Tasmania

Which Drugs Are Illegal?

In Tasmania illegal drugs are called controlled drugs. Illegal plants are called controlled plants.

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

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

Controlled Drugs Controlled Plants
  • Heroin
  • Cannabis
  • THC cannibinols
  • Cathinone (Mephedrone, MCAT, meow)
  • PCE
  • PCP
  • LSD
  • Ecstasy/MDMA
  • DMT
  • GHB
  • Methamphetamine (ice/speed)
  • Mescaline
  • Morphine
  • Methadone
  • Ketamine
  • Amphetamine
  • Dexamphetamine
  • Buprenorphine
  • Cocaine
  • Coca Leaf
  • This list does not contain all controlled drugs. The full list of all controlled drugs can be found listed in the Misuse of Drugs Act 2001 under the heading ‘Schedule 1 – Controlled drugs’
  • Cannabis
  • Opium poppies
  • This list does not contain all controlled drugs. The full list of all controlled drugs can be found listed in the Misuse of Drugs Act 2001 under the heading ‘Schedule 1 – Controlled plants’.

General Information

Knowledge of the particular drug

For offences involving controlled drugs or controlled plants in Tasmania the police generally have to prove that you knew or should have known that the drugs or plants were controlled drugs or controlled 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 hold out or pass off a substance or plant as a controlled drug or plant, for the purpose of supply, you can still face the same penalties as if it were a controlled drug. This means, for example that you can be charged with supplying cocaine, even if you are trying to rip someone off by supplying icing sugar.

Mixtures of drugs and trafficking

A mixture of substances which contains an amount of a controlled drug will be regarded as an controlled 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.

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

Tasmanian 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 controlled drug when charging you.

The purity of the drugs is not relevant when determining what quantity of drug you possess and therefore what charge you face in court (e.g., possession for personal use or trafficking).

This means that it doesn’t matter how pure your drugs or drug mixtures are. The prosecution only has to show that the weight of the pills, tablets, caps, points, joints, or other mixture is greater than the trafficable quantity for you to be charged with trafficking.

Aggregated quantities of drugs and trafficking

Amounts of different drugs can be added (aggregated) together so that you can face higher penalties for drug offences even if you possess, supply, traffic or manufacture small quantities of a lot of different drugs.

The law specifies that where the required fraction of each drug you are found with, adds up to a whole number greater than 1, you will be charged with an offence based on a higher aggregated quantity. For example, if you are charged with trafficking a number of different drugs, the prosecution will calculate the ‘required fractions’ of the quantity of each pure drug by dividing the amount of the pure drug you traffic with the smallest specified ‘trafficable’ or ‘commercial’ or ‘large commercial’ quantity.

For example if you traffic 20g of heroin and the trafficable quantity is 25g the prosecution will divide 20g by 25g to give a fraction of 4/5. If you are also found trafficking 15g of ice where the trafficable quantity is 25g the prosecution will divide 15 by 25 to give a fraction of 3/5. The prosecution would then add 4/5 plus 3/5 to give 7/5 or 1&2/5 which is greater than 1. So you would be charged with a single offence of trafficking a trafficable quantity of a controlled drug, even though separately the quantities were each less than the trafficable quantity.

Does the harm of the drug matter?

No. The perceived harm potential of a drug is NOT relevant to determining which offence you will be charged with (or the quantity you were alleged to traffic). A court might take your motives and aggravating circumstances (see ‘Aggravating circumstances’ section below) into account when sentencing you for an offence, but certain controlled drugs should not be treated as more or less harmful than others.For example, if you possess 5g of heroin, and your friend possesses 5g of cocaine in the same circumstances, you should both be subject to the same charge of trafficking and receive a similar penalty. You should not be punished more severely for possessing drugs like heroin or ice, which are considered to be ‘really harmful’, ‘more evil’ or ‘harder drugs’ than for ‘party drugs’ like cocaine or ecstasy.

You should not be punished more severely for some drugs than for others based only on a ‘scale’ of the perceived harm of different drugs.

General charges for being involved in a drug offence

Generally, if you help or assist someone else to plan or carry out a drug offence, you are also committing an offence by being involved. You can be charged with:

  • taking part in an offence if you are involved in the offence, even if you don’t make any profit from the offence (e.g., you pack or transport or manufacture or cultivate an illegal drug or plant; or provide finance or direction for the offence);
  • being an accessory to an offence if you are involved in the offence without directly handling or dealing with the drugs (e.g., by being security or a guard or a look out for a drug deal);
  • aiding and abetting or inciting an offence if you encourage or induce or provide incentives for a person to commit a drug offence (e.g., tell someone they can use your shed to grow cannabis in); or
  • conspiracy to commit, or attempting to commit an offence if you intend to, or plan, or make preparations, or try to commit an offence.

Generally police will not charge you with additional charges such as being an accessory to supply if you are a user and arrange to score off a dealer for your own use. However you can still be charged with possession or trafficking depending on how much you buy and where you buy it.

Possesion

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

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 your 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 joint possession

In other States and Territories 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. Tasmania has deemed possession laws which means that shared drugs can be easily attributed to people who have any form of control even if it is not exclusive.

Custody and deemed possession

In Tasmania you can be charged with possession of a controlled drug if:

  • the drug is physically located anywhere on land or premises occupied by you;
  • the drug is enjoyed (‘used’) by you in any place
  • the drug is in your “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 Tasmania to show you knew you had an illegal drug. This means that you can still be charged and convicted if you didn’t have knowledge about the presence of drugs on your premises.

