Victoria

Which Drugs Are Illegal?

In Victoria illegal drugs are called drugs of dependence. Illegal plants are called narcotic plants.

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

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

Drugs of Dependence Narcotic 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
  • Coca Leaf
  • This list is not the full list of all drugs of dependence. The full list includes all drugs listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 under the heading “Part 3”.
  • Cannabis
  • Opium poppies
  • This list is not the full list of narcotic plants. The full list includes all drugs and plants listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 under the heading “Part 3”.

General Information

Knowledge of the particular drug

For offences involving drugs of dependence or narcotic plants in Victoria the police generally have to prove that you knew or should have known that the drugs or plants were drugs of dependence or narcotic 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 as a drug of dependence for the purpose of supply, you can still face the same penalties as if it were a drug of dependence. This means, that you can be charged with supplying cocaine even if you are just trying to rip someone off, for example, by selling him or her icing sugar.

Mixtures of drugs and trafficking

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

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

Victorian 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 drug of dependence 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 drugs of dependence 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 or inciting supply if you are a user and arrange to score off a dealer for personal 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 drug of dependence unless you are authorised by law to possess it.

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 if you see the drug or information from another person, telling you that a package they have given you contains methamphetamine. 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.

However, 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 and 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. Victoria 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 Victoria you can be charged with possession of a drug of dependence if the drug is physically located anywhere on land or premises occupied by you; or is used, enjoyed or controlled by you in any place. This means that you can still be charged and convicted without the prosecution having to prove that you had 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.

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.

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’.

Penalties

Possessing a drug of dependence without authorisation or prescription is an offence.

Maximum penalty: $4320 and/or 1 year imprisonment.

Possessing a drug of dependence for the purpose of trafficking (sale or supply) is an offence.

Maximum penalty: $57,600 and/or 5 years imprisonment.

Possession of less than 50 grams of cannabis, where you can prove that the cannabis was only for personal consumption is a less serious offence.

Maximum penalty: $720.

Use and Administation

If you self-administer (use) a drug of dependence without authorisation you are committing an offence. It is illegal to inject another person even if they have asked you to or given you consent.

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

Penalties

Using a drug of dependence other than cannabis is an offence.

Maximum penalty: $4320 fine and/or 1 year imprisonment.

Using cannabis is an offence.

Maximum penalty: $720.

Administering, or attempting to administer a drug of dependence (including cannabis) to another person is an offence.

Maximum penalty: $4320 fine and/or 1 year imprisonment.

There is a possible alternative charge under the general criminal law where you administer a substance (such as heroin) that is capable of altering bodily functions (by causing sleep or unconsciousness) to another person without that person’s consent.

This offence will also be proved if it was shown that you were reckless as to whether the other person consented to taking the drug. The court will presume that a person did not consent if it is likely that if they had known the risks of taking the substance they wouldn’t have consented.

Maximum penalty: 5 years imprisonment

Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs). Remember that any statements you make to police form part of the evidence that can be used against you. No conversation with police is ‘off the record’. For more information on your legal rights see the section on general legal information.

If, for example, you meet police on your way home after smoking a joint in the park and they ask you if you have been smoking don’t admit to it. This would give police the reasonable suspicion that you are in possession they need to search you. If they find some cannabis on you that might give them grounds to get a warrant to search your house. Admitting that you have used drugs recently can quickly lead to more serious drug charges.

Do not admit to possessing drugs without speaking to a lawyer!

If you administer a prohibited drug to another person who subsequently dies from an overdose (‘OD’) you could be charged with manslaughter. Nevertheless if you are using with someone who overdoses you should call an ambulance. Police have guidelines about overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.

Police will not normally attend an overdose unless:

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

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 Victoria to obtain or attempt to obtain drugs of dependence by lying or making false representations to a doctor or by forging a prescription.

Maximum penalty: $2880 and/or imprisonment for 1 year.

Trafficking/Supply/Manufacture

It is illegal to traffic in a drug of dependence without lawful authority.

It is also illegal to possess a drug of dependence for the purpose of trafficking it to another person. There is no separate offence of supply in Victoria (other than supply to a child) or of manufacturing drugs of dependence.

In Victoria, you can be charged with trafficking if you-

  • prepare a drug of dependence for sale;
  • manufacture a drug of dependence;
  • sell, exchange, agree to sell, offer for sale a drug of dependence; or
  • have in your possession a drug of dependence with the intention of selling it.

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 trafficking can even rest on an offer to score on another person’s behalf.

If a person is found in possession of a trafficable quantity of drugs, an intention to traffic will be presumed. In this case the court will automatically believe that you intended to sell the drugin the absence of proof that you didn’t intend to traffic the drug, which may be hard to provide.

