meth-amphetamine (Ice) 1g 3g 5g 250g 1000g
MDMA (Ecstasy) 0.25g 0.75g 1.25g 125g 500g
Morphine 1g 3g 5g 250g 1000g
Opium 10g 30g 50g 1000g 4000g
Heroin 1g 3g 5g 250g 1000g
LSD 0.0008gor 4 doses 0.003gor 15 doses 0.005gor 25 doses 0.5g 2g
N-BOMes 0.0008gor 4 doses 0.003gor 15 doses 0.005gor 25 doses 0.5g 2g
PCP 1g 3g 5g 250g 1000g
Psylocibin (Magic Mushrooms) 0.04g or 4 doses 0.15g or 15doses 0.25g or 25 doses 25g 100g
Tetrahydro-cannabinols (THC) 1g 3g 5g 500g 2000g
JWH Synthetic Cannabinols 10g 30g 50g 1000g 4000g
GHB 10g 30g 50g 1000g 4000g
Cathinone (Mcat, Meow) 1g 3g 5g 500g 2000g

Aggravating circumstances

Supply to children or manufacture in presence of children

Selling, supplying, trafficking, manufacturing or cultivating prohibited drugs around children is a much more serious crime and will lead to much higher penalties if you are convicted. The child will not normally be blamed or held responsible for being involved with drugs or controlled plants.

Supplying a controlled drug to a child under 16 years old is an offence with penalties up to 25 years 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.

Being involved in enhanced indoor cultivation in the presence of a child carries a maximum penalty of up to a $660,000 fine and/or 24 years imprisonment depending on how many plants are being grown.

Cannabis cautioning scheme

In NSW, since 2000, the police have operated a cannabis cautioning scheme that gives police a discretion or choice to let you go with a caution, if you are caught with only a small amount of cannabis.

You are only eligible to be given a caution if you have possession of 15 grams or less of cannabis and not have any previous convictions for violent or drug or sexual assault related offences.

You do not have a right to a caution if you are caught with less than 15 grams of cannabis. Police do not have to give you a caution. This means it is sensible to be polite to police officers if you are caught with less than 15 grams of cannabis, so that police are more likely to give you an caution rather than charging you with possession and prosecuting you in court.

You can only be cautioned twice and on the second time you will have to attend a compulsory Alcohol and Drug Information Service (ADIS).

Difference between decriminalisation and legalisation

Cannabis is NOT legal in NSW. It has NOT been decriminalised in NSW. This means that if you get caught with cannabis you are still at risk of being taken to court and fined or even imprisoned. You cannot be cautioned if you are caught supplying or selling cannabis.

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 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.

Common synthetics

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

Are synthetics legal?

In NSW there is now a law that automatically imports 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, supply or use without authorisation. This law means that synthetics can be quickly added to the Poisons Standard by the Australian Government and then become illegal to possess or supply in NSW.

The new law sets out criminal offences for the supply, sale, and possession of prohibited substances.

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.

Penalties

If you sell, supply or manufacture any substance which has substantially the same chemical effect as substance listed in Schedule 9 (prohibited substances) of the Standard for the Uniform Scheduling of Medicines and Poisons(SUSMP), without authorisation you are committing an offence. This applies to all drugs in schedule 9 which are not already classed as a prohibited drug under NSW laws.

Maximum penalty: $2200 and/or imprisonment for 2 years.

If you possess or obtain a substance which has substantially the same chemical effect as a prohibited substance listed in Schedule 9 (prohibited substances) of the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP), without authorisation you are committing an offence. This applies to all drugs in schedule 9 which are not already classed as a prohibited drug under NSW laws.

Maximum penalty: $2200 and/or imprisonment for 1 year.

In NSW it is now also illegal to advertise, sell or manufacture any substance that has a ‘psychoactive’ effect. This law is designed to prevent people from developing and marketing new synthetic drugs.

It is a very broad law designed to apply to any drugs which affect a user by causing hallucinations or changes to their movements, thinking, behaviour, perception, awareness or mood which haven’t otherwise been made illegal or listed in the Standard for the Uniform Scheduling of Medicines and Poisons.

Maximum penalty: $2200 and/or imprisonment for 2 years.

Searching and drug detection

General search powers

A police officer may stop and 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 prohibited drug or plant or that you have possession of anything connected to an offence.

