Misuse of Drugs Act 2001

Misuse of Drugs Act 2001

An Act to prohibit the misuse of drugs and activities associated with the misuse of drugs and for related purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Misuse of Drugs Act 2001 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

child means a person who has not attained the age of 18 years;

conceal, in relation to something, includes conceal or disguise –

(a) its source or nature; or

(b) its location or movement; or

(c) the rights of any person in relation to it; or

(d) the identity of its owner;

controlled drug means a substance, other than a growing plant, specified or described in Part 2 of Schedule 1 ;

controlled plant means a plant specified in Part 3 of Schedule 1 or any part of such a plant;

controlled precursor means a substance specified or described in Part 4 of Schedule 1 ;

controlled substance means a controlled drug, controlled plant or controlled precursor;

conveyance includes an aircraft, vehicle or vessel;

cultivate includes –

(a) plant a seed, seedling or cutting; and

(b) graft, divide or transplant a plant; and

(c) nurture, tend or grow a plant; and

(d) guard or conceal a plant against discovery or interference, whether by humans or natural predators; and

(e) harvest a plant, whether by picking part of the plant, by separating resin or another substance from the plant or by other means;

manufacture means any process by which a substance is produced, other than the cultivation of a plant, and includes –

(a) the process of extracting or refining a substance; and

(b) the process of transforming the substance into a different substance;

[Section 3 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010]

place includes premises;

[Section 3 Subsection (1) amended by No. 7 of 2012, s. 23, Applied:01 Jul 2012] Poisons List has the same meaning as in the Poisons Act 1971 ;

[Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]

premises includes a conveyance;

prepare, in relation to supplying a drug, includes –

(a) packaging the drug; and

(b) separating the drug into discrete units;

product, of a plant, includes –

(a) a seed of the plant; and

(b) a part of the plant, whether live or dead; and

(c) a substance prepared from the plant;

regulations means regulations made and in force under this Act;

search warrant means a warrant issued under the Search Warrants Act 1997 ;

sell means sell, whether by wholesale or retail, and includes –

(a) agree to sell; and

(b) offer, or expose, for sale; and

(c) keep, or possess, for sale; and

(d) deal in, barter or exchange; and

(e) send, forward, deliver or receive for sale; and

(f) authorise, direct, cause, permit or suffer any of those things to be done;

supply, in relation to a substance, includes –

(a) administer the substance, whether orally, subcutaneously or by other means; and

(b) offer or agree to supply the substance;

traffic, in relation to a controlled substance, includes –

(a) sell the substance; and

(b) prepare the substance for supply with the intention of selling it or in the belief that another person intends to sell it; and

(c) transport the substance with the intention of selling it or in the belief that another person intends to sell it; and

(d) guard or conceal the substance with the intention of selling it or in the belief that another person intends to sell it; and

(e) [Section 3 Subsection (1) amended by No. 77 of 2005, s. 4, Applied:15 Dec 2005] possess the substance with the intention of selling it; and

(f) [Section 3 Subsection (1) amended by No. 77 of 2005, s. 4, Applied:15 Dec 2005] import the substance into Tasmania with the intention of selling it or in the belief that another person intends to sell it;

[Section 3 Subsection (1) amended by No. 77 of 2005, s. 4, Applied:15 Dec 2005]

transport includes deliver.

(2)  For the purposes of this Act, a person is taken to engage in an activity if the person –

(a) participates in the activity; or

(b) controls or directs the activity; or

(c) provides finance or another resource that allows the activity to be carried on.

(3)  Without restricting the generality of the expression "possession", a controlled substance is taken to be in a person's possession for the purposes of this Act so long as it is on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person's order and disposition, unless the person proves that he or she had no knowledge of the substance.

3A.   Meaning of "trafficable quantity" and determining "aggregated trafficable quantity"

[Section 3A Inserted by No. 77 of 2005, s. 5, Applied:15 Dec 2005]

(1)  In this Act –

trafficable quantity, of a controlled substance, means –

(a) in the case of a controlled drug that is not mixed with or contained in any other substance, a quantity of the controlled drug that is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug; and

(b) in the case of a controlled drug that is mixed with or contained in another substance where the combined quantity of the substances is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug, any quantity; and

(c) in the case of a controlled plant, a quantity of the controlled plant that is not less than the quantity specified in column 3 of the table in Part 3 of Schedule 1 in relation to the controlled plant; and

(d) in the case of a controlled precursor, a quantity of the controlled precursor that is not less than the quantity specified in column 3 of the table in Part 4 of Schedule 1 in relation to the controlled precursor; and

(e) in the case of 2 or more controlled substances together, an aggregated trafficable quantity of the controlled substances.