This rule is called ‘deemed possession’. It creates a presumption which will mean that if police find any drugs in your property or premises the court will automatically believe the drugs are yours unless you can prove that you didn’t know about them.

This means it will be much harder for you to prove to the Court that drugs weren’t in your possession if they are in your house or shed or garden, even if they are shared, or belong to someone else.

If you are caught with larger amounts of drugs you will be deemed to possess the drugs for the purpose of supplying or selling 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 controlled drugs or plants.

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.

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.

However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.

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’.

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: $6500 or 2 years imprisonment.

Use and Administration

Use (self-administration) or attempted use of a controlled drug is an offence.

It is also an offence to administer drugs which you have obtained lawfully, such as prescription drugs like codeine, Valium (diazempam), Dexamphetamine, benzodiazepines, buprenorphine and methadone without following the doctor’s or pharmacist’s directions for use. This means that it is illegal to inject methadone, because prescriptions for methadone are based on an oral dose. 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: $6500 or imprisonment for 2 years.

Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs). Sometimes the police don’t bother to charge people with self-administration, even if an admission has been made. However, you should be careful of what you say to the police.

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 possessing drugs without speaking to a lawyer!

In Tasmania if you administer a drug to another person with you could be charged with the offence of supply. In Tasmania supply has a different meaning to other states. Supplying in Tasmania means to administer a controlled drug or plant to someone else. It also includes offering or agreeing to administer yourself or someone else. Administration can include taking a drug orally or by inhaling or ingesting smoke or injecting a drug This means it is illegal to inject another person even if they have asked you to or given you consent.

Supplying a controlled drug or controlled plant to another person is an offence.

Maximum Penalty: $ 13,000 or 4 years imprisonment

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 attendance at overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.

Police will not normally attend an overdose unless:

    • they are requested to do so by ambulance paramedics or medical personnel (because ambulance officers cannot control people present at the scene or due to a threat of violence);
    • a death has occurred or there are suspicious circumstances (like attempted murder), or
    • they were the first on the scene or another person or bystander called the police separately.

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 Tasmania to obtain or attempt to obtain prescription drugs by lying or making false representations including by forging or altering a prescription.

Maximum penalty: $6,500 or imprisonment for 2 years.

Supply

It is an offence to supply or sell a controlled drug or plant.

As noted in the administration section above, in Tasmania supplying has a different meaning than in other Australian states.

Supplying is defined as an act of administering a substance either orally or by injecting or otherwise. It includes offering to help someone else get or take drugs.

Selling has a very broad definition and you could be guilty of an offence even if no drugs or money change hands.

Selling can include:

  • offering or agreeing to sell drugs, even if no deal ever takes place;
  • being knowingly concerned in selling drugs, for example, introducing someone to a dealer;
  • selling a legal substance which you claim is a prohibited drug, for example, selling aspirin and passing it off as heroin;
  • helping someone else take a drug;
  • pooling money and splitting up purchased drugs between the group of buyers; or
  • having drugs in your possession for the purpose of selling those drugs.

If you are caught with drugs in your possession, police are more likely to charge you with selling if they find things like scales, deal bags, and cash.

Because sharing a deal or helping someone score is part of drug-using culture, many users act as suppliers from time to time. A charge of selling can even rest on an offer to score on another person’s behalf or sharing your gear with other people. There are also a number of other charges that can be made in relation to selling and supply, including participating in supply and attempt or conspiracy to sell.

Selling or supplying a controlled drug or controlled plant is an offence.

Maximum Penalty: $ 13,000 or 4 years imprisonment.

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

Trafficking

It is an offence to sell, supply, prepare or transport a trafficable quantity of a controlled substance. Trafficking has a broad meaning in Tasmania. It covers any kind of activity associated with dealing or running a business selling drugs for commercial gain.

If you are found in possession of a trafficable quantity of drugs the court will automatically believe that you had an intention to sell the controlled plant or substance, or that you believed that another person intended to sell the substance.

Trafficking includes:

    • selling the substance;
    • preparing, packaging or separating the substance;
    • transporting or delivering the substance;
    • guarding or concealing the substance;
    • possessing the substance; or
    • importing the substance into Tasmania.

Trafficking a trafficable quantity of a controlled substance or plant –

Maximum penalty: 21 years imprisonment.

Trafficking Trafficable mixed quantity(grams)
Drug Maximum Penalty: 21 years imprisonment
Cannabis 1000g or 20 packages
Cannabis plants 20 plants
Cannabis oil 25g
Cannabis resin 25g
Amphetamine (speed) 25g or 20 doses
Dexamphetamine (Dexies) 25g or 20 doses
Buprenorphine 5g
2CB 25g or 20 doses
Cocaine 25g or 20 doses
Meth-amphetamine (Ice) 25g or 20 doses
Morphine 25g
Heroin 25g or 20 doses
LSD 0.0002g or 20 doses
N-BOMes 25g or 20 doses
Psilocin (Magic Mushrooms) 5g or 20 doses
JWH 250 5g or 20 doses

Importation

Tasmania has a separate law prohibiting the importation of controlled substances into Tasmania. This law operates in addition to Commonwealth importation and trafficking laws.

Maximum penalty: $6,500 or imprisonment for 2 years.

Manufacture

It is an offence to unlawfully manufacture or produce a controlled drug. Manufacturing has a wide meaning in Tasmania and refers to any process by which a substance is produced including refining, extracting or transforming a substance.

There are different penalties for manufacturing a controlled drug depending on whether the manufacture was done for the purpose of selling the drug or with the belief that someone else intended to sell the drug. If you are found manufacturing more than a trafficable quantity the court will automatically believe that you intended to sell the drugs, meaning you will face much higher penalties.