Police can search you or your property if:

  • they suspect on reasonable grounds that you have a drug in your possession;
  • they suspect on reasonable grounds that you have possession of things related to an offence, like a weapon or stolen goods in your possession;
  • 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.

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 conducting a search can ask you to open your mouth or shake out your hair, but this does not authorise police to use force you to open your mouth without an order as this is considered an intimate search. You can be fined $550 for refusing to comply.

Strip searches

Police can strip search you if they suspect on reasonable grounds that such a search is necessary to secure evidence and that the circumstances are urgent and serious because if police do not search you immediately you might try to conceal or destroy evidence. If you are asked to strip so they can search you must follow their directions to remove the items of clothing that they ask you to take off.

Children under 10 years old cannot be subject to a strip search.

Teenage children between the ages of 10 and 18, and people with impaired intellectual functioning (an incapable person) can be strip searched, but a guardian should witness the search, unless it is not reasonably practical in all the circumstances.

Police should not strip search you in public, and 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.

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 wish 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 perform a procedure on an incapable person (e.g. mentally disabled, 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 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. 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 14 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 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.

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.

Drug premises

There are a specific set of laws that relate to premises (houses, flats, basements, cellars, garages, sheds, farms, offices or factories) that are being used for the purpose of supply, manufacture or cultivation of prohibited drugs or plants.

Premises can also include your car or other vehicle.

Drug premises are any premises that are being used for the supply or manufacture of prohibited drugs, or cultivation of prohibited plants by enhanced indoor means (such as a hydroponic setup). A premises can be ruled to be a drug premises by a court even if no drugs or plants are found there.

The law makes it easier for police to charge any person found on or entering a drug premises.

The property may be considered a drug premises if it is guarded by people keeping lookout, or there are sophisticated alarm and security systems.

Other evidence of a property being a drug premises could be syringes, weapons, large amounts of money or computer documents that indicate that the property is being used to manufacture or cultivate or supply drugs.

Police and the court will also be suspicious about:

  • generators that are always running;
  • an unusual numbers of fans, or air vents;
  • blacked out windows;
  • growing chambers;
  • powerful electric lights and heaters;
  • cannabis seeds or cuttings; and
  • nutrients and fertilisers which are normally associated with growing marijuana.

If you are found on or are found entering or leaving the drug premises you are guilty of an offence unless you can prove you have a lawful reason or lawful excuse. First time offenders will be tried in the Local Court, while second offenders will be tried in the District or Supreme court, where you are much more likely to be sentenced to jail for longer. People charged with entering, leaving or being on drug premises are usually fined somewhere in the region of $300-$750.

Maximum penalty:

    • for a first offence – $5500 and/or imprisonment for 12 months.
    • for a second or subsequent offence – $5500 and/or imprisonment for 5 years.

A person who is the owner or occupier of any premises and who knowingly allows the premises to be used as drug premises or a person who organises the premises to be used as a drug premises is guilty of an offence.

Maximum penalty:

    • for a first offence – $5500 and/or imprisonment for 12 months.
    • for a second or subsequent offence – $5500 and/or imprisonment for 5 years.

Where the use of the premises as a drug premises exposes a child under the age of 16 to prohibited drugs or plants, and the owner or occupier knows the child is being exposed, the penalties are increased.

Maximum penalty:

    • for a first offence – $6600 and/or imprisonment for 14 months.
    • for a second or subsequent offence – $6600 and/or imprisonment for 6 years.

If police have reasonable grounds to believe that the premises is being used as a drug premises then they can apply to the court for a search warrant which gives them the power to raid the house, search and detain any person or anything found at the premises.

It is an offence to stop or obstruct a police officer from searching the premises, or to give a warning or alarm to other people on the premises if the police have a warrant.

Maximum penalty: $550 and/or imprisonment for 12 months.

Sniffer dogs

In NSW, 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

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?

A NSW Court has held that 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 another 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?

In NSW sniffer dogs can only be used for random drug detection of people entering, leaving or being in the following places:

  • in pubs, clubs and licensed places where alcohol is served;
  • at entertainment events such as sports matches, festivals, concerts, dance parties and street parades;
  • on public transport and stations;
  • at tattoo parlours;
  • and any public place in the Kings Cross precinct in Sydney.

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.

Drug and drink driving

General information

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 certain specified drugs in your oral fluid, or blood, is an offence.