(2)  To determine, for the purpose of this Act, whether a quantity of 2 or more controlled substances together constitutes an aggregated trafficable quantity –

(a) the quantity of each of the controlled substances is to be calculated as a fraction of the trafficable quantity of that controlled substance; and

(b) the fractions calculated under paragraph (a) are to be added together; and

(c) the quantity is to be taken to constitute an aggregated trafficable quantity if the total of those fractions so added together is equal to or greater than the number "1".

4.   Relationship with other Acts

[Section 4 Amended by No. 42 of 2015, s. 40, Applied:02 Mar 2016] Nothing in this Act affects any provision made by or under the Poisons Act 1971 or the Industrial Hemp Act 2015 or renders unlawful anything done in accordance with any such provision.

PART 2 - Major offences

Division 1 - Proceedings on offences

5.   Offences in this Part are indictable offences

The offences in this Part are indictable offences.

Division 2 - Manufacturing and cultivation

6.   Manufacturing controlled drug for sale

(1)  A person must not manufacture a controlled drug –

(a) with the intention of selling the controlled drug; or

(b) in the belief that another person intends to sell the controlled drug.

Penalty:  Imprisonment for a term not exceeding 21 years.

(2)  [Section 6 Subsection (2) amended by No. 9 of 2004, s. 4, Applied:27 May 2004] If it is proved in proceedings for an offence under subsection (1) that the accused manufactured a trafficable quantity of a controlled drug, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the manufactured drug required to constitute the offence.

(3)  [Section 6 Subsection (3) omitted by No. 9 of 2004, s. 4, Applied:27 May 2004] .  .  .  .  .  .  .  .  

7.   Cultivating controlled plant for sale

(1)  A person must not cultivate a controlled plant –

(a) with the intention of selling the controlled plant or any of its products; or

(b) in the belief that another person intends to sell the controlled plant or any of its products.

Penalty:  Imprisonment for a term not exceeding 21 years.

(2)  [Section 7 Subsection (2) amended by No. 9 of 2004, s. 5, Applied:27 May 2004] If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence.

(3)  [Section 7 Subsection (3) omitted by No. 9 of 2004, s. 5, Applied:27 May 2004] .  .  .  .  .  .  .  .  

8.   Possessing thing intended for use in manufacture of controlled substance for sale

A person must not possess any equipment, instruction or other thing –

(a) with the intention of using it to manufacture and sell a controlled substance; or

(b) with the intention of using it to manufacture a controlled substance in the belief that another person intends to sell the controlled substance.

Penalty:  Imprisonment for a term not exceeding 21 years.

9.   Possessing thing intended for use in cultivation of controlled plant for sale

A person must not possess any equipment, instruction or other thing with the intention of using it to –

(a) cultivate and sell a controlled plant; or

(b) cultivate a controlled plant in the belief that another person intends to sell the controlled plant.

Penalty:  Imprisonment for a term not exceeding 21 years.

10.   Manufacturing controlled precursor intended for use in manufacture of controlled drugs for sale

(1)  A person must not manufacture a controlled precursor –

(a) with the intention of manufacturing and selling a controlled drug; or

(b) with the intention of manufacturing a controlled drug in the belief that another person intends to sell the controlled drug.

Penalty:  Imprisonment for a term not exceeding 21 years.

(2)  A person must not manufacture a controlled precursor –

(a) with the intention of selling the controlled precursor; and

(b) in the belief that the person to whom the controlled precursor is sold intends to use it to manufacture a controlled drug.

Penalty:  Imprisonment for a term not exceeding 21 years.

11.   Selling controlled precursor for use in manufacturing controlled drug

A person must not sell a controlled precursor in the belief that the person to whom the controlled precursor is sold, or another person, intends to use it to manufacture a controlled drug.

Penalty:  Imprisonment for a term not exceeding 21 years.

Division 3 - Trafficking and supply

12.   Trafficking in controlled substance

(1)  A person must not traffic in a controlled substance.

Penalty:  Imprisonment for a term not exceeding 21 years.

