(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part.
300.5 Particular identity of drugs, plants and precursors
If, in a prosecution for an offence against this Part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance or plant was a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor.
Note: This section applies to a prosecution of an ancillary offence relating to this Part as well as to prosecution of a primary offence against this Part. This is because of:
(a) sections 11.2, 11.2A and 11.3 (which treat certain combinations of physical and fault elements relating to this Part as being offences against this Part); and
(b) section 11.6 (which has the effect that a reference to an offence against this Part includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) that relates to this Part).
300.6 Recklessness as to nature of substance or plant sufficient for offence of attempt to commit an offence against this Part
Despite subsection 11.1(3), for the offence of attempting to commit an offence against this Part, recklessness is the fault element in relation to any of the following physical elements of the offence attempted:
(a) that a substance is a controlled drug (a physical element of an offence against Division 302 or 305 or section 308.1, 309.2, 309.3, 309.4, 309.7 or 309.8);
(b) that a plant is a controlled plant (a physical element of an offence against Division 303 or 304);
(c) that a substance is a controlled precursor (a physical element of an offence against Division 306 or section 308.2, 309.10 or 309.11);
(d) that a substance is a border controlled drug or border controlled plant (a physical element of an offence against Subdivision A, B or C of Division 307 or section 309.12 or 309.13);
(e) that a substance is a border controlled precursor (a physical element of an offence against Subdivision D of Division 307 or section 309.14 or 309.15).
Note: Proof of intention, knowledge or recklessness will satisfy a fault element of recklessness: see subsection 5.4(4).
Division 301—Serious drugs and precursors
Subdivision A—Serious drugs and precursors: definitions
301.1 Meaning of controlled drug
(1) For the purposes of this Part, a controlled drug is a substance, other than a growing plant, that is:
(a) listed by a regulation as a controlled drug; or
(b) a drug analogue of a listed controlled drug; or
(c) determined by the AFP Minister as a controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).
Note: Some conditions must be satisfied before:
(a) a regulation can be made for paragraph (1)(a) (see section 301.7); or
(b) a determination can be made for paragraph (1)(c) (see subsection 301.13(2)).
(2) The purpose of subsection (1) is to permit certain substances that are covered by the TINDAPS Convention, or drug analogues of such substances, to be treated as controlled drugs for the purposes of this Part (see also section 300.1).
Note: For the meaning of drug analogue, see section 301.9.
301.2 Meaning of controlled plant
(1) For the purposes of this Part, a controlled plant is a growing plant that is:
(a) listed by a regulation as a controlled plant; or
(b) determined by the AFP Minister as a controlled plant under section 301.13 (which deals with emergency determinations of serious drugs).
Note: Some conditions must be satisfied before:
(a) a regulation can be made for paragraph (1)(a) (see section 301.7); or
(b) a determination can be made for paragraph (1)(b) (see subsection 301.13(2)).
(2) The purpose of subsection (1) is to permit growing plants that are covered by the TINDAPS Convention to be treated as controlled plants for the purposes of this Part (see also section 300.1).
301.3 Meaning of controlled precursor
(1) For the purposes of this Part, a controlled precursor is a substance (including a growing plant) that is:
(a) listed by a regulation as a controlled precursor; or
(b) a salt or ester of a controlled precursor that is so listed; or
(c) determined by the AFP Minister as a controlled precursor under section 301.14 (which deals with emergency determinations of serious drug precursors).
Note: Some conditions must be satisfied before:
(a) a regulation can be made for paragraph (a) (see section 301.8); or
(b) a determination can be made for paragraph (c) (see subsection 301.14(2)).
(2) The purpose of subsection (1) is to permit certain substances that are covered by the TINDAPS Convention, or salts or esters of such substances, to be treated as controlled precursors for the purposes of this Part (see also section 300.1).
301.4 Meaning of border controlled drug
(1) A border controlled drug is a substance, other than a growing plant, that is:
(a) listed by a regulation as a border controlled drug; or
(b) a drug analogue of a listed border controlled drug; or
(c) determined by the AFP Minister as a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).
Note 1: Some conditions must be satisfied before:
(a) a regulation can be made for paragraph (a) (see section 301.7); or
(b) a determination can be made for paragraph (c) (see subsection 301.13(2)).
Note 2: For the meaning of drug analogue, see section 301.9.
(2) However:
(a) the regulations may provide that a listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to particular offences against this Part, or particular elements of those offences; and
(b) if the regulations so provide, then the listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to those offences or elements.