Manufacturing for personal use (with no intention of selling the controlled drug) is an offence:

Maximum penalty: $6,500 or imprisonment for 2 years.

Manufacturing with intent to sell or belief that someone else intended to sell is an offence.

Maximum penalty: 21 years imprisonment.

Cultivation

It is an offence to unlawfully cultivate controlled plant. Cultivation has a wide meaning in Tasmania and refers to any act of:

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

It also includes concealing or guarding the controlled plant and extracting products or substances from the controlled plant.

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

There are different penalties for cultivating a controlled plant depending on whether the cultivation was done for the purpose of selling the plant or plant products or with the belief that someone else intended to sell the plant or plant products. If you are found cultivating more than a trafficable quantity the court will automatically believe that you intended to sell the plants or their products meaning you will face much higher penalties.

Manufacturing with no intention of selling the controlled plant or products –

Maximum penalty: $6500 or imprisonment for 2 years.

Manufacturing with intent to sell or belief that someone else intended to sell the controlled plant or products.

Maximum penalty: 21 years imprisonment.

Aggravating Circumstances

Supply to children or manufacture in presence of children

Selling, supplying, trafficking, manufacturing or cultivating 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 18 is an offence with penalties up to 21 years imprisonment depending on the circumstances.

Getting a child to sell, pack, prepare, transport or guard drugs, is an offence with penalties up to 21 years depending on the circumstances.

Receiving Property or Proceeds From Unlawful Supply or Trafficking of Controlled Drugs

In Tasmania it is an offence to receive or possess any property or goods (houses, cars, weapons, money), which you know to have been obtained through an act of supply or trafficking of drugs. This is the case even if you do not receive the property, but try to conceal the fact that the property is connected to the proceeds or drug crime, or you try to sell or give the property away, knowing that the property is connected to drug crime.

Maximum Penalty: 21 years imprisonment.

Cannabis Diversion Scheme

Cannabis is illegal in Tasmania. However, the Police Diversion Program gives police the choice of diverting people found using or possessing less than 50 grams of cannabis or small quantities of other controlled drugs away from the judicial system into health assessment and treatment. The Police Diversion Program consists of three levels of diversion:

  • 1st Level Diversion – Cannabis Caution: Police may issue a caution to people found to be using or in possession of small amounts of cannabis for the first time.
  • 2nd Level Diversion – Brief Intervention: For anyone found using or in possession of small amounts of cannabis a second time, the police may issue a Drug Diversion Notice. This meansyou are required to attend a “brief intervention with an approved Drugand Alcohol Worker. If you fail to attend you will be prosecuted for the offence but no criminal conviction will be recorded.
  • 3rd Level Diversion – Assessment and Treatment: Anyone caught a third time using or possessing small amounts of cannabis or using or possessing small amounts of other illicit drugs(such as amphetamines, ecstasy or opiates) may be charged by the police or issued with a Drug Diversion Notice. This requires you toattend an assessment, follow up and counselling or other treatmentas agreed with an approved Drug and Alcohol Worker. No charges will be pursued in court and you will not be convicted as long as you attend appointments and comply with the requirement to complete the program.

Difference between decriminalisation and legalisation

Possession of cannabis is NOT legal in Tasmania and has NOT been decriminalised. You don’t have a right to receive a caution instead of being charged and summoned to court. In order to receive a caution you must admit to possession or use of the illegal drug. It is sensible to be polite and cooperative with police officers if you are caught small quantities of a drug, so that they are more likely to give you a fine rather than take you to court.

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’ which have come onto the streets but which are not well known to most drug consumers.

Synthetics are often marketed as ‘legal highs’, ‘herbal highs’, ‘designer drugs’, ‘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 (except JWH 250 which is a controlled drug)
  • Mephedrone/M-CAT (Cathinone)
  • Amped (synthetic cocaine)
  • Zoom
  • Cloud Nine
  • Ivory Wave
  • Pandora
  • Smiles

Are synthetics legal?

In Tasmania the Government is able to make an order importing the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) formerly known as the Australian Poisons Standard into Tasmanian law.The standard is a list of substances that the Australian government has restricted or made illegal for sale or use without authorisation. When the minister makes an order, all the substances which have been listed in the Australian Poisons Standard become controlled by Tasmanian law, and then the possession, use, sale and manufacture of many new synthetics can become criminal offences.

This means that synthetics can be quickly added to the Poisons Standard by the Australian government and then become illegal to possess or supply in Tasmania. 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 possess, obtain, sell, supply or manufacture any substance listed in schedule 8 or 9 of the Australian Poisons Standard without authorisation you are committing an offence.

Maximum penalty: $6500 or imprisonment for 2 years.

It is also an offence to sell or supply any new drug which has not been analysed by the Government for the purpose of deciding the drugs proper classification under Tasmanian law.

Maximum penalty: $6500 or imprisonment for 2 years.

Searching and Drug Detection

General search powers

A police officer may search you, your clothing or property which you have on you and may seize any thing they find, if the police officer has reasonable grounds to believe that you are holding a prohibited drug or plant, or you have possession of anything connected to an offence. They do not need a warrant.

Police can search you or your property (including your car) if:

  • they believe on reasonable grounds that you have a drug in your possession;
  • they believe 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; or
  • the police have a warrant or court order to search you.

What is a reasonable belief?

Reasonable belief is a complicated legal concept, and whether police were correct to believe they had a reasonable belief is a matter for the court to decide.

A reasonable belief is an honestly held belief that is based on more than a mere possibility or hunch.

