Drugs of Dependence Regulation 2009

The regulation introduces three categories of controlled substances: drugs of dependence, prohibited substances, and small quantities for each. The categories are mutually exclusive: a substance cannot be both a drug of dependence and a prohibited substance. Drugs of dependence are defined by reference to part 1.1 of schedule 1 to the Criminal Code Regulation 2005, which covers “controlled medicines”. Prohibited substances are defined by reference to part 1.2 of that schedule, which covers substances such as cannabis, MDMA, heroin, LSD, and psilocybine. In both cases the definition also captures “related drugs”, a term defined in section 5(2) of the Criminal Code Regulation. That means any substance that is structurally or pharmacologically related to a listed drug, or that is represented as being that drug, can also fall under the definition. This extends the net well beyond the explicit list.

The small quantity concept is central. Table 6.1 sets the small quantity for amphetamine, cocaine, and methylamphetamine at 1.5 grams each. Table 6.2 sets quantities for prohibited substances. Most entries in column 3 give a mass threshold: for example, 50 grams for dried cannabis, 150 grams for harvested cannabis, 1 gram for heroin, 1.5 grams for psilocybine. For MDMA, the small quantity is expressed as “5 DDU or 1.5g”. For LSD and lysergic acid it is “5 DDU or 0.001g”. The discrete dosage unit (DDU) is defined in subsection 6(2) as the substance in a form prepared or apparently prepared to be administered as a single dose, containing no more than the quantity stated in column 4 (where applicable). For MDMA, the column 4 DDU is 0.3 grams; for LSD it is 0.0002 grams. The small quantity thus has two alternative measures for those drugs: if the substance is in discrete dosage units, the threshold is 5 units; if it is not (for example, a powder or liquid), the threshold is the mass. This creates evidentiary complexity, because the prosecution must determine the form in which the drug is found.

The regulation also defines “dried cannabis” as cannabis subjected to a drying process, and “harvested cannabis” as cannabis that has been harvested and is not dried cannabis, or that is a mixture of dried and non‑dried cannabis. The small quantity for harvested cannabis is three times that for dried cannabis (150 grams versus 50 grams), reflecting the higher water content. The definition does not include any threshold for living plants, which suggests that the relevant quantity for plants is dealt with elsewhere in the Act or under the Criminal Code Regulation. The regulation does not define “cannabis” itself, leaving that to the Act. The interplay between the form of the substance, the DDU concept, and the pure‑form requirement for LSD items (which uses pure‑form quantity only for items 5 and 6, not for mixtures) creates a layered set of rules that can be difficult to apply in practice, especially when mixtures or impure samples are involved.

The regulation affects every person in the Australian Capital Territory who possesses, cultivates, supplies, or otherwise deals with any substance that falls within the definitions of drug of dependence or prohibited substance. That includes recreational users, medical patients who hold prescriptions for controlled medicines, researchers, pharmacists, doctors, veterinarians, and anyone else who handles these substances in the course of their work. Because the regulation defines the small quantity thresholds, it directly determines whether a person who is found with a particular amount is charged with simple possession (which may be dealt with by a $100 penalty notice or a lesser offence) or with trafficking or supply, which carry far higher penalties. The practical impact is greatest for individuals who use drugs such as cannabis, MDMA, amphetamines, cocaine, heroin, LSD, or psilocybine. The $100 penalty notice provision means that for minor possession - likely meaning quantities below the small quantity - a person may be issued an infringement notice rather than being prosecuted in court, saving the state the cost of prosecution and the individual the cost and stigma of a criminal record. However, that only applies to offences for which an offence notice is available under the Act; the regulation does not specify which offences those are. The police, the Office of the Director of Public Prosecutions, and the Magistrates Court are all affected because they must apply these definitions when charging and adjudicating cases. Pharmacists and doctors who prescribe or supply controlled medicines must be aware that a substance listed as a drug of dependence under part 1.1 of the Criminal Code Regulation is also a drug of dependence under this regulation, and therefore subject to the Act’s record‑keeping, storage, and authority requirements. The cross‑reference to the Criminal Code Regulation means that any addition or removal of substances from that regulation automatically flows into this regulation without further amendment, affecting all persons who use or prescribe those substances. The regulation does not exempt any class of person from the Act’s operation; it merely refines the definitions that the Act uses. It therefore imposes a compliance burden on anyone who might possess quantities near the thresholds, who must be able to accurately measure or count the substance in question.