If you are a heavy user and the drugs are for personal use only, it may be advisable to make a statement to investigating officers to say that at an early stage.

It is also an offence to help another person to traffic drugs of dependence or plan with them to traffic.This is called conspiracy or aiding and abetting an offence.

Penalties

Trafficking in a large commercial quantity of a drug of dependence is an offence:

Maximum penalty: $720,000 and/or imprisonment for life.

Trafficking in a commercial quantity of a drug of dependence is an offence:

Maximum penalty: imprisonment for 25 years.

Trafficking in a trafficable quantity of a drug of dependence is an offence:

Maximum penalty: imprisonment for 15 years.

The maximum penalties set out for trafficking in different quantities of commonly used drugs of dependence are set out in a table below.

Trafficking/Suply/Manufacture Small pure quantity (grams) Trafficable pure quantity (grams) Commercial pure quantity (grams) Large commercial pure quantity (grams)
Drug Maximum penalty: $57,600 /5 years Maximum penalty: 15 years Maximum penalty:25 years Maximum penalty: $750,000 / Life
Cannabis 50g 250g 25,000g 250,000g
Cannabis Plants 10 plants 100 plants 1000 plants
Amphetamine (speed) 0.75g 3g (mixed) 100g500g (mixed) 750g1000g (mixed)
Cocaine 1g 3g (mixed) 250g500g (mixed) 750g1000g (mixed)
Ketamine 3g 500g 1000g
Meth-amphetamine (Ice) 0.75g 3g (mixed) 100g500g (mixed) 750g1000g (mixed)
MDMA 0.75g 3g (mixed) 100g500g (mixed) 750g1000g (mixed)
2CB 0.5g 500g
GHB 10g 50g (mixed) 2000g (mixed)
DMT 0.5g 500g
Morphine 2g 1500g
Psilocybin 0.1g 100g
Methadone 2g 2000g
Heroin 1g 3g (mixed) 250g500g (mixed) 750g1000g (mixed)
LSD 0.002g 0.05g 0.15g
Tetrahydro-cannabinols (THC) 1g 25g (mixed) 1000g10,000g (mixed) 3000g25,000 (mixed)
JWH Synthetic Cannibinols 1g 3g (mixed) 1000g (mixed) 10,000g (mixed)

Cultivation

It is an offence to cultivate a narcotic plant. Narcotic plants are plants grown for the purpose of extracting or harvesting drugs of dependence. A narcotic plant includes any cuttings even if they don’t have roots.

Cultivating a narcotic plant includes:

  • sowing a seed of a narcotic plant;
  • planting, growing, tending, nurturing or harvesting a narcotic plant; or
  • grafting, dividing or transplanting a narcotic plant.

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

If you can prove to the court that you did not know or suspect that the plant you cultivated was a narcotic plant, you may be able to avoid conviction.

It is also an offence to help another person to cultivate narcotic plants or plan with them to cultivate narcotic plants.

Penalties

Cultivating a large commercial quantity of a narcotic plant is an offence:

Maximum penalty: $720,000 and/or imprisonment for life.

Cultivating a commercial quantity of a narcotic plant is an offence:

Maximum penalty: imprisonment for 25 years.

Cultivating a traffickable quantity of a narcotic plant with intention to traffic it is an offence:

Maximum penalty: imprisonment for 15 years.

Cultivating less than the commercial quantity of a narcotic plant without intention to traffic it (i.e., you only cultivated it for personal use) is an offence:

Maximum penalty: $2880 and/or imprisonment for 1 year.

The maximum penalties set out for cultivation in different quantities of narcotic plants, with intent to traffic, are set out in a table below.

Cultivation with intent to traffic Less than the commercial quantity with no intent to sell (grams) Traffickable quantity with intent to sell (grams) Commercial quantity (grams) Large commercial quantity (grams)
Plant Maximum penalty: $2880 / 1 year Maximum penalty: 15 years Maximum penalty:25 years Maximum penalty: $720,000 / Life
Cannabis Plant 50g 250g10plants 25000g100 plants 25000g1000 plants
Coca Leaves 800g 80,000g
Opium poppies 5 plants 100g50 plants 10,000g250 plants 1000 plants

Aggravating Circumstances

Supply or trafficking to children

Selling, supplying, trafficking, manufacturing drugs of dependence or cultivating narcotic plants 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.

Trafficking in a drug of dependence or narcotic plant to a child is a serious offence.

Maximum penalty: imprisonment for 20 years.

Supplying (by giving or providing rather than selling) a drug of dependence or narcotic plant to a child is a serious offence.

Maximum penalty: $144,000 and/or imprisonment for 20 years.