There must be a series of facts which when objectively considered and assessed would give rise to a reasonable belief in the person that a situation exists. It is not relevant whether a reasonable person would have had the belief. It must be proved that the person (e.g. the police officer) who required the belief before he or she could lawfully act (by searching a suspect), actually held that belief.

This is what the court will consider when determining whether the police grounds to search you were based on a reasonable belief.

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 and later see you walk into a place where people use drugs, this might be enough to establish a reasonable belief that you are in possession of drugs.

The fact that you are a user alone will not be enough to form a reasonable basis for a belief 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 belief is proved to be unreasonable in court then the search might be considered to be illegal and any evidence of drug offences such as drugs, large amounts of cash, fits or paraphernalia might not be allowed to prove your guilt.

The court will examine what facts were the basis of the suspicion, and the source of those facts in the light of the whole of the surrounding circumstances.

It is important to remember that even if the search was illegal or the evidence illegally obtained, the court can still allow the evidence to be used, if it is in the public interest, or if the “desirability of admitting the evidence outweighs the undesirability of admitting such evidence”.

When considering the desirability of admitting illegally obtained evidence the court will weigh up several questions including:

  • whether the evidence is useful in proving something important or is key evidence in the proceedings;
  • the nature of the subject matter of the case and the relevant offence;
  • the seriousness of the offence and whether it was deliberate;
  • whether the evidence has been used before or is likely to be relied upon in a future case; and
  • the difficulty of obtaining the evidence legally or without contravention of an Australian law.

If the improperly obtained evidence is necessary for obtaining a conviction for a serious drugs offence the Court will be more likely than not to exercise its discretion to allow the improperly obtained evidence to be used in the case.

Conduct of searches

General or frisk searches

Police can frisk search you by asking you to remove your jacket and patting you down. If you refuse to be searched the police can arrest you and use force to search you.

Strip searches

Police can strip search you if they suspect on reasonable grounds that such a search is necessary and that the circumstances are urgent and serious. If you are asked to strip so they can search you, you must follow their directions to remove the items of clothing that they request you take off.

Police are not allowed to strip search you in public, but must make the search as private as the circumstances allow. A strip search can only be conducted by an officer of the same sex as you. Strip searches on children under 18 years of age must be done in the presence of a parent or guardian of the child. Police are not allowed to strip search children less than 10 years of age in any circumstances.

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. For children under 15 years old a support person or witness must be present to observe the search. Forensic searches cannot be performed on children under 10 years of age in any circumstances.

Forensic procedures are actually a category of procedures that are normally performed on suspects (such as in sexual assault cases) after arrest.

The procedures can include taking DNA samples, genital swabs or internal searches. Forensic procedures are divided into non-intimate and intimate procedures. The law on forensic procedures is very complicated, but police would not normally need to perform a forensic search on you for a drug offence, unless they believed you had swallowed a bag of drugs for trafficking.

Non-intimate procedures can often be authorised and performed by a police officer who has the rank of a Sergeant or higher. Any intimate forensic procedure must be performed by a medical practitioner.

Intimate forensic procedures include:

  • searching your cavities or making detailed external examination of your genitals or anus; scanning your body with an X-ray and taking samples of your pubic hair; anal, external genital or breast swabs; saliva, blood and urine samples; DNA samples; mouth scrapes or dental impressions.

Non-intimate procedures include:

  • taking samples of hair, fingernail or toenail scrapes, external swabs or washings, and taking fingerprints, hand prints, toe-prints and footprints.

Police must make sure that you give informed consent, which means that you must understand the how the search will be carried out, and the consequences of the search. Police cannot ask you to consent if you are under the influence of drugs or alcohol.

Don’t give consent to a forensic procedure without speaking to a lawyer!

Searches of vehicles

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, 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 believe on reasonable grounds that there is a breach or disturbance of the peace (such as a fight, domestic violence, house fire, out of control house party);
  • they believe on reasonable grounds that someone is at risk of being seriously injured in the premises; or
  • the police are pursuing a suspect or escapee.

Drug premises

An owner or occupier of a premises (houses, flats, basements, cellars, garages, sheds, farms, offices or factories) who knowingly permits the premises to be used for the purpose of using, administering, selling, trafficking, supplying, manufacturing or cultivation of controlled drugs or plants commits an offence.This means you can be convicted just for allowing your friends to smoke bongs on your back porch.

Maximum penalty: $6500 and/or imprisonment for 2 years.

Sniffer dogs

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

General (‘random’) 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 in possession of a controlled drug or plant 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?

Random sniffer dog drug detection is not considered to be a search. This is because the sniffing is done passively and is not a physical intrusion into a person’s privacy or property. For example, a sniffer dog that wanders past a suitcase with cannabis inside is not searching the suitcase. Police who ask a bus driver to pull over and let them put a dog in the luggage compartment are not conducting a search.

However, if the dog touches you before it sits down, or if the dog stays in contact with you or digs its nose into your pockets or forcefully bumps and nudges into you, this may be considered to be an assault.

If there has been an assault before reasonable suspicion that you possessed drugs was formed in the minds of the police you may be able to challenge in court any evidence (drugs) that the police find on you.

In a NSW case a sniffer dog was bunting and ferreting and nudging a man around his groin before it sat down. In this case the evidence of drugs found after the police searched the man was found to be inadmissible in court and the man’s conviction was overturned.

This means that when the police use sniffer dogs to carry out random general drug detection they must keep the dog under control and must take all reasonable steps to prevent the dog from touching you.

You should try to avoid touching or patting a drug detection dog as this may be considered to be obstructing or hindering police.

In Tasmania there is also a specific offence of injuring, harming or impeding or interfering with a sniffer dog or the effective use of the sniffer dog.