The regulation itself imposes no direct duties on any person. The duties flow from the Drugs of Dependence Act 1989, the Medicines, Poisons and Therapeutic Goods Act 2008, and other legislation. However, by defining the small quantities, the regulation creates an implied right for a person charged with a possession offence to argue that the quantity in question is below the threshold, and therefore the more serious trafficking or supply provisions should not apply. The definition of DDU and the alternative thresholds for MDMA and LSD give the accused an opportunity to present evidence about the form and purity of the substance to reduce the effective quantity. For example, if a person is found with 1.5 grams of MDMA, but it is in 6 tablets, the DDU threshold is 5 units, so the quantity might be considered above the small quantity (6 DDU being more than 5 DDU). But if the tablets contain less than 0.3 grams each, the total mass is less than 1.5 grams, so the mass threshold would be the applicable one. The interaction of the two alternative measures is not spelled out in the regulation; it is left to the courts to interpret. The regulation also gives the right to a person issued with an offence notice under section 171A of the Act to pay the prescribed penalty of $100 as an alternative to prosecution. That is a significant right: it allows the person to avoid a criminal conviction for a minor offence, provided they accept the penalty. However, a person who wishes to contest the offence cannot simply pay the notice; they must elect to go to court. The regulation does not create any duty to pay the notice; the Act governs the process. For legal practitioners, the key duty is to correctly apply the definitions and thresholds when advising clients. The regulation’s note (section 3) states that notes are explanatory and not part of the regulation, so they have no legal force. That is a duty on interpreters: the note cannot create rights or duties. The regulation also places an implicit duty on the prosecution to prove the quantity and form of the substance, which can be burdensome when the substance is a mixture or when DDUs are involved. For example, for items 5 and 6 in table 6.2 (LSD and lysergic acid), the small quantity of 0.001 grams applies only to the pure form, not to a mixture. If the LSD is on blotter paper, the total mass of the paper and LSD might be far higher than 0.001 grams, but only the pure LSD content counts. That imposes a forensic duty to test the purity, not just the total mass.

The regulation contains only one express penalty: the prescribed penalty of $100 for an offence notice under section 171A(3)(c)(i) of the Act. That is the amount a person must pay if they choose to accept an infringement notice for a minor drug offence. The regulation does not specify which offences are eligible for such notices; that is left to the Act. By setting the amount at $100, the regulation makes minor possession a relatively cheap way for the state to dispose of cases without court proceedings, but it also raises the question of whether $100 is a sufficient deterrent or whether it simply becomes a de facto licensing fee for low‑level use. The value of a penalty unit for offences under this law is $160 for an individual and $810 for a corporation (see the Legislative note at the start of the republication). However, the $100 prescribed penalty for offence notices is not expressed in penalty units; it is a fixed dollar amount. That means it is not indexed to inflation unless the regulation is amended. The small quantities defined in the regulation do not create penalties themselves; they are thresholds that trigger different penalty tiers in the Act. For example, possession of a quantity above the small quantity may be deemed possession for supply, carrying a maximum penalty of imprisonment and larger fines. The regulation thus indirectly determines the severity of the penalty a person faces. Enforcement of the small quantity thresholds falls to police and prosecutors. They must determine the quantity and form of the substance, which may require forensic analysis, weighing, and counting of discrete dosage units. The definition of DDU is particularly tricky: a single ‘dose’ in a tablet may be cut in half, which calls into question whether it is a DDU. The regulation says “prepared, or apparently prepared, to be administered as a single dose”. That requires a subjective assessment by police of the appearance of the substance, which can be challenged. For MDMA, if a tablet is found to contain more than 0.3 grams, it is not captured by the DDU definition (since the DDU definition caps the quantity at column 4 amounts). That means the substance would have to be treated as a bulk powder for quantity purposes, even if it is in tablet form. The regulation does not provide for fractions of a DDU; any residue or partial tablet likely does not count as a DDU. The enforcement cost of testing and classifying substances should not be underestimated. The regulation does not provide any compliance mechanism or inspectorate; that is left to the Act.