(2)  [Section 12 Subsection (2) amended by No. 9 of 2004, s. 6, Applied:27 May 2004] If it is proved in proceedings for an offence under subsection (1) that the accused –

(a) prepared a trafficable quantity of a controlled substance for supply; or

(b) transported a trafficable quantity of a controlled substance; or

(c) guarded or concealed a trafficable quantity of a controlled substance; or

(d) [Section 12 Subsection (2) amended by No. 77 of 2005, s. 6, Applied:15 Dec 2005] possessed a trafficable quantity of a controlled substance; or

(e) [Section 12 Subsection (2) amended by No. 77 of 2005, s. 6, Applied:15 Dec 2005] imported a trafficable quantity of a controlled substance into Tasmania –

it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled substance required to constitute the offence.

(3)  [Section 12 Subsection (3) omitted by No. 9 of 2004, s. 6, Applied:27 May 2004] .  .  .  .  .  .  .  .  

13.   Procuring child to traffic in controlled substance

(1)  A person must not procure a child to traffic in a controlled substance.

Penalty:  Imprisonment for a term not exceeding 21 years.

(2)  For the purposes of this section, a person is taken to have procured a child to traffic in a controlled substance if the person –

(a) procures the child to sell the controlled substance; or

(b) with the intention of selling the controlled substance or in the belief that another person intends to sell it, procures the child to prepare the controlled substance for supply or to transport the controlled substance.

14.   Supplying controlled drug to child

A person must not supply a controlled drug to a child.

Penalty:  Imprisonment for a term not exceeding 21 years.

Division 4 - Property derived from major offences

15.   Interpretation of Division

(1)  In this Division –

drug offence means an offence under Division 2 or 3 of this Part;

proceeds, in relation to a drug offence, includes –

(a) the proceeds of any sale involved in committing the offence; and

(b) any remuneration or other reward for committing the offence;

property means real or personal property, including things in action and other intangible property;

property derived from a drug offence does not include a controlled drug, controlled plant or controlled precursor.

(2)  For the purposes of this Division –

(a) property is taken to be directly derived from a drug offence if it is –

(i) all or part of the proceeds of the offence; or

(ii) wholly or partly acquired by disposing of, or using, the proceeds of the offence; and

(b) property is taken to be indirectly derived from a drug offence if it is wholly or partly acquired by disposing of, or using –

(i) property directly derived from the offence; or

(ii) property indirectly derived from the offence, including any property indirectly derived by virtue of the previous operation of subparagraph (i) ; and

(c) property that has been directly or indirectly derived from a drug offence does not lose that status merely by being deposited with an authorised deposit-taking institution or elsewhere for credit to an account or for investment.

16.   Concealing, &c., property derived from drug offence

A person who knows that any property is directly or indirectly derived from a drug offence must not –

(a) conceal the property; or

(b) transfer the property; or

(c) convert the property; or

(d) remove the property from Tasmania –

with the intention of evading or helping another person evade –

(e) prosecution for a drug offence; or

(f) the imposition or enforcement of a pecuniary penalty for a drug offence; or

(g) the making or enforcement of an order for the confiscation or forfeiture of the property or any part of it.

Penalty:  Imprisonment for a term not exceeding 21 years.

17.   Receiving property directly derived from drug offence

(1)  A person must not receive any property if the person –

(a) has no legal entitlement to the property; and

(b) knows that the property is directly derived from a drug offence committed by another person.

Penalty:  Imprisonment for a term not exceeding 21 years.

(2)  For the purposes of this section, property to which a person is legally entitled extends to property that is received by way of testamentary disposition, as reasonable payment for the supply of goods or services or in repayment of a lawful debt but does not extend to property received wholly or partly by way of gift.

PART 3 - Minor offences

Division 1 - Proceedings on offences

18.   Offences in this Part are summary offences

The offences in this Part are summary offences.

19.   Time for instituting proceedings

(1)  A prosecution for an offence under this Part may be instituted at any time within 2 years after the commission of the offence.

(2)  Subsection (1) has effect notwithstanding section 26 of the Justices Act 1959 or any other law.

Division 2 - Manufacturing and cultivation

20.   Manufacturing controlled precursor

A person must not manufacture a controlled precursor.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

21.   Manufacturing controlled drug

A person must not manufacture a controlled drug.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

22.   Cultivating controlled plant

A person must not cultivate a controlled plant.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

Division 3 - Possession, use and administration

23.   Possessing thing used for administration of controlled drug

A person must not possess a utensil, appliance or other thing that is –

(a) used or designed to be used in connection with the preparation, smoking, inhalation, administration or taking of a controlled drug or controlled plant; or

(b) apparently intended, after some adjustment, addition or other modification, to be used in connection with the preparation, smoking, inhalation, administration or taking of a controlled drug or controlled plant.