Maximum penalty: $2600 and/or 12 months imprisonment

Where can police use sniffer dogs?

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; or
  • vehicles, boats or aircraft.

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 prohibited dangerous drugs in your oral fluid or blood is an offence.

Driving also includes attempting to drive a vehicle, or attempting to put a vehicle in motion. 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 have a general responsibility to report any permanent or long-term injury or illness or worsening of such a condition that may impair his or her ability to drive safely. A driver must also notify any other factor related to physical or mental health that may impair his or her ability to drive safely. This includes a drug or substance dependency. A driver with an impairment must report as soon as practicable after becoming aware of the impairment or when applying for a renewal or grant of license.

It is an offence to fail to notify of a new or aggravated mental or physical incapacity or other relevant factor that is likely to adversely affect your ability to drive safely.

Maximum penalty: $1300.

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 you opioid dependency you may not have a higher risk of a crash, providing the dose has been stabilised over some weeks and you are not abusing other impairing drugs.

If you are driving, police in Tasmania have the power to request to see your driver’s licence.

It is an offence to fail to provide your licence.

Maximum penalty: $650.

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

Tasmania operates a mandatory interlock scheme for certain drink driving offences. An Interlock is a breath testing immobiliser device that is fitted to your car and prevents you from starting the car unless it tests the driver as having no alcohol in his or her breath.

The Court must impose an Interlock condition on your license if you are convicted of a high range (>0.15 BAC) drink driving offence, or driving under the influence, failing to provide breath or blood samples for testing, or for a second or subsequent drink driving offence. The interlock license condition lasts for 15 months, during which you cannot drive except in a vehicle fitted with an interlock. This is in addition to the full period of disqualification for the offence.

You will have to pay for the Interlock to be fitted to and removed from your vehicle and serviced once a month, plus monthly rent of the interlock device and the cost of an interlock driver’s license. All up participation in the Interlock scheme can cost as much as $3500 a year.

For more information on Tasmania’s mandatory alcohol interlock scheme see:

http://www.dier.tas.gov.au/roadsafety/people/interlocks

Driving under the influence or while impaired

It is an offence to drive where you are so under the influence of alcohol or any other drug while you are impaired and incapable of being able to properly control your vehicle.

This means that it is illegal to drive on prescription medications such as codeine, Valium, benzodiazepines, buprenorphine, and methadone if your ability to drive properly is impaired as a result of your being under the influence.

There is no defence to this charge that you were under the influence of legal prescription medication.

Police can conduct a test of your impairment by drugs or intoxication by alcohol if they have reasonable grounds to believe you are under the influence of drugs. This involves 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 a 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 can make you take a drug impairment assessment or require a drug-screening test of your blood or urine if you were involved in an accident or if the police have reasonable grounds to believe that you are impaired by drugs. Police will be more likely require you to undergo an impairment test if 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 where your ability to control the vehicle is impaired:

Maximum penalty:

  • for a first offence – $3900 and/or imprisonment for 1 year with mandatory disqualification for a period of between 12 months and 3 years.
  • for a second or subsequent offence – $7800 and/or imprisonment for 2 years with mandatory disqualification for a period of between 2 years and 6 years.

It is also a separate offence to be in charge of a vehicle while ‘drunk’.

Maximum penalty:

  • for a first offence – $390 or imprisonment for 3 months.
  • for a second or subsequent offence – $780 or imprisonment for 6 months.

Drug driving

It is an offence to drive with a specified illicit drug present in your saliva, blood or urine.

For this offence it does not matter whether your driving or control of the vehicle is impaired.

However for this charge there is a defence if you can prove to the court that at the time of the offence you were lawfully prescribed and you obtained the drug legally and took the drug in accordance with the directions of the medical practitioner. Remember that most doctors will warn you about taking a prescribed drug before driving and if you ignore that warning you can still be charged and convicted of this offence.

This means it is legal to drive with other prescription drugs such as codeine, Valium, benzodiazepines, buprenorphine or methadone in your blood, if they do not affect your ability to drive or have proper control of your vehicle.

Specified illicit drugs are:

  • MDA;
  • MDEA;
  • MDMA/ecstasy;
  • amphetamine;
  • cocaine;
  • THC;
  • heroin;
  • GHB;
  • ketamine;
  • LSD;
  • methaqualone/quaalude;
  • speed;
  • morphine;
  • DET;
  • DMT;
  • PMA;
  • PCP;
  • magic mushrooms.

Maximum penalty:

  • for a first offence -$1300 and/or imprisonment for 3 months with automatic disqualification for a period of between 3 months and 12 months.
  • for a second or subsequent offence – $2600 and/or imprisonment for 6 months with automatic disqualification for a period of between 6 months and 2 years.

As well as random breath testing for alcohol, police in Tasmania now have the power to carry out roadside drug testing on any driver. This is done by an “oral fluid” test, requiring the driver to lick the test pad of a device. This tests for the presence of THC (cannabis), amphetamine (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.

In addition a drug-screening test can test for all drugs by analysing breath, urine or blood samples. Police can require you to undergo drug screening if they believe on reasonable grounds that you have a prescribed illicit drug in your blood or urine.

It is an offence to refuse to submit to a random drug test.

Maximum penalty: $1300 and/or imprisonment for 6 months with possible disqualification for up to 3 years.

It is an offence to fail to provide a blood sample or undergo a medical examination if requested.

Maximum penalty:

  • for a first offence – $3900 and/or imprisonment for 1 year with automatic disqualification for a period of between 12 months and 3 years.
  • for a second or subsequent offence – $7800 and/or imprisonment for 2 years with automatic disqualification for a period of between 2 years and 6 years.