Driving includes attempting to drive a vehicle, 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;
  • turn on the headlights;
  • engage the gears; or
  • put the keys in the ignition.

All drivers in NSW 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 illness, injury or incapacity must report as soon as practicable after becoming aware of the impairment.

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 a health practitioner has assessed you.

For example, if you are stabilised on methadone or buprenorphine for 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.

If you are driving or have stopped in a road related area (such as a freeway service centre or truck rest stop), NSW police have the power to request to see your driver’s licence and to ask the names and addresses of the driver and passengers in your vehicle.

It is an offence to refuse to provide your licence or to state your name and address if requested.

Maximum penalty: $2200.

In NSW if you are caught 3 times for a major traffic offence (including drink or drug driving) within 5 years you must be declared a habitual traffic offender and can be banned from driving for life. If you are declared a habitual traffic offender you will be banned from for 5 years unless the court shortens or lengthens the ban. The minimum disqualification period is 2 years and the maximum period is life disqualification.

This disqualification period is in addition to any other disqualification period imposed by the court for the third offence.

Other major traffic offences that can be counted under this rule include:

  • driving at a dangerous speed or in a dangerous manner;
  • driving recklessly, or at speed or in a dangerous manner while engaged in a police pursuit;
  • furious driving, reckless driving, menacing driving, negligent driving where death or grievous bodily harm is occasioned;
  • drink and drug driving offences;
  • fail to stop and give assistance in an accident involving death or injury;
  • driving whilst disqualified, cancelled, suspended or refused;
  • a conviction for an offence of exceeding the speed limit by more than 45km/h; or
  • a conviction for unlicensed, never licensed.

The Court when determining the period of disqualification will look at the seriousness of the offences, whether they were reckless or intentional, whether other people were killed, harmed or injured or placed at risk and whether you showed remorse or understanding of your behaviour and chances of rehabilitation.

You cannot appeal a habitual traffic offender declaration, but the court can invalidate (quash) the declaration if it thinks that the consequences of the declaration are disproportionate or unjust in all the circumstances of the person’s driving record or will place unfair hardship on the offender.

The Roads and Maritime Services Authority is required to give you a warning that you may be declared a habitual traffic offender if you offend a third time, if you already have 2 major traffic convictions.

For mid range and high range drink driving offences your licence will be suspended by police on the spot. Courts will then impose a longer period of disqualification if you are convicted. They will normally impose the default period automatically, but can reduce or lengthen this period. The Court cannot reduce the period of disqualification any less than the minimum period set by law.

If you are convicted of drink or drug driving, you may have to undergo a drink and drug driving awareness course before you can get your license back.

In NSW a voluntary interlock program has operated since 2003. 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.

Under the interlock program, a person convicted of certain high range drink driving offences can ask the Court to impose an interlock condition on his or her licence, when being sentenced. If the Court finds that the person is eligible for participation in the interlock program, the Court can make an order that will result in a reduction of the disqualification period if the person successfully complies with the requirements of the interlock program. This means that you may be able to return to driving sooner if you can afford to pay for the interlock and comply with the requirements of the program.

You will have to pay for the Interlock to be fitted to and removed from your vehicle, for monthly rent of the interlock device and for it to be serviced (usually at monthly intervals). You will also have to pay for a interlock driver’s licence and a compulsory drink driving counselling session with a doctor. All up an participation in the interlock scheme can cost as much as $3500 over a year. Subsidies to help you cover the cost of the interlock may be available if you are a concession card holder.

For more information on the NSW interlock scheme see:

http://roadsafety.transport.nsw.gov.au/stayingsafe/alcoholdrugs/interlock/

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 alcohol or 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 erratically, dangerously or recklessly. They will almost certainly test you if you crash.

Driving under the influence of alcohol or any other drug is an offence:

Maximum penalty:

    • for a first offence – $2200 and/or imprisonment for 9 months and 6 months minimum disqualification; 12 months default disqualification.
    • for a second or subsequent offence – $3300 and/or imprisonment for 12 months and 12 months minimum disqualification; 3 years default disqualification.
    • for a person who is under the influence while supervising a learner driver: $2200.

Drug driving

It is an offence to drive with a “prohibited illicit drug” (cannabis, speed or ecstasy) present in your saliva, blood or urine.

As well as random breath testing for alcohol, police in NSW 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 for the presence of THC (cannabis), methylamphetamine (speed, ice, crystal meth), and MDMA (ecstasy).