Penalty:  Fine not exceeding 50 penalty units.

24.   Possessing, using or administering controlled drug

A person must not –

(a) possess a controlled drug; or

(b) use a controlled drug; or

(c) administer a controlled drug to another person.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

25.   Possessing or using controlled plant or its products

A person must not possess or use –

(a) a controlled plant; or

(b) a controlled plant product.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

Division 4 - Sale and supply

26.   Selling or supplying controlled drug

A person must not sell or supply a controlled drug to another person.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years.

27.   Selling or supplying controlled plant or its products

A person must not sell or supply to another person –

(a) a controlled plant; or

(b) a controlled plant product.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years.

Division 5 - Miscellaneous

27A.   Unlawful importation of controlled substance

[Section 27A Inserted by No. 77 of 2005, s. 7, Applied:15 Dec 2005] A person must not import a controlled substance into Tasmania unless the person is authorised to do so by or under another law of the State.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

28.   Unlawful conduct in relation to prescriptions

(1)  In this section –

blank prescription form means –

(a) a form that the Commission established under section 4 of the Health Insurance Commission Act 1973 of the Commonwealth has supplied or caused to be supplied to a health professional for the purposes of writing a prescription in accordance with the National Health (Pharmaceutical Benefits) Regulations 1960 of the Commonwealth; or

(b) a form that a health professional has privately prepared or caused to be prepared for the purpose of writing a prescription, being a form that identifies, and purports to be a prescription form of, that health professional;

conduct includes the making of an oral or written representation;

[Section 28 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010]

[Section 28 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] health professional means –

(a) a medical practitioner; and

(b) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist; and

(c) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the nursing profession who is endorsed by the Nursing and Midwifery Board of Australia to practise as a nurse practitioner; and

(d) a person who may lawfully practise as a veterinary surgeon, whether in this State or in a Territory or another State.

prescription means a prescription of a health professional, for the supply of a substance comprising or consisting of a controlled drug or controlled precursor;

unlawfully altered, in relation to a prescription, means altered by a person other than the health professional who issued it.

(2)  A person must not –

(a) forge a prescription; or

(b) possess a prescription knowing it to have been forged or unlawfully altered; or

(c) utter a prescription knowing it to have been forged or unlawfully altered.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

(3)  A person must not unlawfully alter a prescription.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

(4)  A person must not obtain a prescription by means of conduct that the person knows to be false, misleading or deceptive.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

(5)  A person must not, without lawful excuse, possess a blank prescription form.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.

PART 4 - Enforcement

Division 1 - Police powers

29.   Power to seize controlled substances, &c.

(1)  In this section,

prescribed belief means a reasonable belief that a controlled substance or other thing in relation to which an offence under this Act has been committed is –

(a) [Section 29 Subsection (1) amended by No. 77 of 2005, s. 8, Applied:15 Dec 2005] in the possession of a person in any place; or

(b) [Section 29 Subsection (1) amended by No. 77 of 2005, s. 8, Applied:15 Dec 2005] on or in a conveyance in any place; or

(c) [Section 29 Subsection (1) amended by No. 77 of 2005, s. 8, Applied:15 Dec 2005] on an animal in any place.

(2)  A police officer who has a prescribed belief may, without warrant and with such assistance as the police officer reasonably considers necessary, take such one or more of the following actions as may be applicable in the circumstances:

(a) search the relevant person and detain that person for the purpose of carrying out the search;

(b) search the relevant conveyance or animal and detain it for the purpose of carrying out the search;

(c) seize the relevant conveyance or animal;

(d) seize anything that may be evidence of an offence under this Act.

(2A)  [Section 29 Subsection (2A) inserted by No. 77 of 2005, s. 8, Applied:15 Dec 2005] However, subsection (2) does not apply to private premises unless the police officer forms the prescribed belief only after having lawfully entered the premises.

(3)  The police officer, and any person assisting the police officer, may use such force as is necessary and reasonable in the circumstances.

(4)  A police officer who searches or is empowered to search a person pursuant to subsection (2) or any other Act may arrest the person without warrant if the police officer reasonably believes that the person has committed an offence under this Act.

(5)  In this section, a reference to a search of a person includes a reference to any clothing worn by the person and anything that may be in the person's possession.

30.   Power to conduct personal searches

(1)  In this section –

body cavity means rectum or vagina;

strip search means a search, other than a body cavity search ordered by a magistrate under this section, in which the person searched is required to remove most or all of his or her clothes.