Cannabis Cautioning and Drug Diversion

Victorian police operate a drug diversion program at the point of arrest. This means that when police find you in possession or using a small amount of cannabis or other drugs of dependence and if they are satisfied that you are not holding with the intention of supplying or trafficking, they can let you go with a caution without arresting you or taking you to court.

This is only at police discretion, which means the police can choose whether to caution you or arrest and charge you.

If you get caught using or holding less than 50 grams of cannabis and you want to get off with a caution you must admit to the offence of possession or use. You will also have to attend a cannabis information session, but no conviction will be recorded.

If you get caught using or holding a small amount of any other drug of dependence (e.g., cocaine, heroin, speed, ecstasy, ice, LSD) you must admit the offence and also attend drug treatment sessions. If you attend the treatment no conviction will be recorded.

The police will check on your attendance with the drug treatment centre, so if you don’t attend the sessions you will be charged and taken to court.

A person can accumulate two cautions only. Getting caught a third time means you will be arrested, charged and prosecuted in court.

Difference between decriminalisation and legalisation

Cannabis is NOT legal in Victoria. It is NOT decriminalised, because you can still be charged and convicted, and you have no automatic right to a caution. 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.

Diversion

If you are caught using, possessing or cultivating less than the small quantity of cannabis or another drug and are taken to court, the court can postpone hearing your case for 12 months and let you go free to give you an opportunity to attend a drug treatment program or counselling and to prove that you are not likely to re-offend.

If you complete the treatment or counselling programs successfully, the court is more likely to give you a reduced penalty or to not record a conviction at all.

You cannot be diverted if the police prove that you had more than the small quantity of a drug or plant, or that you intended to traffic the drug or plant. You cannot be diverted if you have a previous conviction, either under Victorian drug laws or other Commonwealth, state and territory drug laws. Diversion is not guaranteed and the court has the option to proceed straight to conviction.

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 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
  • Mephedrone/M-CAT -Cathinone)
  • Amped (synthetic cocaine)
  • Zoom
  • Cloud Nine
  • Ivory Wave
  • N-BOMes/N-Bombs (synthetic LSD)
  • Pandora
  • Smiles

Are synthetics legal?

The most up to date list of illegal drugs and illegal synthetics can be found in Schedules 8 and 9 of the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) formerly known as the Australian Poisons Standard. The standard is a list of substances that the Australian Government has restricted or made illegal for sale or use without authorisation.

The law in Victoria automatically imports the Standard for the Uniform Scheduling of Medicines and Poisons making it an offence to use, possess or sell Schedule 8 or 9 substances, which are not already listed as drugs of dependence in the Victorian law.

It is an offence to use, possess, supply or sell any Schedule 8 or 9 SUSMP substance without a prescription from a medical practitioner.

Maximum penalty: $14,400

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

Searching and Drug Detection

General search powers

A police officer may search you, your clothing or property which you have on you and may seize any thing they find, without a warrant, if the police officer has reasonable grounds to suspect that you have in your possession or in your property or car a drug of dependence.

Police can search you or your property if:

  • they have reasonable grounds to suspect 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 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 which is based on more than a mere possibility or hunch, but which can be less firm or less supported by evidence than reasonable belief.

This is what the court will consider when determining whether the police suspicion to search you was reasonable.

For example if you are in a place known to be used for dealing drugs, and are known to police as a user and police see you meet another person for a few minutes in an alleyway this might be enough to establish a reasonable suspicion.

The fact that you are a user alone might not be enough to form a reasonable basis for a suspicion that you are in possession of drugs. Police will consider your behaviour, the time of day and location.

If police ask you to roll up your sleeves and see track marks that would not be a sufficient reason to search you. You have a right to refuse police to show them your arms if they haven’t told you what offence they suspect you of committing. Police must have more evidence than the fact that you have used drugs in the past.

If the suspicion is proved to be unreasonable in court then the search might be considered to be illegal and any evidence of drug offences such as drugs, large amounts of cash, fits or paraphernalia might not be allowed to prove your guilt.

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

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

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

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

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

Conduct of searches

General or frisk searches

Police conducting a general frisk or strip search can ask you to open your mouth or shake out your hair, but cannot force you to open your mouth without an order as this is considered an intimate search.

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 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, you must follow their directions to remove the items of clothing that they request you to remove.

Police are not allowed to strip search you in public, but must make the search as private as the circumstances allow. They are not allowed to touch you during a strip search. A search can only be conducted by an officer of the same sex as you.

If you are under 18 police must allow a parent, guardian or a responsible and independent observer to oversee the search. If you have a mental illness or mental disability, a trained independent third person should be present to oversee the search. The police do not have to wait for these people to be present if it is not practicable in all the circumstances.

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.