(3) To avoid doubt, if a listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to particular offences against this Part, or particular elements of those offences, then a drug analogue of the listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to those offences or elements.
301.5 Meaning of border controlled plant
(1) A border controlled plant is a growing plant:
(a) listed by a regulation as a border controlled plant; or
(b) determined by the AFP Minister as a border controlled plant under section 301.13 (which deals with emergency determinations of serious drugs).
Note: Some conditions must be satisfied before:
(a) a regulation can be made for paragraph (a) (see section 301.7); or
(b) a determination can be made for paragraph (b) (see subsection 301.13(2)).
(2) However:
(a) the regulations may provide that a listed border controlled plant is taken, for the purposes of this Part, to be a border controlled plant only in relation to particular offences against this Part, or particular elements of those offences; and
(b) if the regulations so provide, then the listed border controlled plant is taken, for the purposes of this Part, to be a border controlled plant only in relation to those offences or elements.
301.6 Meaning of border controlled precursor
(1) A border controlled precursor is a substance (including a growing plant) that is:
(a) listed by a regulation as a border controlled precursor; or
(b) a salt or ester of a precursor that is so listed; or
(c) an immediate precursor of a precursor that is so listed; or
(d) determined by the AFP Minister as a border controlled precursor under section 301.14 (which deals with emergency determinations of serious drug precursors).
Note: Some conditions must be satisfied before:
(a) a regulation can be made for paragraph (a) (see section 301.8); or
(b) a determination can be made for paragraph (d) (see subsection 301.14(2)).
(1A) However:
(a) the regulations may provide that a listed border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to particular offences against this Part, or particular elements of those offences; and
(b) if the regulations so provide, then the listed border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to those offences or elements.
(1B) To avoid doubt, if a listed border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to particular offences against this Part, or particular elements of those offences, then a salt, ester or immediate precursor of the listed border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to those offences or elements.
Definition of immediate precursor
(2) In this section:
immediate precursor of a precursor listed for the purposes of paragraph (1)(a) means a chemical or compound (other than another precursor that is so listed) that is an immediate precursor in the manufacture by a chemical process of the listed precursor.
301.7 Serious drugs—conditions for listing by regulation
Before a regulation is made listing a substance or plant as a serious drug for the purposes of this Part, the AFP Minister must be satisfied that:
(a) the substance or plant is likely to be taken without appropriate medical supervision; and
(b) one or more of the following conditions is met:
(i) taking the substance or plant would create a risk of death or serious harm;
(ii) taking the substance or plant would have a physical or mental effect substantially similar to that caused by taking a serious drug that is already listed;
(iii) the substance or plant has the capacity to cause physiological dependence;
(iv) possession or conduct in relation to the substance or plant is proscribed under a law of a State, a Territory or a foreign country that has purposes similar to those of this Part;
(v) the substance or plant poses a substantial risk to the health or safety of the public.
301.8 Serious drug precursors—conditions for listing by regulation
Before a regulation is made listing a substance as a controlled precursor or a border controlled precursor, the AFP Minister must be satisfied that there is a risk that the substance will be used to unlawfully manufacture a controlled drug (other than a determined controlled drug).
301.9 Meaning of drug analogue
(1) A substance is a drug analogue of a listed controlled drug, or a listed border controlled drug, if the substance is any of the following in relation to the listed drug (or in relation to a primary analogue of the listed drug), however the substance is obtained:
(a) one of the following (a primary analogue):
(i) a stereoisomer;
(ii) a structural isomer having the same constituent groups;
(iii) an alkaloid;
(c) a structural modification obtained in one or more of the following ways:
(i) by the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures;
(ii) by the addition of hydrogen atoms to one or more unsaturated bonds;
(iii) by the replacement of one or more of the groups or atoms specified in subsection (2) with one or more of the other groups or atoms specified in that subsection;
(iv) by the conversion of a carboxyl or an ester group into an amide group;
(d) any other homologue, analogue, chemical derivative or substance substantially similar in chemical structure.
Note: Some substances are taken, for the purposes of this Part, to be drug analogues only in relation to particular offences against this Part, or particular elements of those offences: see subsection 301.4(3).
(2) The following groups and atoms are specified:
(a) alkoxy, cyclic diether, acyl, acyloxy, mono‑amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue;
(b) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon;
(c) halogen, hydroxy, nitro or amino groups;
(d) hydrogen atoms.
(3) However:
(a) a drug analogue of a listed controlled drug does not include a substance that is itself a listed controlled drug; and
(b) a drug analogue of a listed border controlled drug does not include a substance that is itself a listed border controlled drug.