(2)  [Section 30 Subsection (2) amended by No. 77 of 2005, s. 9, Applied:15 Dec 2005] Where a police officer detains a person for the purpose of search under section 29 or 33 , the following provisions apply:

(a) if the person is female and it is proposed to conduct a strip search, a female police officer is to conduct it;

(b) if the person is male and it is proposed to conduct a strip search, a male police officer is to conduct it;

(c) if the search involves the application of force to the person, the police officer must give the Commissioner of Police a written report about the search within 7 days, including particulars of the circumstances that gave rise to the application of force;

(d) if the police officer reasonably suspects that a controlled substance may be present in one or more of the person's body cavities and wishes to determine whether or not that is the case, the police officer must cause the person to be brought before a magistrate;

(e) the magistrate before whom the person is brought may make an order that the person's body cavity or cavities specified in the order may be searched by a medical practitioner.

(3)  The magistrate's order, if made, is sufficient authority for a medical practitioner to search the person's body cavity or cavities specified in the order.

(4)  Notwithstanding subsection (3)  –

(a) the person is first to be told that he or she may ask for the search to be conducted by a medical practitioner of the same sex as that person; and

(b) if the person does so ask, the search is not to be conducted except by a medical practitioner of that sex unless it is not reasonably practicable in the circumstances for such a medical practitioner to be present.

(5)  The magistrate's order also authorises –

(a) a medical practitioner who is to conduct the search to ask another person to help with the search; and

(b) the other person to give that help.

(6)  Unless it is not reasonably practicable in the circumstances, the person asked to help is to be of the same sex as the person to be searched.

(7)  If the person subject to the magistrate's order refuses or fails to submit to the search, the medical practitioner and the helper, if any, may use reasonable force to enable the search to be conducted.

31.   Power to require information

(1)  A police officer who seizes a controlled substance or other thing under a search warrant or section 29 may require the person from whom the controlled substance or thing was seized to state –

(a) the person's name and the address of the person's place of residence or of the place where the person proposes next to reside; and

(b) the place at which, and the person from whom, the first-mentioned person obtained the controlled substance or thing.

(2)  A person must not –

(a) fail to comply with a requirement made under subsection (1) in relation to the particulars referred to in paragraph (a) of that subsection; or

(b) without reasonable excuse, fail to comply with a requirement made under subsection (1) in relation to the particulars referred to in paragraph (b) of that subsection when it is within the person's power so to comply; or

(c) in response to a requirement made under subsection (1) , give information that the person knows to be false or misleading.

Penalty:  Fine not exceeding 10 penalty units.

(3)  A police officer who searches or is empowered to search a person under a search warrant or section 29 may arrest the person without warrant if –

(a) the person fails to comply with a requirement made under subsection (1) ; or

(b) in response to such a requirement, the person gives information that the police officer reasonably believes to be false or misleading.

32.   Power to pursue suspect onto private property

Where –

(a) a police officer reasonably believes that a person has committed an offence under this Act; and

(b) the person flees from the police officer's presence while the police officer, or another police officer, is trying to arrest the person or exercise another power under this Act in relation to the person; and

(c) the police officer, or another police officer, immediately pursues the person and the pursuit continues without interruption; and

(d) during the pursuit the person enters a private residence or another place that is not a public place –

the pursuing police officer may, without warrant and using no more force than is reasonably necessary for the purpose, enter the private residence or other place notwithstanding that it is not a public place.

33.   Power when executing search warrant

A police officer executing a search warrant in relation to any place may –

(a) arrest without warrant any person found at the place who the police officer reasonably believes has committed an offence under this Act; and

(b) search any person found at the place and detain any such person for that purpose.

Division 2 - Matters relevant to proceedings

34.   Prosecution witness need not disclose source of information

A witness for the prosecution in proceedings under this Act is not obliged to disclose –

(a) the fact that the witness received any information; or

(b) the nature of any information received by the witness; or

(c) the name of the person who gave the witness any information.

35.   Offences by bodies corporate

(1)  If a body corporate commits an offence under this Act each person concerned in the management of the body corporate is taken also to have committed the offence and may be convicted of the offence unless the person proves that the act or omission constituting the offence took place without the person's knowledge or consent or contrary to the person's orders or directions.

(2)  A person referred to in subsection (1) may be convicted of an offence under this Act whether or not the body corporate is charged with or convicted of the offence.

36.   Children not liable for conduct constituting certain offences

A person is not criminally liable for an offence under section 13 or 14 if, at the time of the conduct constituting the offence, the person was a child.