If police intend to preform a procedure on an incapable person (e.g. mentally handicapped, unconscious) or a child under the age of 18 a responsible support 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 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 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, handprints and toe-prints and footprints.

If you are younger than 15 police cannot take your fingerprints without the consent of the child and his or her parents, or a court order. Police cannot take the fingerprints of a child younger than 10 years old.

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 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 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; or
  • 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 no specific drug premises laws in Victoria.

Sniffer dogs

In Victoria, 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?

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

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

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

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

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

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

Where can police use sniffer dogs?

Sniffer dogs usually patrol the perimeter and the entry and exits to festivals or raves. They are also commonly seen in Melbourne’s club districts and at train stations.

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.

If you are approached and sniffed by a dog, don’t panic and run or throw your drugs or smokes away, 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 or put a vehicle in motion, or being in charge of a vehicle in a road or road related area.

This means you can be charged if you:

  • are sitting in the driver’s seat;
  • turn on the headlights;
  • engage the gears; or
  • put the keys in the ignition.

Drug and drink driving offences are not limited to public roads. They can be committed on private property.

All drivers have a general responsibility to report any permanent or long-term illness, injury or incapacity that may impair his or her ability to drive safely. This includes a drug or substance dependency. A driver with an impairment must report as soon as 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 you have been assessed by a health practitioner.

For example, if you are stabilised on methadone or buprenorphine for you opioid dependency you may not have a higher risk of a crash, providing the dose has been stabilised over some weeks and you are not abusing other impairing drugs.

If you are driving or have stopped in a road related area (such as a freeway service centre or truck rest stop), Victorian Police have the power to request to see your driver’s licence and to ask your name, date of birth and address.

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

Maximum penalty: $7000.

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. In Victoria you will also have to apply for a License Eligibility Order (LEO) from the Magistrate’s Court. You will be required to obtain an LEO if you are convicted of a serious driving offence (e.g. over 0.15 BAC or driving while impaired or under influence) where your license is cancelled or you are disqualified from obtaining a licence. This order acts as approval for you to be relicensed by the Licensing Authority.

The Court must also impose an Interlock condition on your licence for higher range or repeat offences or offences of refusing to provide a breath or blood sample for testing. 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. You will have to pay for the interlock to be fitted to and removed from your vehicle, monthly rent of the interlock device, and for it to be serviced (usually once a month) plus you will have to obtain an interlock driving licence. All up participation in the interlock program can cost as much as $3500 a year.

For more information on Victoria’s interlock scheme see:

http://www.magistratescourt.vic.gov.au/howdoi/alcohol-interlocks-faq

Driving under the influence

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

This charge will be laid if your use of alcohol or any other drug, including prescription medication that affects your driving so much that you are driving dangerously or erratically, or you crash.

Police can require you to undergo an initial breath or oral fluid test to check for presence of drugs or alcohol at any time without reason. They will almost certainly test you if you crash.

Police can conduct a test of your impairment by drugs or intoxication by alcohol if they have reasonable grounds to believe you are under, or were in the last three hours, under the influence of drugs while driving or in charge of a motor vehicle. 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, saliva, and 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.

Maximum penalty:

  • For a first offence: $3600 and/or imprisonment for 3 months with a mandatory minimum disqualification for at least 2 years.
  • For a second offence: $17,280 and/or imprisonment for 12 months with a mandatory minimum disqualification for at least 4 years.
  • For a third or subsequent offence: $ 25,920 and/or imprisonment for 18 months with a mandatory minimum disqualification for at least 4 years.

Drug driving

It is illegal to drive with a specified illicit drug in your system. Specified illcit drugs include as cannabis, ecstasy, ice, or speed.

As well as random breath testing for alcohol, police in Victoria have the power to carry out roadside drug testing on any driver. This is done by an “oral fluid” test, requiring the driver to lick the test pad of a device. This tests saliva samples test for the active ingredient in cannabis (delta-9-tetrahydrocannabinol – THC), speed and ice (methamphetamine), or ecstasy (MDMA).

If a positive sample is detected, you will be required to provide a second sample which 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.

The oral fluid test will not detect other prescription drugs such as codeine, Valium, benzodiazepines, buprenorphine or methadone. However, the police can test for all drugs by requiring a drug-screening test which can involve a blood sample being taken and analysed. Police need no reason to make you take a drug-screening test if you were driving on a public road.

Police will be more likely to make you take an drug screening or impairment test if you were involved in an accident or if the police have reasonable grounds to believe that you were driving erratically, dangerously or recklessly. If the drug screening test shows that you have prescription drugs in your system you can only be charged if they impaired your driving so that you could not properly control your vehicle.