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. If you are prohibited from driving by the police you cannot drive for 24 hours even to pick up your car the next day.

Maximum penalty:

    • for a first offence – $1100 and 3 months minimum disqualification; 6 months default disqualification.
    • for a second or subsequent offence – $2200 and 6 months minimum disqualification; 12 months default disqualification.

It is also an offence to have cocaine or morphine (which can include heroin) in your blood or urine. The police don’t have to prove that the drug impaired you or actually affected your driving.

There is a defence available if you are detected with morphine in your blood or urine if you can prove that the morphine is due to the fact that you were using a morphine-based drug for medicinal reasons.

You must prove either that the substance:

  • was prescribed by a medical practitioner and taken according to the practitioner’s instructions; OR
  • it was a codeine product that was purchased in a pharmacy and taken according to the manufacturer’s instructions on the container.

If you cannot prove that the morphine was taken for medical reasons, or if you have cocaine in your blood or urine you can be found guilty of an offence.

Maximum penalty:

    • for a first offence – $1100 and 3 months minimum disqualification; 6 months default disqualification.
    • for a second or subsequent offence – $2200 and 6 months minimum disqualification; 12 months default disqualification.

Drink driving

It is an offence to drive with a certain “concentration of alcohol” in your breath, blood or urine. The specific concentrations of alcohol and the respective penalties are set out in the table below.

Blood Alcohol Concentration (BAC) Level First offence Second or subsequent offence
Novice:0.00g – 0.019g $1100Min. disqualification: 3 monthsDefault disqualification: 6 months $2220Min. disqualification: 3 monthsDefault disqualification: 6 months
Special:0.02g – 0.049g $1100Min. disqualification: 3 monthsDefault disqualification: 6 months $2220Min. disqualification: 3 monthsDefault disqualification: 6 months
Low:0.05g – 0.079g $1100Min. disqualification: 3 monthsDefault disqualification: 6 months $2220Min. disqualification: 3 monthsDefault disqualification: 6 months
Middle: 0.08g – 0.149g $2220 and/or imprisonment for 9 months Min. disqualification: 6 monthsDefault disqualification: 12 months $3300 and/or imprisonment for 12 monthsMin. disqualification: 12 monthsDefault disqualification: 3 years
High: 0.15g or more $3300 and/or imprisonment for 18 monthsMin. disqualification: 12 monthsDefault disqualification: 3 years $5500 and/or imprisonment for 2 yearsMin. disqualification: 2 yearsDefault disqualification: 5 years

Failure to take test

It is an offence to fail to take a breath, oral fluid or sobriety test.

Maximum penalty: $1100

It is an offence to fail to take a breath analysis test (at the police station).

Maximum penalty:

    • for a first offence: $3300 and/or imprisonment for 18 months with 12 months minimum disqualification; 3 years default disqualification.
    • for a second offence: $5500 and/or imprisonment for 2 years with 2 years minimum disqualification; 5 years default disqualification.

It is an offence to refuse to provide blood, oral fluid or urine samples.

Maximum penalty:

    • for a first offence: $3300 and/or imprisonment for 18 months with 6 months minimum disqualification; 3 years default disqualification
    • for a second offence: $5500 and/or imprisonment for 2 years with 12 months minimum disqualification; 5 years default disqualification

Normal Penalties

Penalties for drink driving are severe. In most cases, you will have to pay a fine and you will also be disqualified from driving for a period of time – from a few months to several years. In serious cases, or for repeat offences, you could go to jail.

The penalty and disqualification will depend on the type of drivers license you hold, the amount of alcohol or drug involved, whether your driving was dangerous and whether it is your first offence. For example, driving with an illicit drug present in your blood, saliva or urine carries a maximum fine of $1,100 with an default disqualification of your right to drive for 12 months, (this period can be increased or reduced, but cannot be reduced below 6 months) for a first offence.

For a second offence, the maximum fine is $2200 and the disqualification is 3 years (this can be increased or reduced, but cannot be reduced below 12 months). Offenders found guilty of this offence are usually fined between $300 and $1,000, with the average fine being about $500.

A first offence of driving under the influence can get you up to 9 months in jail and 12 months disqualification. For driving under the influence, a higher proportion of offenders go to jail. Those who are not imprisoned can expect to be fined between $300 and $2,000, with the average fine being about $750.

