Drug Misuse and Trafficking Act 1985

This Act may be cited as the Drug Misuse and Trafficking Act 1985.

Sections 1 and 2 shall commence on the date of assent to this Act.

Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette, being a day that is not earlier than the day appointed and notified under section 2 (2) of the Search Warrants Act 1985.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

analyst means any of the following—

a person employed by the Government of New South Wales as an analyst for the purposes of this Act (including a person employed as an analyst in the NSW Health Service),

a person who is an analyst within the meaning of the Poisons and Therapeutic Goods Act 1966,

a person who is, or belongs to a class, prescribed by the regulations for the purposes of this definition.

cannabis leaf means any plant or part of a plant of the genus Cannabis by whatever name that plant or part may be called, and includes the achene and seed of any such plant, but does not include—

cannabis oil,

any fibre of any such plant or part from which the resin has been extracted, or

cannabis plant.

cannabis oil means any liquid containing tetrahydrocannabinol.

cannabis plant means any growing plant of the genus Cannabis.

cannabis resin means the separated resin (whether crude or purified) obtained from cannabis leaf, but does not include cannabis oil.

commercial quantity, in relation to a prohibited plant or a prohibited drug, means a number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 4 of Schedule 1.

cultivate, in relation to a prohibited plant, includes—

sow or scatter the seed produced by the prohibited plant, and

plant, grow, tend, nurture or harvest the prohibited plant.

cultivation by enhanced indoor means, in relation to a prohibited plant, means cultivation of the plant—

that occurs inside a building or structure, and

that involves any one or more of the following—

the nurture of the plant in nutrient-enriched water (with or without mechanical support),

the application of an artificial source of light or heat,

suspending the plant’s roots and spraying them with nutrient solution.

discrete dosage unit, in relation to a prohibited drug, means an amount of the prohibited drug, not greater than the amount, if any, specified opposite the prohibited drug in Column 6 of Schedule 1, which is prepared or apparently prepared for the purpose of being administered as a single dose.

drug encapsulator means a device that is capable of being used to produce a prohibited drug in a capsule or similar form, and includes a unique part of any such device.

heroin means diamorphine and includes the salts of diamorphine.

indictable quantity, in relation to a prohibited plant or a prohibited drug, means the number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 3 of Schedule 1.

low-THC hemp has the same meaning as in the Hemp Industry Act 2008.

manufacture, in relation to a prohibited drug, includes the process of extracting or refining the prohibited drug.

owner, in relation to any premises, includes the person entitled to receive the rent of the premises and the person to whom the rent of the premises is paid.

Poisons List means the list proclaimed under section 8 of the Poisons and Therapeutic Goods Act 1966, being that list as in force for the time being.

premises includes any structure, building, aircraft, vehicle, vessel or place (whether built upon or not), and any part of any such structure, building, aircraft, vehicle, vessel or place.

prepared opium means any preparation of opium in a form capable of being used for the purpose of smoking, and includes dross and any other residues remaining after opium has been smoked.

profession includes business, trade and industry.

prohibited drug means any substance, other than a prohibited plant, specified in Schedule 1.

prohibited plant means—

a cannabis plant cultivated by enhanced indoor means, or

a cannabis plant cultivated by any other means, or

any growing plant of the genus Erythroxylon or of the species Papaver Somniferum, Papaver orientale or Papaver bracteatum, or

any growing plant of a description specified in an order in force under subsection (2),

but does not include any growing plant, referred to in paragraph (a), (a1) or (b), of a description prescribed for the purposes of this definition.

psychoactive substance—see section 36ZD.

regulations means regulations made under this Act.

Schedule 9 substance means a Schedule 9 substance within the meaning of the Poisons and Therapeutic Goods Act 1966.

sell includes sell whether by wholesale or retail and barter and exchange, and also includes dealing in, agreeing to sell, or offering or exposing for sale, or keeping or having in possession for sale, or sending, forwarding, delivering or receiving for sale or on sale, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.

small quantity, in relation to a prohibited plant or a prohibited drug, means the number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 2 of Schedule 1.

substance includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers.

supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.

tablet press means a device that is capable of being used to produce a prohibited drug in a pill, tablet or other similar form, and includes a unique part of such a device.

traffickable quantity, in relation to a prohibited plant or a prohibited drug, means the number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 1 of Schedule 1.

veterinary practitioner has the same meaning as in the Veterinary Practice Act 2003.

wholesale means supply for the purposes of resale.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

For the purposes of paragraph (c) of the definition of prohibited plant in subsection (1), the Minister may, by order published in the Gazette, declare any description of any plant that in the opinion of the Minister is capable of being used for the purpose of producing a prohibited drug to be a prohibited plant.

Notes included in this Act do not form part of this Act.

In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.

In this Act, a reference to the use or administration of a prohibited drug includes a reference to the ingestion, injection and inhalation of a prohibited drug, the smoking of a prohibited drug, the inhalation of fumes caused by the heating or burning of a prohibited drug and any other means of introducing a prohibited drug into any part of the body of a person.

For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug or psychoactive substance if—

the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply,

the person provides or arranges finance for any such step in that process, or

the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates.

For the purposes of this Act and the regulations, a prohibited drug, Schedule 9 substance (not being a prohibited drug) or prohibited plant in the order or disposition of a person, or that is in the order or disposition of the person jointly with another person by agreement between the persons, shall be deemed to be in the possession of the person.

Nothing in this Act affects any provision made by or under the Poisons and Therapeutic Goods Act 1966 or renders unlawful anything done in accordance with any such provision.

Nothing in this Act affects any provision of or made under the Hemp Industry Act 2008 or renders unlawful anything done in accordance with any such provision.

Without limiting the generality of subsection (1), nothing in this Act renders unlawful—

cultivating or supplying, or taking part in cultivating or supplying, low-THC hemp under the authority conferred by the Hemp Industry Act 2008, or

manufacturing or producing, or taking part in manufacturing or producing, low-THC hemp or anything containing low-THC hemp if that hemp was cultivated or supplied under the authority conferred by the Hemp Industry Act 2008 or under a corresponding authority, or

possessing low-THC hemp or anything containing low-THC hemp if that hemp was cultivated or supplied under the authority conferred by the Hemp Industry Act 2008 or under a corresponding authority.

In this section, corresponding authority has the same meaning as in the Hemp Industry Act 2008.

Nothing in this Act affects any provision of or made under the Poppy Industry Act 2016 or renders unlawful anything done in accordance with any such provision.

An offence under this Division shall be prosecuted summarily before the Local Court.

A person who has a prohibited drug in his or her possession is guilty of an offence.

Nothing in this section renders unlawful the possession of a prohibited drug by—

a person licensed or authorised to have possession of the prohibited drug under the Poisons and Therapeutic Goods Act 1966,

a person acting under a poppy licence under the Poppy Industry Act 2016,

a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the possession of the prohibited drug is for the purpose of scientific research, instruction, analysis or study,

a person acting in accordance with a direction given by the Commissioner of Police under section 39Q,

a person for or to whom the prohibited drug has been lawfully prescribed or supplied, or

a person who—

has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and

has the prohibited drug in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply.