An Act to amend the Drug Misuse and Trafficking Act 1985 to make further provision in relation to the prohibition of the manufacture, supply, possession and use of certain drugs; and for other purposes.
1 Name of Act
This Act is the Drug Misuse and Trafficking Amendment Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Drug Misuse and Trafficking Act 1985 No 226
The Drug Misuse and Trafficking Act 1985 is amended as set out in Schedule 1.
4 Amendment of other legislation
The Young Offenders Act 1997 and the Young Offenders Regulation 2004 are amended as set out in Schedule 2.
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
(Section 3)
[1] Section 11A Sale, supply and display of waterpipes and ice pipes
Insert in alphabetical order in section 11A (1):ice pipe means:(a) a device capable of being used for the administration of a prohibited drug by means of the smoking or inhaling of the smoke or fumes resulting from the heating or burning of the drug in a crystal or powder form, orand includes a device known as an ice pipe or a crack pipe, but does not include a device of a class or description prescribed by the regulations as not being an ice pipe for the purposes of this section.(b) a device that is apparently intended to be such a device but that is not capable of being so used because it needs an adjustment, modification or addition,
[2] Section 11A (2) (a) and (b) and (3)
Insert “or an ice pipe” after “waterpipe” wherever occurring.
[3] Section 11A (4)
Insert “or ice pipe” after “waterpipe”.
[4] Section 22 Indictable prosecution
Omit section 22 (1). Insert instead:(1) Subject to the provisions of this Division and the Criminal Procedure Act 1986, an offence under this Division is to be prosecuted on indictment.
[5] Section 24 Manufacture and production of prohibited drugs
Insert after section 24 (1):(1A) A person who:(a) manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug, andis guilty of an offence.(b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,
[6] Section 24 (2A)
Insert after section 24 (2):(2A) A person who:(a) manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug, andis guilty of an offence.(b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,
[7] Section 24 (3)–(3B)
Omit section 24 (3). Insert instead:(3) If, on the trial of a person for an offence under subsection (2) or (2A), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (1A), respectively, and the person is liable to punishment accordingly.(3A) It is a defence to a prosecution for an offence under subsection (1A) or (2A) if the defendant establishes that the exposure of the child to the prohibited drug manufacturing or production process, or to substances being stored for use in that manufacturing or production process, did not endanger the health or safety of the child.(3B) If, on the trial of a person for an offence under subsection (1A) or (2A), the jury:(a) is not satisfied that a child was exposed to a prohibited drug manufacturing or production process, or to substances being stored for use in such a manufacturing or production process, orthe jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly.(b) is satisfied that the defence referred to in subsection (3A) has been made out,
[8] Section 24 (5)
Insert after section 24 (4):(5) In this section, child means a person who is under the age of 16 years.
[9] Section 24A Possession of precursors for manufacture or production of prohibited drugs
Omit “cash sale” from section 24A (2A). Insert instead “sale and storage”.
[10] Section 25 Supply of prohibited drugs
Insert after section 25 (2B):(2C) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person is guilty of an offence.(2D) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.(2E) It is a defence to a prosecution for an offence under subsection (2C) or (2D) if the defendant establishes that the defendant had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person who was procured to supply, or take part in the supply of, the prohibited drug was of or above the age of 16 years.
[11] Section 25 (3)
Insert “or (2D)” after “subsection (2)”.
[12] Section 25 (3)
Insert “or (2C), respectively” after “subsection (1)”.
[13] Sections 30 (1) (b) and (e) and 31 (1) (b) and (e)
Insert “or (1A)” after “24 (1)” wherever occurring.
[14] Sections 30 (1) (c) and (e) and 31 (1) (c) and (e)
Omit “25 (1) or (1A)” wherever occurring.Insert instead “25 (1), (1A) or (2C)”.
[15] Section 33AC
Insert after section 33AB:33AC Penalties for offences involving manufacture or production in presence of children or procuring children to supply prohibited drugs(1) This section applies to the following offences:(a) an offence under section 24 (1A) or (2A) or 25 (2C) or (2D),(b) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a),(c) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a),(d) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 24 (1A) or (2A) or 25 (2C) or (2D).(2) The penalty for an offence under section 24 (1A) or 25 (2C), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 24 (1A) or 25 (2C), is a fine of 2,400 penalty units or imprisonment for 18 years, or both.(3) The penalty for an offence under section 24 (2A) or 25 (2D), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 24 (2A) or 25 (2D), is a fine of 4,200 penalty units or imprisonment for 25 years, or both.(4) Despite subsection (3), if the court is satisfied that an offence referred to in that subsection involved not less than the large commercial quantity of the prohibited drug concerned, the penalty for the offence is a fine of 6,000 penalty units or imprisonment for life, or both.(5) In this section:large commercial quantity, in relation to a prohibited drug, means the number or amount, if any, specified opposite the drug in Column 5 of Schedule 1.