Drink Driving

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

Blood Alcohol Concentration (BAC) Level First offence Second or subsequent offence
Special0.00g – 0.049g $1,300 / 3 months imprisonmentMin disqualification: 3 months

Max disqualification: 12 months

$2,600 / 6 months imprisonmentMin disqualification: 6 months

Max disqualification: 24 months

Low0.05g – 0.099g $1,300 / 3 months imprisonmentMin disqualification: 3 months

Max disqualification: 12 months

$2,600 / 6 months imprisonmentMin disqualification: 6 months

Max disqualification: 24 months

Medium0.1g – 0.149g $2,600 / 6 months imprisonmentMin disqualification: 6 months

Max disqualification: 18 months

$5,200 / 12 months imprisonmentMin disqualification: 12 months

Max disqualification: 36 months

High0.15g or more $5,200 / 12 months imprisonmentMin disqualification: 12 months

Max disqualification: 36 months

$7800 / 24 months imprisonmentMin disqualification: 24 months

Max disqualification: 72 months

For offences where a person has driven over the limit, but under has a blood alcohol concentration of less than 0.1g police can issue a traffic infringement notice rather than arresting the driver. This is only available to drivers who do not have a previous drink driving or dangerous driving offence, and who were not driving a prescribed vehicle such as a taxi, bus, or large truck. In such a case you would not have to go to court or face conviction and you would be fined less, but would still lose your license for 3 months.

Maximum penalty: $260 and 3 months disqualification.

If you are caught with a blood alcohol level of less than 0.1 g you do not have a right to receive an infringement notice. Police may choose to issue on depending on the circumstances and your conduct.

It is an offence to refuse to submit to a random breath test.

Maximum penalty: $1300 and/or imprisonment for 6 months with possible disqualification for up to 3 years.

It is an offence to fail to provide a blood sample or undergo a medical examination if requested.

Maximum penalty:

  • for a first offence – $3900 and/or imprisonment for 1 year with automatic disqualification for a period of between 12 months and 3 years.
  • for a second or subsequent offence – $7800 and/or imprisonment for 2 years with automatic disqualification for a period of between 2 years and 6 years.

Paraphernalia, Fits (Needles & Syringes), Equipment

Possession

It is an offence to be in possession of needles and syringes (fits) both new and used.

Maximum penalty: $2600.

However, in practice police would not charge you with an offence simply for possessing needles or syringes. Police would also need to find drugs on you or your property to charge you with an offence or order to prove that you intended the needles and syringes to be used for taking drugs. Similarly if you are found with used fits that contain trace elements of controlled drugs, that is not enough to charge you with an offence. They would need to prove that you possessed larger quantities of drugs.

The law in Tasmania means that you should be particularly discreet about having needles or syringes.

Needles and syringes may be used as evidence if you are caught in possession of a controlled drug.

There are several legal obligations for people who possess fits. First, you must dispose of the fit safely by putting it in a sharps disposal container. Second, you must take all reasonable care with the fit to avoid danger to any other person. Third, when you collect new fits from a NSP you must return any used fits in your possession to the needle exchange.

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 (NSP). It is also important to be aware of what you might be carrying when you go to a needle & syringe program to pick up or return fits.

Penalties

It is an offence to share or supply fits, even if they are new and unused.

It is also an offence to fail to take reasonable care with fits where you expose others to a risk of harm.

Maximum penalty: $6500 or 2 years imprisonment.

Disposal of fits

It is recommended that you keep needles and syringes in a sharps container and dispose of at your nearest needle and syringe exchange program.

A person must dispose of a used syringe or needle by placing it in a container that has rigid walls, is puncture resistant and is capable of being sealed or securely closed in such a way that its contents are not capable of causing injury. A person who is in possession of a syringe or needle must use all reasonable care and take all responsible precautions in respect of that syringe or needle to avoid danger to the life, safety or health of another person.

Failing to dispose of needles and syringes appropriately is an offence.

Maximum penalty: $6,500 fine or 2 years imprisonment.

It is an offence to fail to take all reasonable care and responsible precautions to avoid danger to the life, safety or health of another person.

Maximum penalty: $6,500 fine or 2 years imprisonment.

Paraphernalia

It is an offence to possess any thing (ice and hash pipes, bongs) that is designed or intended for use in administering, smoking, injecting, inhaling or ingesting a controlled drug. This also applies to paraphernalia that can be modified or adjusted in order to be used to administer drugs. This means that bong or pipe kits are also illegal.

Maximum penalty: $6,500.

Sex, Health and the Law

Consent

Sexual relationships are legal between people aged 17 or older.

There are defences available in cases of underage sexual relationships where there is consent and where the other person is 15 years and the ‘accused’ not more than 5 years older; or where the boy or girl was 12 years or older and the ‘accused’ not more the 3 years older. These defences are not available in cases of anal sex.

Sex Work

Brothel sex work

It is illegal to run a brothel or operate a commercial sexual services business.

People who control or direct when or where a sex worker will work and under what conditions and what share of any money earned the sex worker will get are considered to be a commercial operator and running a commercial sexual service business. This means that people controlling a sex worker (‘pimps’) or operating a brothel are breaking the law.

Maximum penalty: $104,000 and/or imprisonment for 8 years.

It is an offence for any person to knowingly receive sexual services from a sex worker in a brothel or as part of some other commercial sexual services business. A person cannot be convicted of this offence if you make an admission that you paid for the sexual services while giving evidence in court.

It is an offence to procure, cause or permit a child to provide sexual services as part of a sexual services business. It is also an offence to accept a fee or reward or gift that the person could reasonably be expected to know has come from child sex work.