Maximum penalty:

  • for a first offence – $ 1728 with a mandatory minimum disqualification for at least 3 months.
  • for a second offence – $ 8640 with a mandatory minimum disqualification for at least 6 months.
  • for a third offence – $ 17,280 with a mandatory minimum disqualification for at least 6 months.

It is also illegal to drive while impaired by any drug whether that drug is legal or illegal.

Road safety law in Victoria defines a drug as any substance that deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties.

A driver is not to be taken to be impaired unless his or her behaviour or appearance is such as to create a reasonable suspicion in a police officer that he or she is unable to drive properly.

This means that it is illegal to drive on prescription medications such as codeine, valium, benzodiazepines, buprenorphine and methadone if evidence such as a drug screening test shows impairment or d that your ability to drive properly was affected or if it is proven that you did not take the medication as directed by your doctor or pharmacist.

However it is a defence to this charge if you can prove that you consumed or used the prescription drug or the combination of prescription and legal drugs in accordance with the advice of a registered medical practitioner, a dentist or a pharmacist.

You must also show that did you not know and could not reasonably have known that a lawfully prescribed drug would impair driving if consumed or used in accordance with advice given to you by the medical practitioner.

Driving while impaired by any drug whether that drug is legal or illegal is an offence.

Maximum penalty:

  • for a first offence – $ 1728 with a mandatory minimum disqualification for at least 12 months.
  • for a second offence – $ 8640 and or imprisonment for 12 months with a mandatory minimum disqualification for at least 2 years.
  • for a third offence – $ 17,280 and or imprisonment for 18 months with a mandatory minimum disqualification for at least 2 years.

It’s also an offence to:

  • refuse to provide a saliva sample, or stop at a Random Drug Test station if directed to;
  • be affected by illicit drugs while accompanying a learner driver; or
  • refuse to undergo an assessment for drug impairment.

Maximum penalty:

  • For a first offence – $ 1728
  • For a second offence – $ 17,280 and/or imprisonment for 12 months with a mandatory minimum disqualification for at least 2 years.
  • For a third offence – $ 25,920 and/or imprisonment for 18 months with a mandatory minimum disqualification for at least 4 years.

Drink-driving

It is an offence to drive with a specified concentration of alcohol in your breath or blood.

Maximum penalties:

Blood Alcohol concentration (BAC) Level First offence Second offence Third offence
Less than 0.149g $2880Min disqualification: 6 months $ 8640 and/or imprisonment for 6 monthsMin disqualification: 12 – 18 months $ 17,280 and/or imprisonment for 12 monthsMin disqualification: 12 – 18 months
0.15g or more $2880Min disqualification: 1024 months $ 17,280 and/or imprisonment for 12 monthsMin disqualification: 20 – 48 months $25,920 and/or imprisonment for 18 monthsMin disqualification: 20 – 48 months

It’s also an offence to:

  • stop at a Random Breath Test station if directed;
  • refuse to provide undergo a breath or blood test; or
  • be affected by alcohol while accompanying a learner driver.

Maximum Penalty:

  • for a first offence – $ 1728
  • for a second offence – $ 17,280 and/or imprisonment for 12 months with a mandatory minimum disqualification for at least 2 years.
  • for a third offence – $ 25,920 and/or imprisonment for 18 months with a mandatory minimum disqualification for at least 4 years.

Paraphernalia, fits (needles & syringes), equipment

Possession

Possession of fits is legal in Victoria, but both used or unused equipment may be taken as evidence of drug use. 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 if you are not ‘authorised’ to supply equipment.

It is unlikely that police would charge you with possession on the basis of the minute quantities of drugs that are present in used fits. However, if you make admissions about using (self-administration) or you are found to be holding (possession), the fit or fits may be taken as corroborating evidence.

If you are concerned about used fits and trace elements you can flush them with water immediately after use but the best approach is to dispose of them in a disposal container and return them to a needle & syringe program. It is also important to be aware of what you might be carrying when you go to a needle & syringe program to pick up or return fits.

Disposal of fits

It is an offence to litter including disposing of needles & syringes in public places. Disposal of used injecting equipment into household waste is legal in Victoria but it is not recommended in the public health information on safe disposal.

Cocaine kits

In Victoria it is an offence to sell or display for sale a cocaine kit.

A cocaine kit is a package with two or more of the following items included:

  • a razor blade;
  • a tube;
  • a mirror;
  • a scoop;
  • a glass bottle;
  • or anything else package with one of these things, and sold for the purpose of snorting or using cocaine.

Maximum penalty:

  • for individuals: $8640.
  • for companies or businesses: $43,200.

Pipes

In Victoria it is an offence to sell or display for sale or supply an ice pipe, or any device intended for using methyl-amphetamine (meth/ice). There are significant penalties for these offences but, in practice these will be much less if enforcement bodies, issue infringement notices.

