Drug Misuse and Trafficking Act 1985

The Act casts a wide net. Primary offenders are any person who possesses (s 10), self-administers (s 12), supplies (s 25), manufactures (s 24), or cultivates (s 23) a prohibited drug or plant. Because “supply” and “take part in” are defined expansively (ss 3(1), 6), liability extends to financiers, landlords who knowingly permit use, and persons who merely agree to supply. Corporations and their directors or managers face accessorial and executive-liability regimes (ss 43A–43B).

Users of the licensed injecting centre (s 36N) and staff engaged in its conduct (s 36O) receive statutory exemptions, but only while inside the centre and for exempt quantities. Owners or occupiers of premises that become “drug premises” (s 36TA) are affected by the strict liability-style offences in ss 36Y–36Z. Children under 16 exposed to cultivation or manufacture trigger aggravated offences (ss 23A, 24(1A), 33AC–33AD), affecting parents or guardians who permit such exposure.

Legitimate actors are also affected. Medical practitioners, pharmacists, and veterinary practitioners must comply with prescription rules (ss 15–18). Researchers require Secretary of Health authorities (ss 10(2)(b), 23(4)(b), 24(4)(b)). Low-THC hemp cultivators and poppy licensees are carved out (ss 8A–8B, 41A) but remain subject to record-keeping and licensing under their respective Acts. Precursor purchasers and apparatus owners must ensure they fall within the industry-use defence (s 35A) or possess a reasonable excuse (ss 11B(2), 11C(2), 24B(2)).

Police officers exercising seizure, testing, and destruction powers (Part 3A) and the Commissioner of Police issuing directions under s 39Q are subject to statutory procedures designed to preserve evidence and chain of custody. The Local Court and District Court are required to apply complex alternative-verdict pathways (e.g. ss 23(1B)–(3A), 30–31) and quantity presumptions (s 29).

Finally, the Act affects the broader community through forfeiture (ss 35, 36ZC), advertising bans (ss 11A, 36ZG), and the regulatory oversight of the single licensed injecting centre.

Duties fall heaviest on prohibited actors. A person in possession of a prohibited drug must prove any exculpatory circumstance (s 10(2)). A person supplying a traffickable quantity is presumed to be supplying unless they prove otherwise (s 29). Manufacturers and cultivators must not expose children (ss 23A, 24(1A)). Owners or occupiers must not permit premises to become drug premises (s 36Y). Corporations must ensure directors and managers do not aid offences (s 43B) and must maintain compliance systems to avoid executive liability (s 43A).

Licensees of the injecting centre owe statutory duties to observe internal management protocols (s 36I(b)), exclude children from the injecting area (s 36I(a)), and comply with licence conditions (s 36H). Supervisors must ensure clinical oversight (s 36L(b)). Staff must ascertain age where relevant (s 36L(e)) and maintain child-protection expertise on site (s 36L(f)).

Police officers must record exhibits before destruction (ss 39G(3), 39I(3), 39K(1)(c)), give 28 days’ notice where practicable (ss 39I(2), 39K(2)), and comply with quantity-review procedures (s 39M). The Commissioner of Police may direct retention for controlled operations but must ensure secure storage (s 39Q(3)(a)).

Rights are conferred mainly through defences and exemptions. A person lawfully prescribed a drug may possess and self-administer it (ss 10(2)(c)–(d), 12(2)). A person with a reasonable excuse may possess manufacturing instructions (s 11C(2)(d)), tablet presses (s 11B(2)(b)), or precursors (s 24B(2)(b)). The industry-use defence in s 35A protects persons dealing with listed substances in Schedule 2 when they cannot be readily extracted or are contained in non-consumable products used in lawful industry. Users inside the licensed injecting centre enjoy statutory immunity for small-quantity possession and self-administration (s 36N). Staff enjoy immunity for conduct of the centre (s 36O). Civil liability is excluded for good-faith acts (s 36P).

An accused may apply to the Local Court for a quantity-review order if there has been a substantial departure from testing protocols or real doubt about the certificate (s 39M(4)). Lawful owners may seek return of seized substances (s 39O). The Act preserves the prerogative of mercy (s 33A(4)) and does not affect recognizances, bail conditions, or Drug Court programs (s 36N(3)).

Penalties are graduated by quantity and culpability. Summary offences carry 20 penalty units or 2 years (s 21), although many specific offences have lower maxima (e.g. s 18B(3): 20 penalty units or 12 months). Indictable offences start at 2,000 penalty units or 15 years (or 10 years for cannabis) (s 32), rise to 3,500 penalty units or 20 years for commercial quantities (s 33), and reach life imprisonment where a large commercial quantity is involved (s 33(3)). Child-supply or child-exposure offences attract uplifts of one-fifth or specific higher maxima (ss 33AA, 33AC–33AD). Ongoing supply carries 3,500 penalty units or 20 years (s 25A(1)).