(4) In this section:
addition has its ordinary meaning.
replacement has its ordinary meaning.
Subdivision B—Serious drugs and precursors: commercial, marketable and trafficable quantities
301.10 Meaning of commercial quantity
For the purposes of this Part, a commercial quantity of a serious drug, controlled precursor or border controlled precursor is a quantity not less than that provided by the following table:
Commercial quantities of serious drugs and precursors
Item Serious drug or precursor Commercial quantity (minimum)
1 A serious drug (other than a drug analogue), controlled precursor or border controlled precursor Either:(a) the quantity listed as a commercial quantity of the drug or precursor in a regulation made for the purposes of this section; or(b) the quantity determined as a commercial quantity of the drug or precursor by the AFP Minister under section 301.15 (which deals with emergency determinations of quantities).
2 A drug analogue of 1 or more listed controlled drugs Either:(a) for a drug analogue of a single listed controlled drug—the commercial quantity of the listed drug; or(b) for a drug analogue of 2 or more listed controlled drugs—the smallest commercial quantity of any of the listed drugs.
3 A drug analogue of 1 or more listed border controlled drugs Either:(a) for a drug analogue of a single listed border controlled drug—the commercial quantity of the listed drug; or(b) for a drug analogue of 2 or more listed border controlled drugs—the smallest commercial quantity of any of the listed drugs.
Note: A drug analogue of a listed controlled drug, or a listed border controlled drug, is itself a controlled drug or border controlled drug (see paragraphs 301.1(b) and 301.4(1)(b), and the definition of drug analogue in section 301.9).
301.11 Meaning of marketable quantity
For the purposes of this Part, a marketable quantity of a serious drug, controlled precursor or border controlled precursor is a quantity not less than that provided by the following table:
Marketable quantities of serious drugs and precursors
Item Serious drug or precursor Marketable quantity (minimum)
1 A serious drug (other than a drug analogue), controlled precursor or border controlled precursor Either:(a) the quantity listed as a marketable quantity of the drug or precursor in a regulation made for the purposes of this section; or(b) the quantity determined as a marketable quantity of the drug or precursor by the AFP Minister under section 301.15 (which deals with emergency determinations of quantities).
2 A drug analogue of 1 or more listed controlled drugs Either:(a) for a drug analogue of a single listed controlled drug—the marketable quantity of the listed drug; or(b) for a drug analogue of 2 or more listed controlled drugs—the smallest marketable quantity of any of the listed drugs.
3 A drug analogue of 1 or more listed border controlled drugs Either:(a) for a drug analogue of a single listed border controlled drug—the marketable quantity of the listed drug; or(b) for a drug analogue of 2 or more listed border controlled drugs—the smallest marketable quantity of any of the listed drugs.
Note: A drug analogue of a listed controlled drug, or a listed border controlled drug, is itself a controlled drug or border controlled drug (see paragraphs 301.1(b) and 301.4(1)(b), and the definition of drug analogue in section 301.9).
301.12 Meaning of trafficable quantity
For the purposes of this Part, a trafficable quantity of a controlled drug or a controlled plant is a quantity not less than that provided by the following table:
Trafficable quantities of controlled drugs and plants
Item Controlled drug or plant Trafficable quantity (minimum)
1 A controlled drug (other than a drug analogue) or a controlled plant Either:(a) the quantity listed as a trafficable quantity of the drug or plant in a regulation made for the purposes of this section; or(b) the quantity determined as a trafficable quantity of the drug or plant by the AFP Minister under section 301.15 (which deals with emergency determinations of quantities).
2 A drug analogue of 1 or more listed controlled drugs Either:(a) for a drug analogue of a single listed controlled drug—the trafficable quantity of the listed drug; or(b) for a drug analogue of 2 or more listed controlled drugs—the smallest trafficable quantity of any of the listed drugs.
Note: A drug analogue of a listed controlled drug is itself a controlled drug (see paragraph 301.1(b) and the definition of drug analogue in section 301.9).
Subdivision C—Serious drugs and precursors: emergency determinations
301.13 Emergency determinations—serious drugs
(1) The AFP Minister may, by legislative instrument, determine that:
(a) a substance, other than a growing plant, is a controlled drug or a border controlled drug; or
(b) a growing plant is a controlled plant or a border controlled plant.
(1A) However:
(a) a determination made under subsection (1) may provide that:
(i) a determined border controlled drug is taken, for the purposes of this Part, to be a border controlled drug; or