Maximum penalty: imprisonment for 15 years.

Maximum penalty: $13,000 or imprisonment for 1 year.

Home sex work

It is legal to work as an escort or from home; however, it is illegal to rent premises to prostitutes to use for the purpose of prostitution.

It is an offence to allow a child to be present on a premises that is being used for the purpose of providing sexual services as a business.

Maximum penalty: $2600.

Safe sex practices must be observed at all times. This involves using condoms at all times. It is an offence to fail to wear use a condom, or to use a condom that is reasonably thought to be damaged or to discourage the use of condoms.

Maximum penalty: $65,000.

Street sex work

It is illegal to solicit or loiter in a public place, or within the view or hearing of a public place, for the purposes of prostitution. This applies to both workers and clients.

Maximum penalty: $2600.

It is an offence to accost a child for the purpose of offering sexual services.

Maximum penalty: $39,000 or imprisonment for 3 years.

Blood Borne Viruses(BBVs) and Sexually Transmitted Infections(STIs)

Notification requirements

In Tasmania:

  • 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 with one of these diseases.

HIV testing must normally only done with the informed consent of the individual to be tested. However, testing can be compulsorily enforced if the Secretary of the Health Department believes on reasonable grounds that a person is infected with HIV and is placing others at risk of infection. A person charged with sexual offences may also be required to submit to a HIV test.

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

Maximum penalty: $ 6500.

There are rules that specify that your full name must not be provided when notifying a STI notifiable disease such as HIV, and that your privacy is respected.

It is an offence for someone to disclose your disease status, or other confidential personal information, without lawful authorisation.

Maximum penalty: $6500.

The Chief Executive health officer may decide that it is necessary to contact your friends and acquaintances if it becomes apparent that you could have transmitted a disease to them. This is called contact tracing and is lawful if you consent or if the Chief Executive health officer determines that disclosing your personal information will prevent further transmission of the condition or allow potentially infected people to seek medical attention. Your privacy should be respected through out the contact tracing and notification process.

It is an offence for a person reasonably suspected of being infected with a notifiable condition to fail to give details including the names of people who might have transmitted the disease to them or to who they might have passed on the disease if asked to by a health officer.

Maximum penalty: $13,000.

Public health law offences relevant to BBVs and STIs.

Tasmania has developed an Interim Framework for Managing People with Infectious Diseases Who Place Others at Risk of Infection in Tasmania. This framework sets out policies for when health officials must take action to report risky behaviours that expose people to infectious or transmissible diseases.

The framework sets 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.

If the Director of the Tasmanian Department has reasonable grounds to believe that you are infected with a notifiable disease, or if you have been charged with a sexual offence, he or she can order that you undergo a medical examination or be tested for notifiable disease infection.

It is an offence to refuse to comply with a medical examination direction.

Maximum penalty: $6500.

There is a possibility that if you have a notifiable disease and you are behaving in a way that endangers public health or puts others at risk of infection you could be given a health direction by the Director of the Health Department:

  • 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 be only made as a last resort when other attempts to get the person to change or address their risky behaviour have failed.
  • It is an offence to fail to comply with a health direction.

Maximum penalty: $6500.

A health direction can last for 48 hours for the purpose of medical examination, and 24 hours for any other purpose.

The Director can apply to the Magistrates Court for an order compelling you to follow the health direction for a period of up to 6 months, and allowing use of force to detain you in accordance with a warrant. The Supreme Court can make an order to extend the order for a period longer than 6 months but only in exceptional circumstances.

The Director also has a general power to give a direction to any person in order to stop, prevent or limit the transmission of a notifiable disease to humans.

It is an offence to fail to comply with a court ordered health direction.

Maximum penalty: $13,000.

Nationally all states and territories are supposed to uphold the important principle that the least restrictive measures of control, treatment and monitoring should be applied first when addressing risky behaviour of individuals who have HIV.

However, if you are suspected of intentionally infecting other people with a disease, health officials are instructed to refer your matter to police to pursue criminal charges.

Criminal offences relevant to BBVs and STIs

There have been at least 32 prosecutions for HIV exposure or transmission in Australia. Prosecutions have occurred in nearly every state in Australia. Criminal prosecutions are also becoming more common. If you have a transmissible disease it is your responsibility to take precautions to ensure that you minimise the risk of infecting others.

Intentionally, or recklessly exposing other people to a risk of infection with a disease can be prosecuted as a criminal offence, with serious penalties.

In Tasmania you could also potentially be charged with causing (intentionally, recklessly or by negligence) grievous bodily harm if you are responsible for infecting another person with a notifiable transmissible disease such as HIV.

Maximum penalty: 21 years imprisonment.

Intentional infection could be proven where you deliberately, knowingly or willingly set out to infect a person.

Recklessness is the failure to take reasonable precautions to prevent the transmission of a notifiable transmissible disease such as HIV, where you knew there was a risk or should have considered the risk that you could infect someone.

A person who knows that they are infected with a notifiable disease must take all reasonable measures and precautions to prevent the transmission the disease. This would include using condoms, refraining from sharing used fits, and safely disposing needles and syringes in accordance with the law.

A person must not knowingly or recklessly place any person at risk of infection with a notifiable disease. This law creates a requirement that you must inform any sexual contacts or person with whom you are sharing fits of your HIV status prior to engaging in sex or using.

Penalties

It is an offence to fail to take reasonable measures and precautions to prevent the transmission of HIV and not inform sexual partners or injecting partners of HIV status prior to engaging in sex or injecting.

Maximum penalty: $13000 or imprisonment for 1 year.