The regulation interacts primarily with three other instruments. First, it is made under the Drugs of Dependence Act 1989, and its sole function is to define terms used in that Act. Without this regulation, the Act would be unable to operate because the definitions of “drug of dependence”, “prohibited substance”, and “small quantity” would be incomplete. The regulation thus completes the Act. Second, it cross‑references the Criminal Code Regulation 2005 extensively. Sections 4 and 5 incorporate the lists of substances from schedule 1, parts 1.1 and 1.2 of that regulation. Any amendment to that schedule - for example, adding a new synthetic cannabinoid to part 1.2 - automatically makes that substance a prohibited substance under this regulation without any further legislative action. This delegation of legislative power to another instrument is efficient but also means that a person must consult two pieces of legislation to know whether a substance is controlled. The regulation does not incorporate the definitions from the Criminal Code Regulation; it merely says a substance mentioned in that regulation is a drug of dependence or prohibited substance. That means the definitions of “controlled medicine” and “prohibited substance” in the Criminal Code Regulation govern the meaning of those terms here. Third, the regulation interacts with the Legislation Act 2001 in minor ways: section 3A was inserted by the Drugs of Dependence (Personal Use) Amendment Act 2022, which also replaced section 6. The notes in the regulation derive their legal status from section 127 of the Legislation Act. The regulation also interacts with the Act’s offence notice provisions in section 171A; the regulation sets the penalty amount but does not define the offences that attract the notice. A person reading the regulation alone would not know whether possession of a small quantity of cannabis is subject to a $100 notice; they would need to check the Act. There is no direct interaction with the Medicines, Poisons and Therapeutic Goods Act 2008 mentioned in the regulation, but in practice a substance that is a drug of dependence under this regulation may also be a scheduled medicine under that Act, leading to overlapping regulatory requirements. Health practitioners must comply with both regimes. The regulation also does not interact with the Poisons Standard (the national SUSMP) because the ACT chooses to define its own prohibited substances by reference to the Criminal Code Regulation, not the national code. That creates a divergence: a substance that is legal in other states may be prohibited in the ACT if it appears in the local Criminal Code Regulation.

The regulation was originally notified on 26 February 2009 and commenced on 27 February 2009. Since then it has been amended twice. The first amendment was the Criminal Code (Controlled Drugs) Legislation Amendment Regulation 2014 (No 1) (SL2014-6), which commenced on 17 April 2014. That amendment changed sections 4 and 5 to reflect updates to the Criminal Code Regulation. The amendment history notes that sections 4 and 5 were amended by SL2014-6 ss 8-11. The actual text of those amendments is not reproduced in this republication, but they likely updated the cross‑references to the Criminal Code Regulation schedule. The second and more significant amendment was made by the Drugs of Dependence (Personal Use) Amendment Act 2022 (A2022-20), part 3. That Act was notified on 28 October 2022, but part 3 had a delayed commencement: it came into effect on 28 October 2023. That is why the republication effective date is 28 October 2023. The 2022 amendment inserted a new section 3A (offence notice penalty) and replaced section 6 in its entirety, including the small‑quantity tables. Before the 2022 amendment, the small quantities were presumably different. The earlier version of section 6 had been omitted by the Legislation Act 2001, section 89(3), and then reinserted by the 2022 amendment. The amendment history also shows that section 2 (commencement) was omitted by section 89(4) of the Legislation Act, which is a standard provision. The regulation has been republished three times: R1 (27 February 2009), R2 (17 April 2014), and R3 (28 October 2023). The current republication includes all amendments to that date. Any uncommenced amendments are not included; the endnotes indicate that uncommenced provisions are underlined. There are no uncommenced amendments shown. The regulation is stable in its current form.

The regulation itself does not mention any litigation, and there are no cases cited within its text. The reporter has not introduced any. Therefore, based solely on the source provided, there is no litigation history associated with this regulation. That does not mean the regulation has never been judicially considered. The small‑quantity thresholds and the DDU definition have likely been tested in ACT courts, but those cases are not part of the regulation as republished. The regulation is a relatively simple instrument, and its provisions are largely definitional, so challenges would likely arise in the context of prosecutions under the Act. For example, a defendant might argue that a substance does not meet the DDU definition, or that a mixture should be measured by its total weight rather than pure drug content, or that the cross‑reference to the Criminal Code Regulation is invalid for some reason. The absence of litigation references in the regulation is notable but not surprising; subordinate legislation often does not cite cases. Legal practitioners should be aware that the ACT Supreme Court and the Magistrates Court have likely interpreted these provisions, but those interpretations are not part of the public record of the regulation itself. Anyone researching this regulation should conduct separate case law searches.

Several traps await the unwary. First, the cross‑reference trap: sections 4 and 5 do not define which substances are controlled; they merely point to the Criminal Code Regulation 2005. A person who reads only this regulation will have no idea what substances are drugs of dependence or prohibited substances. They must look up the Criminal Code Regulation, and then possibly the definition of “related drug” within that regulation, which can extend the list significantly. That imposes a research burden.

Second, the mixture versus pure form trap. For most entries in the tables, the small quantity applies “whether in pure form or a mixture containing the drug”. That means that 50 grams of dried cannabis includes the weight of the plant material, not just the THC. But for LSD and lysergic acid (items 5 and 6), the small quantity is prescribed only for the pure form of the substance. If LSD is on blotter paper, the weight of the paper does not count; only the pure LSD mass counts. That is a crucial distinction that can mean the difference between simple possession and trafficking. A person carrying 10 blotters might have only 0.002 grams of pure LSD, well below the 0.001 grams threshold? Actually 10 blotters at 0.0002 grams each would be 0.002 grams, which is twice the small quantity, so possibly trafficking. But if only pure form is counted, the total mass is 0.002 grams, which is above 0.001 grams, so still above. But if the blotters contain less than 0.0002 grams each, the threshold is lower. The point: precise purity testing is essential.