Maximum penalty:

  • for individuals $35,560.
  • for companies or businesses: $86,400.

It is also an offence to sell, display for sale or supply a water pipe, bong, bong component or bong kit.

Maximum penalty:

  • for individuals: $8640 ($1728 by infringement notice).
  • for companies or businesses: $43,200 ($8640 by infringement notice)..

It is also an offence to display more than 3 hookahs (shishas) for sale.

Maximum penalty:

  • for individuals: $1440 ($288 by infringement notice).
  • for companies or businesses: $7200 ($1440 by infringement notice).

Sex, Health and the Law

Consent

The age of consent in Victoria is 17. For anyone aged 17 or older, there is no restriction on sexual relationships, but both participants must consent.

If you are between 10 and 16 years old you can have sex with another person as long as you consent and you are either married or not more than 2 years younger or older than the other person.

If you are younger than 17 years old, it is illegal for someone who is your teacher, supervisor or carer to have sex with you, even if it is consenting.

Sex Work

Brothel work

It is legal to work in a licensed brothel.

Workers can be charged for working in an unlicensed brothel. The Business Licensing Authority issues licenses.

Brothel owners or operators are required to provide condoms, STI, information and confidential medical examinations, disinfected showers with hot water and towels for the use by sex workers and clients.

Maximum penalty: $1440.

You cannot be required to clean or disinfect any shower or bath, unless your client used that particular shower or bath. Adequate protective material such as gloves must be provided. You cannot be generally required to clean or disinfect showers or baths unless you are contracted as a cleaner.

Maximum penalty: $5760.

The owner or operator must also ensure that there is a concealed alarm button and adequate lighting in every room.

Maximum penalty: $5760.

If you are a working with a client and decide not to provide, or to stop providing, sexual services because you believe a situation is potentially violent or unsafe, it is an offence for the owner or operator of the brothel to dispute your decision or take punitive action against you or punish you in any way for that decision.

Maximum penalty: $5760.

It is illegal for a sex worker or client to engage in sex work involving penetrative sex without using a condom.

Maximum penalty: $2880.

It is illegal for a brothel owner or operator to force or require a sex worker to provide sexual services to a client where the sex worker has refused because the client will not use a condom or is infected with an STI.

Maximum penalty:

  • for an individual: $17,280.
  • for a company or business: $86,400

It is illegal for a brothel owner or operator to allow you to work in a brothel if you are infected with an STI or BBV.

Maximum penalty: $7200.

It is an offence for a sex worker to provide sexual services while knowing that he or she is infected with an STI or BBV.

Maximum penalty: $2880.

If it is proved to the court that you provided sexual services during a period when you were infected with an STI or BBV the Court will automatically assume that you knew you were infected unless you can prove that at the time of the alleged offence you were being swab tested every month for STIs and blood tested for HIV and other BBVs every 3 months.

The results of the test should be given in a certificate form, which is evidence to the brothel owner or operator that you are STI or BBV free.

However, it is an offence for an owner or operator to present to a client a certificate from a medical examination as proof that a sex worker is not infected with an STI or infectious disease.

Maximum penalty: $8640.

It is illegal for a brothel owner or operator to discourage the use of condoms or to fail to take reasonable steps to ensure that condoms are used any time sexual services are provided.

Maximum penalty: $8640.

It is illegal for a brothel owner or operator to force or induce someone to engage or continue to engage in sex work.

Maximum penalty: 10 years imprisonment

It is illegal to enter, remain or work in an unlicensed brothel.

Maximum penalty: $1440 and/or 1month imprisonment.

Escort work

It is legal to work in a licensed escort agency. Up to two people can work together as escorts without being licensed, but they have to register as ‘exempt escorts’.

It is illegal for an escort agency owner or operator to discourage the use of condoms or to fail to take reasonable steps to ensure that condoms are used any time sexual services are provided.

Maximum penalty: $8640.

It is illegal for a sex worker or client to engage in sex work involving penetrative sex without using a condom.

Maximum penalty: $2880.

An adequate supply of condoms and lubricant must be provided to the worker by the agency.

It is an offence if these are not provided.

Maximum penalty: $8640.

Escort workers must be provided with a means of communicating easily with the agency, such as a mobile phone and that regular contact before and after the worker arrives and leaves a client’s premises. If the sex worker believes that the situation is violent or potentially unsafe the agency must assist the worker as soon as possible.

Maximum penalty: $8640.

Street sex work

It is illegal to solicit or accost people for the purposes of prostitution in a public place. Penalties increase if you are caught working in or near a school, place of worship or hospital.

‘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.

Maximum penalty: $720 and/or 1 month imprisonment.