Paraphernalia, fits (needles & syringes), equipment

Possession

It is legal to possess fits in NSW. Although it is legal to receive a fit from an authorised needle & syringe program (NSP), it is illegal to pass it on to someone else. It is also illegal to bring a syringe into a prison, even if you don’t intend to give it to a prisoner and even if you leave it in a locker while you are visiting.

Possession of equipment used for taking a prohibited drug is an offence. This does not include hypodermic needles or syringes but could include other equipment used to inject (e.g. belt, spoons, swabs).

Maximum penalty: $2200 and/or imprisonment for 2 years.

In practice, fines imposed for possession of equipment are usually in the range of $100-$500, with an average fine of about $200.

It is an offence to sell, supply or display a water pipe, bong, ice pipe or crack pipe. Bongs are legal to possess if you use them only to smoke tobacco, not cannabis.

Maximum penalty: $2200 and/or imprisonment for 2 years.

In practice, fines imposed for possession of equipment are usually in the range of $100-$500, with an average fine of about $200.

Possession of used needles or syringes, while not illegal, could be used as evidence of self-administration, which is a criminal offence in NSW. You are more likely to be charged with self-administration if you admit to having used the equipment to use illegal drugs.

The police are unlikely to charge you with possession of drugs on the basis of minute quantities of drugs present in used fits. However, a used fit may be used as evidence that you have committed the offence of self-administration.

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.

Taking a syringe into a prison (even the reception area) or attempting to supply a syringe to an inmate is a summary offence with a maximum penalty of 2 years imprisonment.

Disposal of fits

A person who leaves any litter, including fits, in a public place is guilty of an offence. Tossing a syringe amounts to “aggravated” littering which is a more serious offence than dropping ordinary rubbish. It is illegal in NSW to dispose of used injecting equipment in the household waste.

Penalties

The maximum fine for littering syringes is $3,300. Police (or local government rangers) would usually issue an on-the-spot fine; you can choose to take this to court if you think you are not guilty or the fine is too high. There is a $1100 penalty for being found guilty of disposing of used injecting equipment into the household waste.

Sex, health and the law

Consent

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.

Sex work

Brothel work

It is legal to undertake sex work in a brothel that has an approved development application from the local council. Workers and clients must be at least 18 years of age.

In NSW it is an offence to:

  • advertise that premises are being used for the purposes of prostitution;
  • offer or provide sex work in premises that are advertised as massage services, saunas, physical exercise, or photographic services. This includes workers in massage clinics who do hand relief; or
  • coerce or unduly influence a person to either do sex work, or hand over any money earned from sex work.

Although it is no longer an offence for owners, managers or other people employed in brothels to live off the earnings of a prostitute, it is still an offence for anyone else to live off the earnings of a prostitute.

Penalties

Providing sex services in premises that are advertised as something else, (such as massage parlours, baths, photographic premises or studios) is an offence:

Maximum penalty: $550 and/ or 3 months imprisonment.

Advertising a premises as a brothel is an offence:

Maximum penalty: $660 and/or 3 months imprisonment.

Advertising for prostitutes is an offence:

Maximum penalty: $1,100 and/or 3 months imprisonment.

Knowingly living wholly or part on the earnings of prostitution (this applies to pimps, not to sex workers who live off their own earnings) is an offence:

Maximum penalty: $1,100 fine and/or 12 months imprisonment.

Coercing, forcing or unduly influencing another person causing or inducing that person to commit an act of prostitution or making a person give up any proceeds of an act of prostitution is an offence:

Maximum penalty: $5,500 fine, 12 months imprisonment.

Allowing premises to be used for prostitution when it is being advertised as something else is an offence:

Maximum penalty: $5,500 fine, 12 months imprisonment.

Procuring (encouraging or persuading or offering gifts or payment) a person for prostitution is an offence:

Maximum penalty: 7 years imprisonment (or 10 years if drugs, fraud, violence etc. are to force a person to be a prostitute)

Knowingly allowing a person under 18 to provide sex work is an offence:

Maximum penalty: 10 years imprisonment

Home sex work

If you work alone from your home it is considered that you are working in a brothel. Therefore all the laws relevant to brothels apply, except that if you are working from home on your own you do not have to apply for planning permission from the local council.

Street sex work

It is illegal to solicit a person for the purposes of prostitution in:

  • a church, school or hospital; or
  • a road or road-related area (which can include a footpath) near or within view of a dwelling, church, school or hospital.

It is also an offence to solicit a person for the purpose of prostitution in a manner that harasses or distresses the other person, in or near, or within view from, a house, school, church, hospital or public place.

While it is technically legal to solicit in an area that is not one of those places referred to above, or near or within the view of such a place, you must keep in mind how broadly the police may interpret the words ‘near’ and ‘within view of’.

‘Soliciting’ may include any conduct (whether blatantly obvious or quite subtle) that amounts to an invitation of prostitution. Merely agreeing to do an act of prostitution, or being willing to do a job if someone asks you, is NOT soliciting. Both sex workers and clients can commit the offence of soliciting.

It is illegal to take part in an act of prostitution:

  • in, or within view from, a school, hospital, church, or public place;
  • within view from a dwelling (you could be guilty of this offence if you were working from home or a brothel and the neighbours could see you from their place);
  • in a car in or within view from a school, hospital, church, or public place;
  • within view from a dwelling. It does not matter if you cannot be seen from outside of the car.

Penalties

Although both sex workers and clients can commit the offence of soliciting, workers get charged more often than clients. Sex workers are often caught by undercover police officers. While there is no defence of “entrapment”, a sex worker may be able to beat the charge by arguing that the undercover officer and not the sex worker, was doing the soliciting.

Soliciting in a place where such activity is prohibited is an offence:

Maximum penalty: $660 or imprisonment for 3 months.

Soliciting in a manner that harasses or distresses another person is an offence:

Maximum penalty: $880 or imprisonment for 3 months.

Public acts of prostitution are an offence:

Maximum penalty: $1,100 or 6 months imprisonment.

These are all summary offences, which means that they are dealt with in the Local Court.

Sex workers who get caught soliciting are usually fined between $250 and $500, with the average fine being about $250. Clients caught soliciting usually receive slightly higher fines (average $400), although they are also more likely to have their charges dismissed without a conviction or penalty. Public acts of prostitution generally attract slightly higher fines than soliciting.

Blood borne viruses (BBVs) & sexually transmissible infections (STIs)

Notification and testing requirements

In NSW:

  • Hepatitis A, B, C, D and E;
  • HIV;
  • AIDS –

are all notifiable diseases, which means that your doctor, nurse, pathologist or hospital must notify the Government if you are diagnosed (test positive) with one of these diseases.

Notification of HIV infection is by code number only. It is an offence for a health officer or medical practitioner to disclose your name, without a lawful court order.

Maximum penalty: $11,000 and/or imprisonment for 6 months.

In most cases it is unlawful to test without an individual consenting and being fully informed about the procedure. The Director-General of the Department of Health may require that a person undergo a medical examination, including a blood test, if the Director-General reasonably believes that a person is HIV positive. You cannot have a blood sample taken without your consent or the order of a Director-General.

It is an offence to refuse to be tested for HIV.

Maximum penalty: $5500.

It is an offence for the medical practitioner or health officer to fail to notify a diagnosis of a transmissible disease.

Maximum penalty: $5500.

It is an offence for an infected person to fail to give an authorised health officer details when requested.

Maximum penalty: $5500.

It is a more serious offence to give false information to an authorised health officer.

Maximum penalty: $11,000 and/or imprisonment for 6 months.

Public health law offences relevant to BBVs and STIs

People with Hepatitis, HIV or AIDs must take reasonable precautions in public places to prevent the spread of those diseases. This means that if they are injured and are bleeding they need to take steps to prevent other people coming into contact with their blood.

Maximum penalty: $11,000 and/or imprisonment for 6 months.

NSW has developed guidelines for the Management of People with HIV Infection Who 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 public health order by an authorised medical practitioner:

  • 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.

A public health order can last up to 28 days (but only 3 days in the case of HIV/AIDS). However the Government can apply to the Administrative Decisions Tribunal to extend the order for 6 months.

It is an offence to fail to comply with a public health order.

Maximum penalty: $11,000 and/or imprisonment for 6 months.

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 charge.

Criminal offences relevant to BBVs and STI

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 sexually transmissible infection (which includes HIV) it is your responsibility to take precautions to ensure that you minimise the risk of infecting others.