Third, the DDU alternative threshold trap. For MDMA and LSD, the small quantity is expressed as “5 DDU or 1.5g” (for MDMA) and “5 DDU or 0.001g” (for LSD). The regulation does not state whether the threshold is the lesser or greater of the two, or whether either can be applied depending on the form. The natural reading is that if the substance is in the form of DDUs, the threshold is 5 DDU; if it is in bulk form (powder, liquid), the threshold is the mass. But what if a person has 4 tablets and also 0.5 grams of powder? The regulation is silent on aggregation. A prosecutor might try to aggregate, but the regulation does not provide for that. The DDU definition also caps the drug content per unit; if a tablet contains more than 0.3 grams of MDMA, it does not qualify as a DDU, so the mass threshold would apply to that tablet. That creates inconsistency.

Fourth, the cannabis trap: the regulation distinguishes dried cannabis (50g) from harvested cannabis (150g). Harvested cannabis includes any mixture of dried and non‑dried cannabis. If a person has 30 grams of dried buds and 30 grams of fresh leaves, the total is 60 grams of harvested cannabis (since it’s a mixture). But if they are in separate bags, are they a mixture? The definition says “is a mixture of dried cannabis and cannabis that is not dried cannabis”. If they are stored separately, they might not be a mixture. That ambiguity could be exploited.

Fifth, the offence notice penalty of $100 is not linked to penalty units, so it will remain at $100 unless amended. It may become trivial over time, reducing deterrence. But it also means that a person who receives a notice cannot argue that the penalty is disproportionate in a specific case; it is fixed.

Sixth, the regulation does not include any definition of “possession” or “supply”, so those terms are governed solely by the Act and common law.

Seventh, there is no provision for exclusions or exemptions for medical or research purposes. Those are left to the Act and other regulations.

Compliance with this regulation is essentially compliance with the Drugs of Dependence Act 1989, using the definitions provided here. For an individual who uses or possesses any of the listed substances, the first step is to know whether the substance is a drug of dependence or a prohibited substance under the Criminal Code Regulation. That requires checking parts 1.1 and 1.2 of schedule 1 and the “related drug” definition. For most common drugs (cannabis, MDMA, amphetamines, cocaine, heroin, LSD, psilocybine), the answer is clear from the tables. The key compliance variable is quantity. A person must ensure that they do not possess more than the small quantity for that substance, otherwise the Act may treat the possession as possession for supply, which carries heavier penalties. The small quantity for dried cannabis is 50 grams; for harvested cannabis 150 grams; for MDMA 1.5 grams or 5 tablets (whichever is applicable); for heroin 1 gram; for LSD 0.001 grams pure or 5 units; for amphetamine, cocaine, and methylamphetamine 1.5 grams each; for psilocybine 1.5 grams. These thresholds apply regardless of the number of people sharing the substance; joint possession can lead to each person being charged with possession of the whole amount.

For a person who receives an offence notice under section 171A of the Act, the prescribed penalty is $100. Paying the notice within the required time avoids court and a criminal conviction. However, a person should not assume that any quantity below the small quantity will automatically be dealt with by a penalty notice; the Act determines eligibility. If a person wishes to dispute the notice, they cannot simply pay; they must elect to go to court. There is no duty to pay a notice that is incorrect, but if the notice is not paid or challenged, enforcement action may follow.

For health professionals, the regulation imposes an obligation to know which substances are drugs of dependence, because the Act imposes specific storage, prescribing, and record‑keeping requirements for those substances. Since the regulation incorporates the Criminal Code Regulation list, a practitioner must monitor amendments to that instrument. For example, when a new opioid is added to part 1.1, it immediately becomes a drug of dependence under this regulation.

For legal professionals, compliance means being able to advise clients on the quantity thresholds and the form in which the substance was found. The DDU definition may require expert evidence as to whether a substance was “prepared to be administered as a single dose”. The mixture versus pure form distinction for LSD and lysergic acid requires lab testing. The regulation does not provide a method for measuring DDU content; that is a scientific question.

The simplest compliance strategy for individuals is to avoid possession of any quantity that might approach the thresholds. For those who choose to possess small amounts, keeping accurate records or receipts may help if a quantity is contested, but that is not a defence. The regulation offers no safe harbours. Compliance ultimately depends on the enforcement decisions of police and the Act’s penalty provisions, which are beyond the scope of this regulation.