36A.   Alternative convictions

[Section 36A Inserted by No. 9 of 2004, s. 7, Applied:27 May 2004]

(1)  A person who is indicted for but found not guilty of an offence under section 6(1) may be convicted of an offence under section 21 if the evidence in the proceedings on the indictment establishes that the person committed that other offence.

(2)  A person who is indicted for but found not guilty of an offence under section 7(1) may be convicted of either or both of the following offences if the evidence in the proceedings on the indictment establishes that the person committed that other offence or, if applicable, those other offences:

(a) an offence under section 22 ;

(b) an offence under section 25 .

(3)  [Section 36A Subsection (3) amended by No. 77 of 2005, s. 10, Applied:15 Dec 2005] A person who is indicted for but found not guilty of an offence under section 12(1) may be convicted of an offence under section 24 , 25 or 27A if the evidence in the proceedings on the indictment establishes that the person committed that other offence.

(4)  This section has effect despite anything to the contrary in Chapter XXXIX of Part IX of the Criminal Code .

36B.   Costs of analysis or examination

[Section 36B Inserted by No. 9 of 2004, s. 7, Applied:27 May 2004]

(1)  In this section,

analyst has the same meaning as in the Poisons Act 1971 .

(2)  Where, for proceedings under this Act, the prosecutor has caused the substance or plant to which the proceedings relate to be analysed or examined by an analyst, the court may, in case of a conviction, assess the reasonable expense of and attending the analysis or examination and award it against the defendant as part of the costs of the prosecutor.

(3)  In addition to the costs, if any, under subsection (2) , the court may assess and award against the defendant –

(a) as part of the costs of the prosecutor, the expenses incurred by the prosecutor while engaged in travelling to and attending the trial, including the proportionate part of the prosecutor's salary while so engaged; and

(b) if an analyst has given evidence in the proceedings, such costs in respect of the analyst's attendance as the court may determine.

Division 3 - Forfeiture and disposal

37.   Crown becomes owner of controlled substances, &c., that are seized, surrendered or found

[Section 37 Substituted by No. 77 of 2005, s. 12, Applied:15 Dec 2005]

(1)  This section applies if a controlled substance or prescription form is –

(a) seized by a police officer under a search warrant or section 29 ; or

(b) voluntarily surrendered to a police officer; or

(c) found by a police officer.

(2)  The controlled substance or prescription form –

(a) becomes the property of the Crown as soon as it is seized, surrendered or found; and

(b) may be disposed of as the Minister directs.

37A.   Disposal, &c., of evidence that cannot be practicably or safely held

[Section 37A Inserted by No. 77 of 2005, s. 12, Applied:15 Dec 2005]

(1)  In this section –

evidentiary material means a controlled substance or hazardous chemical that –

(a) has been seized by or otherwise come into the possession of a police officer; and

(b) is or could be relevant to proceedings or prospective proceedings for an offence against this Act;

hazardous chemical means a chemical or other substance that –

(a) is used or capable of being used in connection with the manufacture of a controlled substance; and

(b) is, by reason of its combustibility, volatility, toxicity or some other quality, unsafe or potentially unsafe.

(2)  This section applies if the Commissioner of Police is satisfied on reasonable grounds that it is impracticable or unsafe to hold or continue holding any evidentiary material.

(3)  The Commissioner of Police may cause the evidentiary material to be –

(a) rendered safe or inert (if necessary by treating, repackaging or breaking up the material); or

(b) destroyed or otherwise disposed of.

(4)  However, before any action is taken under subsection (3) , the Commissioner of Police must –

(a) if the evidentiary material is or could be relevant to indictable proceedings or prospective indictable proceedings against this Act, consult the Director of Public Prosecutions; and

(b) ensure that –

(i) 2 or more samples are taken of the evidentiary material; and

(ii) each of those samples is a true representation of the nature of the evidentiary material.

(5)  The Commissioner must ensure that the samples so taken are kept securely for as long as they are reasonably likely to be required for evidentiary purposes.

(6)  The Minister may –

(a) issue the Commissioner of Police with written guidelines regarding the administration of this section; and

(b) amend or rescind any such guidelines.

(7)  The Commissioner of Police must comply with the Minister's guidelines.

(8)  The Minister's guidelines are not –

(a) statutory rules for the purposes of the Rules Publication Act 1953 ; or

(b) instruments of a legislative character for the purposes of the Subordinate Legislation Act 1992 .