Home sex work

Up to two people may work together as prostitution service providers without having to be licensed, but they have to register as ‘exempt brothel workers’.

Advertising sex work is tightly controlled. You cannot refer to the type of sexual services you provide. You cannot advertise that you are a masseur or massage parlour.

It is an offence to participate in sex work if you know, or should know that you are infected with a sexually transmitted infection.

Maximum penalty: $2880.

It is illegal for a sex worker or client to engage in sex work involving penetrative sex without using a condom.

Maximum penalty: $2880.

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

Notification and testing requirements

In Victoria:

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

are notifiable diseases, which means medical practitioners must notify public health authorities of patients who test positive to any of these diseases.

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

Maximum penalty:

  • for a doctor or nurse: $8640.
  • for a pathologist: $8640.

Notification of HIV or AIDS infection is by code only. Other notifiable diseases such as hepatitis A, B, C, D, and E are not required to be de-identified by being put in code but identifying information which is collected must not be unlawfully disclosed.

It is an offence for someone to disclose your disease status or identify you as testing positive, without lawful authorisation.

Maximum penalty: $8640.

The Chief Health Officer in Victoria can make an order requiring you to be tested or treated if the officer believes that you are infected with an infectious notifiable condition, and that you are likely to infect other people. You should be given information about the disease and a chance to consent to testing before an order is made. The Magistrate’s Court can authorise your detention for up to 72 hours to allow you to be forcibly tested. Police can be used to arrest you and take you to and from the site where the testing is to be done.

It is an offence to fail to comply with a testing or treatment order.

Maximum penalty: $8640.

Public health law offences relevant to BBVs and STIs

Victoria has developed Guidelines for the management of people living with HIV who put others at risk. 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.

If a service provider is concerned that a client is HIV positive and is putting others at risk, they may notify the Department of Health, which may take action accordingly.

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 subjected to a public health order by the Chief Health Officer:

  • preventing you from doing certain activities;
  • preventing you being in or working in certain places;
  • requiring you to have a medical examination or undergo treatment or health counselling;
  • requiring that you are confined or detained in a particular place.

The public health order must not exceed 6 months in length. At any time while you are subject to the order you can apply to the Chief Health Officer to review the order. The least restrictive measures to limit the risk of transmission of the disease must be taken.

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

Maximum penalty: $17,280.

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.

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.

Public health law in Victoria does not specifically require an HIV-positive person to disclose their HIV status before having sex or engaging in unsafe injecting practices. However criminal law states that a person must not knowingly or recklessly infect another person with an infectious disease.

More prosecutions for reckless or intentional transmission of BBVs and STIs have taken place in Victoria than in any other state or territory.

In Victoria a person who intentionally causes another person to be infected with a “very serious disease” (which includes HIV) is guilty of a crime. You can also be charged with more general criminal offences such as intentionally or recklessly causing injury to another person.

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

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

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

Penalties

It is an offence to knowingly or recklessly infect another person with an infectious disease.

Maximum penalty: $20,000.

It is a defence to a charge under this law, to show that the person who becomes infected with the infectious disease knew of and voluntarily accepted the risk of infection.

It is an offence to intentionally cause another person to be infected with a “very serious disease”.

Maximum penalty: 25 years imprisonment.

It is an offence to act in a way that endangers life.

Maximum penalty: 10 years imprisonment.

Discrimintation

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.

In some cases treating everyone the same, where their circumstances are different, can be considered indirect discrimination.

Grounds for discrimination

The Victorian Equal Opportunity Act prohibits the discrimination of an individual on a range of grounds including:

  • age;
  • disability;
  • industrial activity (for example, being a member of a union);
  • lawful sexual activity;
  • marital status;
  • physical features;
  • political belief or activity;
  • pregnancy;
  • race;
  • religious belief or activity;
  • sex;
  • parental status;
  • status as a carer;
  • association with people who have these attributes.

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 Victoria the 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 – 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.
  • sport – you cannot be refused the ability to play sport for a team or in a competition only because of your race, gender identity, political or religious beliefs etc.
  • transfer of land – you cannot be refused the ability to buy land or property from other people only because of your race, gender identity, 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 Victorian Equal Opportunity and Human Rights Commission.

Victorian law also prohibits sexual harassment and racial vilification.

Vilification is action or communication that incites hatred, or severe contempt or ridicule of another person or group of people based on their race.

The meaning of disability discrimination

Being discriminated against on the basis of ‘disability’ includes being discriminated against on the ground that you are infected with a specific disease including Hepatitis C or HIV/AIDS.

It is not clear whether having a ‘drug dependency’ can be considered a ground for discrimination.

Generally drug addiction will not count as a disability. Temporary intoxication from drug use is not a disability.