If you did inform the person with whom you had sex or shared fits about your disease status and they voluntarily accepted the risk of being infected then you may not be convicted of this charge.

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

The Tasmanian Anti-Discrimination Act provides that different treatment based on the ground of any of the following attributes is unlawful:

  • age;
  • breastfeeding;
  • disability;
  • family responsibilities;
  • gender/sex;
  • industrial activity;
  • irrelevant criminal record;
  • irrelevant medical record;
  • lawful sexual activity;
  • marital status;
  • relationship status;
  • parental status;
  • political activity;
  • political belief or affiliation;
  • pregnancy, race;
  • religious activity;
  • religious belief or affiliation;
  • sexual orientation/transsexuality; or
  • association with a person who has, or is believed to have, any of these attributes or identities.

In what circumstances can you complain about discrimination?

You can’t complain about discrimination in all areas of life. This is because the Government does not normally regulate private behaviour or relationships between individuals (unless there is threat of violence or other criminal offences involved).

Generally people are free to think and speak what they like about each other. For instance you cannot claim that your family or neighbour discriminates against you because of who you are friends with.

However, discrimination law does prevent discrimination in social or public areas of life, where you might have a reasonable expectation to be treated the same as anyone else, despite the fact that you may be of a different race, or have a different gender identity or are disabled.

In the ACT areas of life where discrimination is unlawful are:

  • work, employment related areas– you cannot be fired or sacked, or given harder work, worse conditions or unequal pay only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • education – you cannot be refused a place in a school or university course only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • goods and services and facilities– you cannot be refused a sale, or service in a restaurant or health care, or access to public transport, or help from the police only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • clubs – you cannot be refused membership of a club only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • accommodation – you cannot be refused accommodation in a motel or in public housing only because of your race, age, gender identity, disability, political or religious beliefs etc.
  • administration of a law of Tasmania – you cannot be treated differently by public servants who make decisions under Tasmanian laws only on the basis of your gender, parental or relationship or family status, pregnancy or decision to breastfeed.
  • award rates – you cannot be made to work under different rates of pay or award conditions only on the basis of your gender, parental or relationship or family status, pregnancy or decision to breastfeed.

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 Tasmanian Anti-Discrimination Commission.

Tasmanian discrimination law also prohibits sexual harassment and vilification.

Vilification is public action or communication that incites hatred, or severe contempt or ridicule of another person or group of people based on their race, sexuality, or status as a person living with HIV/AIDs.

This means that it is unlawful for a person to publish extremely offensive or hateful comments about LGBTQI people or people living with HIV/AIDs.

There is also legal protection against discrimination for people with disabilities under the Federal Disability Discrimination Act.

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.

However, if you are subject to unfavourable or unfair treatment because you are on a legally prescribed drug treatment program including methadone and buprenorphine pharmacotherapy you may be able to complain of discrimination.

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.

Complaining about discrimination

If you believe you have been discriminated against you may be able to make a complaint and seek compensation. Complaints can be made in writing to the Anti-Discrimination Commission in Tasmania, but must be lodged within 12 months of the alleged discrimination.

The Commission will attempt to investigate your complaint and then conduct a conciliation or negotiation about each side’s story and reasons for their actions. If an agreement does not come out of the negotiation, the complaint will be referred to the Anti-Discrimination 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. 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’

Misuse of Drugs Act 2001 – sets out offences for possession, administration, supply, trafficking manufacturing and cultivation. Defines and lists controlled drugs and controlled plants in Schedule 1. Sets out police search and arrest powers.

Poisons Act 1971 – regulates the supply and control of drugs by medical practitioners and pharmacists. Defines prohibited substances to be those listed in schedule 9 of the SUSMP. Defines narcotic drugs to be those substances listed in schedule 8 of the SUSMP. Creates offences for unlawful importation, manufacture, possession, supply, obtaining or administering of prohibited substances. Establishes a system of sale and supply controls for new drugs which have not been added to the Misuse of Drugs Act Schedule or the SUSMP.

Australian Poisons Standard (The Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP)) – is a Australian Government law updated regularly to make many synthetic drugs illegal.

Police Service Act 2003 – Part 5A authorises the use of sniffer dogs.

Police Offences Act 1935 – creates an offence of unlawful administration of a drug to another persons. Sets out some police search and arrest powers and procedures.

Forensic Procedures Act 2000 – sets out police powers to conduct intimate or forensic searches and the specific procedural requirements and responsibilities for such searches.

Road Safety (Alcohol and Drugs Act) 1970 – sets out offences and penalties for drink and drug driving and for taking breath, oral fluid, blood and urine samples by police.

Road Safety (Alcohol and Drugs) Regulations 2009 – lists prescribed illicit drugs for the purposes of the Road Safety (Alcohol and Drugs Act) 1970.

Vehicle and Traffic Act 1999 – Regulates general traffic and motor vehicle law including the requirement for drivers to produce a license when requested by police.

Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2010 – Sets out licensing requirements including the duty to notify of a medical condition including a drug dependency.

Criminal Code 1924 Schedule 1 – sets out offences against the person such as intentionally or recklessly causing grievous bodily harm to another person. These offences may be used to prosecute a person with HIV who is placing others at risk of transmission.

Sex Industry Offences Act 2005 – regulates sex work in Tasmania.

HIV/AIDS Preventative Measures Act 1993 – sets out notification, testing and disclosure requirements for people who have or are suspected of having HIV.

Public Health Act 1997 – sets out notification, testing, management and disclosure requirements for people who havenotifiable diseases.

Anti-Discrimination Act 1998 – establishes Tasmanian discrimination laws.