38.   Forfeiture of property on conviction

A court that convicts or finds a person guilty of an offence under this Act may, in addition to any other order that it may make, order that any property of the person used in the commission of the offence is forfeited to the Crown.

Division 4 - Authorisation of possession and supply for certain purposes

38A.   Interpretation of Division

[Section 38A of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016]

(1)  In this Division –

ancillary action, in relation to an authorisation, means an action that is –

(a) directly related to achieving an authorised purpose; and

(b) reasonably required to be carried out in order to enable that purpose to be achieved;

authorisation means an authorisation issued under section 38B(1) ;

authorised person means a person to whom an authorisation has been issued under section 38B(1) ;

authorisation purpose, in relation to an authorisation, means a purpose specified, in accordance with section 38B(4)(b) , in the authorisation;

correctional officer means a person, appointed under section 5 of the Corrections Act 1997 , whose duties under that Act include the training or use of dogs in the detection of controlled substances;

Director of Corrective Services means the Director of Corrective Services appointed under section 5 of the Corrections Act 1997 ;

employee means a person employed in any Agency of which the Commissioner of Police is the Head of Agency.

(2)  Without limiting the generality of the meaning of supply in section 3 , supply, in relation to a controlled substance –

(a) includes transport and delivery, or either, of the controlled substance; but

(b) does not include sale or use, or provision for use, of the controlled substance for any purpose other than an authorisation purpose specified in the authorisation in accordance with which the supply occurs.

38B.   Authorisation of possession and supply of controlled substances for certain purposes

[Section 38B of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016]

(1)  The Commissioner of Police may authorise –

(a) a police officer; or

(b) an employee; or

(c) a correctional officer –

(an authorised person) to possess and supply controlled substances for the purposes, for which the authorisation may be issued, that are specified in the authorisation, and to carry out any ancillary actions.

(2)  The purposes for which an authorisation may be issued are –

(a) for the training, and use, by police officers or correctional officers, of dogs used, or to be used, in the detection of controlled substances; and

(b) for the transport and delivery of samples of controlled substances to –

(i) other police officers or correctional officers; or

(ii) other persons who are police officers for the purposes of an Act of another State, a Territory or the Commonwealth.

(3)  An authorisation must be in writing and signed by the Commissioner of Police.

(4)  An authorisation must specify the following:

(a) the name of the authorised person to whom the authorisation relates;

(b) the purposes for which the authorised person has been issued the authorisation;

(c) the conditions, if any, on which the authorisation has been issued;

(d) the period, of not more than one year, for which the authorisation remains in effect;

(e) the date on which the authorisation is signed by the Commissioner of Police.

(5)  The Commissioner of Police is only to issue to a person an authorisation that is to be in effect for a period that is as long as is reasonably necessary to enable the authorisation purposes to be fulfilled.

(6)  Despite any other Act or law of this jurisdiction, an authorised person who engages in conduct (whether in this jurisdiction or otherwise) that, but for this section, would constitute an offence is not criminally responsible in relation to the conduct if he or she engages in the conduct under and in accordance with an authorisation in relation to him or her that is in effect.

38C.   Variation or cancellation of authorisation

[Section 38C of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016]

(1)  The Commissioner of Police –

(a) may vary or cancel an authorisation at any time; and

(b) must cancel an authorisation if he or she is satisfied that the authorisation is no longer necessary.

(2)  The Commissioner of Police must give to an authorised person written notice of the variation or cancellation of the authorisation.

(3)  A notice under subsection (2) must specify why the authorisation to which the notice relates is varied or cancelled.

(4)  A notice under subsection (2) of the variation or cancellation of an authorisation to which the notice relates takes effect –

(a) on the day on which the notice is given to the person; or

(b) if the notice specifies that it takes effect on a later day – on the day so specified.

38D.   Powers under Division non-delegable

[Section 38D of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016] Despite this or any other Act, the Commissioner of Police may not delegate to another person, or authorise another person to exercise, a power of the Commissioner of Police under section 38B or 38C .

38E.   Authorisation does not limit other powers

[Section 38E of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016] Nothing in this Division is to be taken to require a police officer to be authorised for purposes other than an authorisation purpose.

38F.   Authorised person to provide report about authorisation

[Section 38F of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016]

(1)  An authorised person must, as soon as practicable after –

(a) the end of each financial year in which his or her authorisation was in effect; or

(b) his or her authorisation ceases to be in effect –

provide to the Commissioner of Police a written report in relation to the authorisation.