[16] Section 35A
Insert after section 35:35A Defence in relation to certain substances used in industry(1) Despite any other provision in this Act, it is not an offence against this Act for:(a) a person to manufacture, produce, possess or supply an industrial product for the purpose of the manufacture or distribution of an industrial product or final stage industrial product, or(b) a person to manufacture, produce, possess or supply a final stage industrial product, or(c) a person to possess or supply a Schedule 2 substance for the purpose of its disposal as waste or its destruction.(2) In this section:distribution means any process or operation necessary for distributing a substance or product to a manufacturer or other distributor.final stage industrial product means:(a) an article or substance that does not contain any Schedule 2 substance or any other prohibited drug, or(b) an industrial product:(i) from which a Schedule 2 substance cannot be readily extracted or readily synthesized, orand that does not contain any other prohibited drug.(ii) contains less than the concentration of Schedule 2 substance prescribed by the regulations,industrial product means an article or substance:(a) that is not for human consumption, and(b) that is or contains a Schedule 2 substance.manufacture means any process or operation necessary for manufacturing a substance or product.Schedule 2 substance means any substance listed in Schedule 2.(3) In this section, a reference to the manufacture, production, possession or supply of a substance or product includes taking part in the manufacture, production, possession or supply of the substance or product.
[17] Section 39A
Omit the section. Insert instead:39A Meaning of “minimum amount”In this Division, minimum amount, in relation to a prohibited drug, means the traffickable quantity of the prohibited drug.
[18] Part 3A, Division 2B
Insert after Division 2A of Part 3A:Division 2B Order for disposal of substances when no likely prosecution39PB Order for disposal of substances by certain senior police officers when no likely prosecution(1) A police officer of or above the rank of Superintendent may order that a prohibited drug, or a substance that the officer reasonably suspects is a prohibited drug, seized by a member of NSW Police be destroyed if:(a) the amount of the prohibited drug (or of the prohibited drug that the officer reasonably suspects the substance to be) is less than the traffickable quantity of the drug, and(b) no person has been charged with an offence with respect to the prohibited drug or substance and the officer is of the opinion that no person is likely to be charged.(2) Before any prohibited drug or substance is destroyed in accordance with such an order:(a) evidence of the substance or article is to be recorded, whether by photographing or otherwise, and(b) if the police officer concerned determines that it is appropriate, two samples of the drug or substance are to be taken and retained, each of a sufficient quantity to allow its analysis.(3) Subject to subsection (2), any prohibited drug or substance (whether seized before or after the commencement of this section) may be destroyed in accordance with an order under this section.
[19] Section 39RA Use of prohibited plants and prohibited drugs in controlled operations and integrity testing programs
Omit section 39RA (5). Insert instead:(5) Despite any other Act or law to the contrary, the functions of the Commissioner of Police under this section may not be delegated except to:(a) a Deputy Commissioner of Police, or(b) a person holding a NSW Police Senior Executive Service position to whom the function under section 6 (1) of the Law Enforcement (Controlled Operations) Act 1997 of authorising the conduct of a controlled operation has been delegated in accordance with that Act.
[20] Section 40A Proof of certain matters
Omit “24 (4) or 25 (4)” from section 40A (2).Insert instead “24 (4), 25 (4) or 35A”.
[21] Section 43 Certificate evidence
Insert at the end of paragraph (b) of the definition of analyst in section 43 (6):, and(c) a person who:(i) is an analyst (however described) under a law of another State or Territory that corresponds to this Act, and(ii) is, or belongs to a class, prescribed by the regulations for the purposes of this definition.
[22] Section 44A
Insert after section 44:44A Amendment of Schedule 2The Governor may, from time to time, by regulation amend Schedule 2:(a) by adding the name or description of or relating to a substance, or(b) by amending a name or description of or relating to a substance for the purpose of more accurately describing the substance.
[23] Section 45 Regulations
Omit section 45 (3). Insert instead:(3) A regulation may create an offence punishable by a penalty, including a distinct penalty in the case of a second or subsequent offence, not exceeding:(a) 150 penalty units in the case of a corporation, or(b) 50 penalty units in the case of an individual.
[24] Schedule 1
Insert in appropriate order:
[25] Schedule 1
Omit “, except 4-Hydroxy-butanoic acid lactone (also known as gamma butyrolactone as referred to in Schedule 2 to the Drug Misuse and Trafficking Regulation 2000)” from the matter relating to 4-Hydroxybutanoic acid.
[26] Schedule 1
Insert “except in oral liquid form” after “Methadone” in the matter relating to Methadone.
[27] Schedule 2
Insert after Schedule 1:Schedule 2 Legitimate purpose defence substances(Sections 35A and 44A)1,4-Butanediol (also known as hydroxybutanol or 1,4 BD)Gamma butyrolactone (also known as 4-hydroxybutanoic acid lactone or GBL)
Schedule 2 Amendment of other legislation
(Section 4)
[1] Section 8 Offences covered by Act
Omit section 8 (2) (e1). Insert instead:(e1) the offence is an offence under Division 1 of Part 2 of the Drug Misuse and Trafficking Act 1985 other than an offence to which subsection (2A) applies, or
[2] Section 8 (2A)
Insert after section 8 (2):(2A) An offence under Division 1 of Part 2 of the Drug Misuse and Trafficking Act 1985 is covered by this Act if in the opinion of the investigating official or prosecuting authority:(a) in relation to an offence relating to a prohibited drug other than cannabis leaf within the meaning of the Drug Misuse and Trafficking Act 1985—the offence involves not more than the small quantity applicable to that drug under that Act, or(b) in relation to an offence relating to cannabis leaf:(i) the offence involves not more than half the small quantity of cannabis leaf within the meaning of the Drug Misuse and Trafficking Act 1985, or(ii) there are exceptional circumstances in that:(A) the offence involves more than half, but not more than the total, small quantity of cannabis leaf within the meaning of that Act, and(B) it would be in the interests of rehabilitation, and appropriate in all the circumstances, to deal with the matter under this Act.
Clause 16 Offence for which caution may not be given
Omit the clause.