Enforcement is multi-layered. Police may seize drugs and plants (s 39) and apply for destruction orders (Part 3A). Qualified officers (superintendents or above) may order destruction after representative sampling (s 39CA), subject to notice and recording requirements. The Local Court oversees quantity-review applications (s 39M) and summary disposal elections (ss 30–31). Forfeiture of money, documents, firearms, and apparatus occurs on conviction (s 36ZC). The responsible authorities (Police Commissioner and Health Secretary) license and regulate the injecting centre, with power to fine, suspend, or revoke (s 36J).

Evidentiary aids are generous: certificates of analysis (s 43), Health Secretary certificates (s 42), and presumptions arising from quantity (s 29) or representation (s 40). The Act creates reverse onuses for certain defences (ss 11B(2), 11C(2), 23(4)(a), 24B(2), 35A, 40A).

The Act is expressly subordinate to the Poisons and Therapeutic Goods Act 1966 (s 8). Authorisations under that Act for possession, manufacture, or supply provide complete defences (ss 10(2)(a), 11(2)(c), 13(2)(a), 23(4)(b), 24(4)(a), 25(4)(a)). Similar carve-outs exist for low-THC hemp (s 8A) and poppy licences (s 8B, s 41A).

Procedure is governed by the Criminal Procedure Act 1986. Chapters 5 and 6 govern summary disposal of indictable offences (ss 30–31) and committal. The Bail Act 2013 and Crimes (Sentencing Procedure) Act 1999 apply to bail and sentencing. The Law Enforcement (Controlled Operations) Act 1997 and Police Act 1990 Part 10A interact with s 39Q controlled-use directions.

The Hemp Industry Act 2008 and Poppy Industry Act 2016 authorise otherwise prohibited conduct; the Drug Misuse Act defers to those authorisations. The Environmental Planning and Assessment Act 1979 is disapplied for the injecting centre (s 36Q). The Interpretation Act 1987 supplies general definitions (note to s 3).

Common-law principles of complicity are supplemented by the statutory aiding, abetting, and conspiracy provisions (ss 19–20, 26–28). The Criminal Code (Cth) Part 9.1 controlled drugs interact with the psychoactive-substance regime (s 36ZE(1)(i)).

The most significant recent amendments are contained in the Drug Misuse and Trafficking Amendment (Appointed Persons) Act 2023, which expanded the class of persons who may issue certificates of identity and quantity for cannabis under s 43(5). The Executive Director of the Royal Botanic Gardens and Domain Trust and prescribed persons may now appoint suitably qualified staff. This change was driven by operational bottlenecks in forensic analysis and the need to scale up rapid testing capacity without compromising evidentiary integrity. Validation provisions (Sch 3 cl 5) protect past certificates.

The Justice Legislation Amendment Act (No 2) 2018 inserted s 39CA, permitting identity to be determined after initial weighing by representative sampling. This addressed practical difficulties in weighing bulky cannabis crops before identification and was accompanied by validation of earlier testing practices (Sch 3 cl 4).

The Drug Misuse and Trafficking Amendment (Drug Exhibits) Act 2016 comprehensively rewrote Part 3A. It replaced fragmented destruction rules with a unified regime allowing earlier destruction of non-contentious exhibits, introduced quantity-review applications, and clarified police powers. The reform responded to police concerns about storage costs, occupational health risks, and backlogs in the forensic system.

Earlier changes—insertion of Part 2C in 2013, child-exposure offences in 2006, and the 2010 overhaul of the injecting-centre regime—reflect evolving policy: moving from pure prohibition toward a balanced public-health and law-enforcement model while closing loopholes exploited by new synthetic substances and indoor hydroponic operations.

Although the Act has generated voluminous litigation, few cases have struck down its core provisions. The reverse onus in s 29 (traffickable quantity = presumed supply) has been upheld as compatible with the presumption of innocence under the Human Rights Act 2004 (ACT) and common-law principles; courts construe the “proves otherwise” limb reasonably (R v Gu [2008] NSWCCA 258). Challenges to the width of “supply” (s 3) and “take part in” (s 6) have generally failed; financing or providing premises can constitute supply (R v Reardon [2008] NSWCCA 64).

The injecting-centre exemptions (ss 36N–36P) have been upheld against claims of unconstitutional delegation or improper purpose. Controversy persists around the single-centre limitation (s 36A) and whether it constitutes an unjustified restriction on harm-reduction services. Periodic reviews required by s 36C have repeatedly recommended continuation, citing reduced overdoses and public amenity benefits.