(2)  A report, by an authorised person under subsection (1) , in relation to an authorisation is to contain the following details:

(a) the quantity, and a description, of each controlled substance that was possessed by the authorised person, or supplied by the authorised person to another person, under the authorisation;

(b) any ancillary actions taken by the authorised person;

(c) the name of any other person to whom a controlled substance was supplied by the authorised person under the authorisation and the address at which the controlled substance was so supplied;

(d) if the controlled substance was supplied by the authorised person to another person for delivery to a third person, the name and address of the third person to whom the controlled substance was to be delivered;

(e) each day in which the authorised person was in possession of the controlled substance.

38G.   Commissioner of Police to keep certain records

[Section 38G of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016] The Commissioner of Police must cause to be kept records of –

(a) all authorisations; and

(b) all notices under section 38C ; and

(c) all reports provided to him or her under section 38F(1) .

38H.   Commissioner of Police to report to Ombudsman

[Section 38H of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016]

(1)  The Commissioner of Police is to provide to the Ombudsman, as soon as practicable after the end of each financial year, a report (an operational report) containing –

(a) the number of authorisations issued during the financial year; and

(b) the purposes for which the authorisations were issued; and

(c) a summary of the details specified in each report received by the Commissioner of Police under section 38F(1) .

(2)  The summary included, in the report under subsection (1) , in accordance with subsection (1)(c) is not required to contain any details that may, in the opinion of the Commissioner of Police, compromise the lawful carrying out of the duties of a police officer.

38I.   Reports by Ombudsman

[Section 38I of Part 4 Inserted by No. 7 of 2016, s. 4, Applied:20 May 2016]

(1)  The Ombudsman must, as soon as practicable after receiving an operational report under section 38H(1) , prepare a report setting out –

(a) a summary of the matters provided in the operational report; and

(b) the Ombudsman's opinion as to the comprehensiveness and adequacy of the records of the Commissioner of Police kept under section 38G ; and

(c) the Ombudsman's opinion as to whether the authorisations to which the operational report relates have been effective and appropriate; and

(d) the Ombudsman's comments and suggestions as to how the issue, supervision and implementation of authorisations may be improved.

(2)  The Ombudsman must include his or her report under subsection (1) in the annual report prepared in accordance with section 30 of the Ombudsman Act 1978 .

PART 5 - Miscellaneous

39.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.

(3)  The Governor may make regulations of a savings or transitional nature consequent on the enactment of this Act.

(4)  A provision of a regulation made pursuant to subsection (3) may, if the regulation so provides, take effect on the day proclaimed under section 2 or a later day.

40.   Amendment of Schedule 1

(1)  In this section,

component means a clause, subclause, paragraph or subparagraph.

(2)  The Governor may, by order, amend Part 1 of Schedule 1 by doing any one or more of the following:

(a) inserting a new component or expression;

(b) omitting a component or expression;

(c) omitting a component or expression and substituting another component or expression.

(3)  The Governor may, by order, amend Part 2 , 3 or 4 of Schedule 1 by doing any one or more of the following:

(a) inserting a new item in any table;

(b) omitting an item from any table;

(c) omitting an item from any table and substituting another item.

(4)  The provisions of section 47(3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 apply to an order under this section as if the order were regulations within the meaning of that Act.

41.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and

(b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.

SCHEDULE 1 - Controlled substances and trafficable quantities

Sections 3 and 40

PART 1 - Interpretation

1.   In this Schedule –

(a) [Part 1 of Schedule 1 Amended by No. 7 of 2012, s. 24, Applied:01 Jul 2012] .  .  .  .  .  .  .  .  

(b) the letter "S", followed immediately by a number, is a reference to the schedule to the Poisons List having that number; and

(c) a reference to a substance ("the relevant substance") includes –

(i) every salt, active principle or derivative of the relevant substance and every salt of such an active principle or derivative; and

(ii) a preparation or admixture containing any proportion of the relevant substance; and

(iii) every ester or ether of the relevant substance and every salt of such an ester or ether; and

(iv) every substance that is, in relation to the relevant substance, a stereoisomer or structural isomer (with the same constituent groups); and

(v) every substance that is, in relation to a substance referred to in paragraph (iv) , a substance of a kind described in paragraph (i) , (ii) or (iii) ; and

(vi) any substance that is otherwise a homologue, analogue or chemical derivative of, or substantially similar in chemical structure to, the relevant substance.

PART 2 - Controlled drugs

PART 3 - Controlled plants

PART 4 - Controlled precursors