It is an offence for a person who knows they have a sexually transmissible infection to have sexual intercourse with another person unless, before intercourse takes place, the other person has been informed of and voluntarily accepts the risk of contracting the sexually transmissible medical condition. This means you must disclose your HIV or HEP C status to all your sexual partners.

Even if you take precautions such as using a condom, you must still inform your partner (although using a condom might be a defence to this charge). This rule does not cover such activities as using the same needles when injecting.

Knowingly putting another person at risk of contracting a sexually transmissible infection is an offence.

Maximum penalty: $5500.

It is an offence for an owner or a manager or a brothel to allow a worker to have sex for the purposes of prostitution if the worker is committing an offence as outlined above.

Maximum penalty: $5500.

You may also be guilty of a more serious offence such as recklessly inflicting grievous bodily harm if you know or suspect you have a STI, but fail to take precautions and infect your partner. The offence would be even more serious if you deliberately set out to infect someone. These offences may be committed not just by sexual activity but also by sharing needles.

At criminal law in NSW a person who maliciously causes another person to contract a “grievous bodily disease” (which includes HIV and could include HEP C), is guilty of a crime.

Maliciously infecting (that is, deliberately infecting with intent to harm) another person with a “grievous bodily disease” is an offence.

Maximum penalty: 25 years imprisonment.

Recklessly inflicting grievous bodily harm is an offence.

Maximum penalty: 10 years imprisonment.

Intentionally inflicting grievous bodily harm is an offence.

Maximum penalty: 25 years imprisonment.

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

In New South Wales, the Anti-Discrimination Act prohibits the discrimination or vilification of an individual based on their:

  • race;
  • sex (including pregnancy);
  • sexual orientation;
  • gender;
  • marital status;
  • disability;
  • age; or
  • HIV/AIDS status.

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 NSW 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.
  • 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.

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 NSW Anti-Discrimination Board.

The Act also prohibits sexual harassment and racial vilification. Vilification is a public act (including speaking, writing and broadcasting) which incites hatred towards, serious contempt for, or severe ridicule of a person or group of people on the basis of their race, colour, ethnic or national origin.

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.

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 Anti-Discrimination Board in NSW. Not all unfair treatment will be considered to be discrimination.

The President of the Anti-Discrimination Board 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 Administrative Decisions 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.

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.

For more information on addressing discrimination please refer to AIVL’s Know Your Rights webpage at http://www.aivl.org.au/knowyourrights.

‘The Law’

Drug Misuse and Trafficking Act 1985 – Defines prohibited substances and prohibited plants which are listed in schedule 1 of the Act. Sets out offences of possession, administration (use), supply, trafficking, manufacture and cultivation. Sets out drug premises offences and procedures.

Sets out rules for the management and operation of medically supervised injecting centres.

Defines psychoactive substances to capture new and emerging synthetic substances.

Poisons and Therapeutic Goods Act 1966 – Incorporates the SUSMP as the NSW Poisons List.

Defines drugs of addiction as substances listed in schedule 8 of the SUSMP.

Defines schedule 9 substances to be any substance listed in schedule 9 of the SUSMP.

Restricts the possession and supply of drugs of addiction.

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.

Law Enforcement (Powers and Responsibilities) Act 2002 – sets out police investigation, search and arrest powers.

Road Transport Act 2013 – Part 5.1 sets out drink and drug driving offences and part 7.2 sets out power to request a driver or passenger to produce identification and state their name and address.

Summary Offences Act 1988 – regulates prostitution and sets out offences for introducing drugs or needles and syringes into places of detention.

Crimes Act 1900 – Sets out offences of grievous bodily harm, sexual assault and rape, child prostitution and sexual servitude.

Public Health Act 2010 – defines notifiable diseases and scheduled medical conditions and procedures and powers for imposing public health orders.

Protection of the Environment Operations Act 1997 – Part 5.2A sets out the offence of aggravated littering for unsafe disposal of fits and sharps.

Anti-Discrimination Act 1977 – Sets out NSW discrimination law.

Drug Misuse and Trafficking Regulation 2011 – Regulates precursor supply and possession.

Poisons and Therapeutic Goods Regulation 2008 – Sets out offences for the unauthorised prescribing of drugs of addiction and for the possession of hallucinogens.

Regulates prescriptions and supply by pharmacists and medical practitioners.

Public Health Regulation 2012 – sets out additional requirements for the notification of notifiable diseases and scheduled medical conditions.