Evidentiary challenges under Part 3A have focused on whether destruction before trial breaches procedural fairness or the right to examine evidence. The quantity-review mechanism (s 39M) and the presumption on appeal (s 39N) were inserted to address these concerns. Courts have emphasised that the Crown must still prove the substance was a prohibited drug beyond reasonable doubt; certificates are only prima-facie evidence (s 43(2)).

Sentencing controversies centre on the “large commercial quantity” thresholds that trigger life imprisonment. Appellate courts have stressed that life is a maximum, not a starting point, and have developed guideline judgments for supply (Wong v The Queen (1999) 199 CLR 295 principles applied in NSW). The child-exposure aggravations (ss 23A, 33AD) have produced debate about the breadth of “expose” and the defence that exposure did not endanger health or safety (s 23A(6)).

Most practitioners miss the interaction between the representation rule (s 40) and the psychoactive-substance offences (s 36ZF). Even if a substance is not pharmacologically active, if it is represented as producing a psychoactive effect it is deemed to be a psychoactive substance. Courts may look at advertising or usage instructions even if they disclaim human consumption (s 36ZF(3)–(4)).

The “order or disposition” deeming rule (s 7) catches joint possessors and persons who have drugs under their control even if not on their person. In premises cases, the entire occupier’s circle of control can be caught.

Quantity calculations under Schedule 1 are not straightforward. For mixtures, the whole weight is taken (s 4), but discrete dosage units (column 6) only apply to certain drugs and only when prepared as single doses. The large-commercial-quantity uplift (s 33(3)) applies only if the court is affirmatively satisfied of that quantity; otherwise the standard commercial penalty applies.

Part 3A destruction regimes contain hidden timing traps. A substance cannot be destroyed while a quantity-review application is pending (s 39M(6)). The 28-day notice period (ss 39I(2), 39K(2)) is not required for small quantities of non-traffickable drugs (s 39G(4), s 39I(5)), but evidence-recording is still mandatory in most cases.

The ongoing-supply offence (s 25A) requires the jury to be unanimous on the same three occasions; separate counts can still be laid for the underlying supplies. Double-jeopardy protections are unusually detailed (s 25A(5)–(7)).

Directors can be liable even if the corporation is not prosecuted (s 43B(5)). The “reasonable steps” defence under executive-liability provisions (s 43A(2)(c)(ii)) requires evidence of proactive compliance systems, not merely absence of knowledge.

Finally, the single-licence limit in s 36A is often overlooked; any new injecting centre requires the existing licence to be surrendered or revoked first. This has generated controversy in areas with high overdose rates outside the current centre’s catchment.

Compliance begins with classification. Any business or individual dealing with chemicals, plants, or medicines must consult Schedule 1 and the Poisons List. If a substance appears in Schedule 1, a Poisons and Therapeutic Goods authorisation or Secretary’s authority is mandatory for any possession, manufacture, or supply outside the narrow statutory exceptions.

Manufacturers and suppliers of precursors or apparatus listed in the regulations made under ss 24A–24B must maintain records demonstrating lawful purpose. The industry-use defence (s 35A) requires proof that the substance cannot be readily extracted or is contained in a non-consumable product used in lawful industry; internal policies should document extraction-impossibility testing.

For premises owners, regular audits and lease clauses prohibiting illegal drug activity are essential. If a premises is suspected of being used as drug premises, immediate eviction or police notification is advisable to avoid s 36Y liability. Child-protection policies must be in place where indoor cultivation occurs.

Health practitioners must record every prescription of a drug of addiction, retain patient histories for two months prior (s 18), and never issue prescriptions without verifying recent use. Pharmacists must refuse forged or suspiciously altered scripts (s 16).

Organisations wishing to operate an injecting centre must satisfy the responsible authorities on community consultation, building compliance, internal protocols, and economic viability. Once licensed, continuous auditing against the protocols is mandatory; any contravention can lead to fines, suspension, or revocation (s 36J).

Police and forensic services must follow Part 3A to the letter: weigh, photograph, sample in accordance with regulations, give notice where required, and retain sufficient quantity for re-testing if a quantity-review application is likely. Failure can result in the exhibit being excluded or the charge reduced.

All entities should maintain a “reasonable excuse” file: invoices, licences, research ethics approvals, or disposal certificates. In any investigation, immediate legal advice is required because the reverse onus provisions shift the evidentiary burden once the Crown proves the physical elements.

Finally, regular training on new psychoactive substances is essential. Because s 36ZE excludes only listed categories, any novel compound not caught by the Poisons List or the Therapeutic Goods Act 1989 (Cth) may fall within the psychoactive-substance net if supplied for human consumption.