There have been a number of court cases that have considered that a dependency on methadone or buprenorphine could in certain circumstances be considered a disability.

In these cases former heroin addicts had been stabilised on methadone or buprenorphine pharmacotherapy and were being subjected to workplace harassment and unfair treatment because of their history of drug use. The courts held that someone who was living a normal, functional life with the help of legally prescribed methadone or buprenorphine could still be suffering from the disability of methadone or buprenorphine dependence, because of the severity and disabling nature of withdrawals if they were not able to maintain their treatment regime.

These cases established that discrimination of people on the basis that they were on a pharmacotherapy program could be disability discrimination and would be unlawful.

HIV and Hepatitis-C related discrimination is also unlawful.

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

The Charter of Human Rights and Responsibilities

Victoria is also one of only two jurisdictions in Australia that has specific human rights legislation (along with the ACT). The Victorian Charter of Human Rights & Responsibilities 2006 is an Act of Parliament that sets out basic rights and freedoms, and the responsibilities that go with them. The Charter focuses on civil and political rights, and includes democratic rights such as the right to vote and freedom of expression, protection from forced work, the right to privacy, the right to a fair trial, cultural rights.

Government departments and public bodies must observe these rights when they create laws, set policies and provide services. This means that Government, public servants, local councils, Victoria Police and others are required to act in a way that is consistent with the human rights protected under the Charter. These bodies must comply with the Charter and take human rights into account in their day-to-day operations.

Penalties for discriminatory actions vary, depending which tribunal or court is involved. Complaints about discrimination under the Victorian Equal Opportunity Act can be made to the Victorian Equal Opportunity and Human Rights Commission and other complaints commissions such as the Health Services Commission.

How to complain about discrimination

There is no additional right to legal action for a breach of the Human Rights Charter. The focus of the Charter is about getting things right at a planning and policy stage, rather than awarding compensation. It is designed to ensure the Government anticipates and prevents potential human rights infringements.

However, the Charter allows a person to raise a human rights argument in a court or tribunal in an existing case. The government is required to take your rights into consideration when they make a decision that affects you.

If you feel your rights have been not been given respect seek advice from a lawyer or a community legal centre. It is a good idea to seek legal advice before considering legal proceedings. When complaints handling bodies such as the Health Services Commission and the Victorian Equal Opportunity & Human Rights Commission deal with existing complaints they also need to give consideration to human rights.

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 Victorian Civil and Administrative Tribunal that 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.

Additionally, the Victorian Ombudsman investigates complaints about the Victorian government departments, most statutory authorities and local government. Under the Charter, the Ombudsman’s office has the power to investigate whether any administrative action is incompatible with a human right.

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’

Drugs, Poisons and Controlled Substances Act 1981 – Part 5 of this legislation sets out offences for the use, possession, supply, trafficking, manufacture and cultivation of drugs of dependence and narcotic plants. This law sets out paraphernalia laws and police investigation and stop and search powers. This law also contains offences for the unauthorised possession, supply and sale of prescription medicine. It also adopts the SUSMP.

Australian Poisons Standard (The Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP)) – is a national law containing 9 Schedules which classify drugs, medicines and poisons according to their potential for harm, abuse, addiction and the need for special controls and regulation of sale and supply. The schedules are updated regularly to make many new synthetic drugs illegal in the states and territories.

Crimes Act 1958 – sets out police investigation powers including search and arrest powers and procedures. Sets out sexual offences and offences against the person such as intentionally or knowingly infecting another person with a transmissible disease or recklessly causing grievous bodily harm which might be used to prosecute a person with HIV who infects another person.

Road Safety Act 1986 – Part 6 sets out general motor vehicle offences including drink and drug driving offences and penalties.

Sex Work Act 1994 – regulates the sex work industry in Victoria.

Sex Work Regulation 2006 – sets out additional safety and testing requirements and outlines rules for advertising.

Public Health and Welfare Act 2008 – Part 8sets out offences of causing or risking serious or material harm to public health. Defines notifiable conditions. Gives powers to authorised offices to take action to control or reduce the threat or spread of a notifiable condition. Gives the Chief Health Officer the power to give health directions requiring a person who has a controlled notifiable condition to undergo testing, treatment or counselling or be detained. Part 8 Division 10 sets out additional sex work requirements relevant to the prevention of STI or BBV transmission

Public Health and Welfare Regulation 2009 – Schedule 4 lists categories of notifiable conditions. Schedule 6 lists information to be provided when notifying a notifiable condition other than HIV or AIDS).

Victorian Equal Opportunity Act 2010 – sets out Victorian discrimination law.

Charter of Rights and Responsibilities Act 2006 – sets out human rights which the government are obliged to protect and respect when making decisions which affect you.