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New South Wales
Drug Misuse and Trafficking
Amendment Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Drug Misuse and Trafficking Act 1985 No 226 2
4 Amendment of other legislation 2
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 3
Schedule 2 Amendment of other legislation 11
b05-034-42.p03
New South Wales
Drug Misuse and Trafficking
Amendment Bill 2005
No , 2005
A Bill for
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.
Clause 1 Drug Misuse and Trafficking Amendment Bill 2005
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Drug Misuse and Trafficking Amendment Act 2005. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Amendment of Drug Misuse and Trafficking Act 1985 No 226 6
The Drug Misuse and Trafficking Act 1985 is amended as set out in 7
Schedule 1. 8
4 Amendment of other legislation 9
The Young Offenders Act 1997 and the Young Offenders Regulation 10
2004 are amended as set out in Schedule 2. 11
Page 2
Drug Misuse and Trafficking Amendment Bill 2005
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
Schedule 1 Amendment of Drug Misuse and 1
Trafficking Act 1985 2
(Section 3) 3
[1] Sections 10 (2) (b), 23 (4) (b), 24 (4) (b), 24A (2) (b), 25 (4) (b), 25A (9) (b) 4
and 39J 5
Insert "or a clinical trial" after "study" wherever occurring. 6
[2] Section 11A Sale, supply and display of waterpipes and ice pipes 7
Insert in alphabetical order in section 11A (1): 8
ice pipe means: 9
(a) a device capable of being used for the administration of a 10
prohibited drug by means of the smoking or inhaling of the 11
smoke or fumes resulting from the heating or burning of 12
the drug in a crystal or powder form, or 13
(b) a device that is apparently intended to be such a device but 14
that is not capable of being so used because it needs an 15
adjustment, modification or addition, 16
and includes a device known as an ice pipe or a crack pipe, but 17
does not include a device of a class or description prescribed by 18
the regulations as not being an ice pipe for the purposes of this 19
section. 20
[3] Section 11A (2) (a) and (b) and (3) 21
Insert "or an ice pipe" after "waterpipe" wherever occurring. 22
[4] Section 11A (4) 23
Insert "or ice pipe" after "waterpipe". 24
[5] Section 22 Indictable prosecution 25
Omit section 22 (1). Insert instead: 26
(1) Subject to the provisions of this Division and the Criminal 27
Procedure Act 1986, an offence under this Division is to be 28
prosecuted on indictment. 29
[6] Section 24 Manufacture and production of prohibited drugs 30
Insert after section 24 (1): 31
(1A) A person who: 32
(a) manufactures or produces, or who knowingly takes part in 33
the manufacture or production of, a prohibited drug, and 34
Page 3
Drug Misuse and Trafficking Amendment Bill 2005
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
(b) exposes a child to that manufacturing or production 1
process, or to substances being stored for use in that 2
manufacturing or production process, 3
is guilty of an offence. 4
[7] Section 24 (2A) 5
Insert after section 24 (2): 6
(2A) A person who: 7
(a) manufactures or produces, or who knowingly takes part in 8
the manufacture or production of, an amount of a 9
prohibited drug which is not less than the commercial 10
quantity applicable to the prohibited drug, and 11
(b) exposes a child to that manufacturing or production 12
process, or to substances being stored for use in that 13
manufacturing or production process, 14
is guilty of an offence. 15
[8] Section 24 (3)(3B) 16
Omit section 24 (3). Insert instead: 17
(3) If, on the trial of a person for an offence under subsection (2) or 18
(2A), the jury are not satisfied that the amount of prohibited drug 19
involved is equal to or more than the commercial quantity 20
applicable to the prohibited drug, the jury may acquit the person 21
of the offence charged and find the person guilty of an offence 22
under subsection (1) or (1A), respectively, and the person is 23
liable to punishment accordingly. 24
(3A) It is a defence to a prosecution for an offence under subsection 25
(1A) or (2A) if the defendant establishes that the exposure of the 26
child to the prohibited drug manufacturing or production process, 27
or to substances being stored for use in that manufacturing or 28
production process, did not endanger the health or safety of the 29
child. 30
(3B) If, on the trial of a person for an offence under subsection (1A) or 31
(2A), the jury: 32
(a) is not satisfied that a child was exposed to a prohibited 33
drug manufacturing or production process, or to 34
substances being stored for use in such a manufacturing or 35
production process, or 36
(b) is satisfied that the defence referred to in subsection (3A) 37
has been made out, 38
Page 4
Drug Misuse and Trafficking Amendment Bill 2005
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
the jury may acquit the person of the offence charged and find the 1
person guilty of an offence under subsection (1) or (2), 2
respectively, and the person is liable to punishment accordingly. 3
[9] Section 24 (5) 4
Insert after section 24 (4): 5
(5) In this section, child means a person who is under the age of 16 6
years. 7
[10] Section 24A Possession of precursors for manufacture or production of 8
prohibited drugs 9
Omit "cash sale" from section 24A (2A). Insert instead "sale and storage". 10
[11] Section 25 Supply of prohibited drugs 11
Insert after section 25 (2B): 12
(2C) A person of or above the age of 18 years who procures a person 13
under the age of 16 years to supply, or take part in the supply of, 14
a prohibited drug (other than cannabis leaf) to another person is 15
guilty of an offence. 16
(2D) A person of or above the age of 18 years who procures a person 17
under the age of 16 years to supply, or take part in the supply of, 18
an amount of a prohibited drug (other than cannabis leaf) which 19
is not less than the commercial quantity applicable to the 20
prohibited drug is guilty of an offence. 21
(2E) It is a defence to a prosecution for an offence under subsection 22
(2C) or (2D) if the defendant establishes that the defendant had, 23
at the time the offence is alleged to have been committed, 24
reasonable cause to believe, and did in fact believe, that the 25
person who was procured to supply, or take part in the supply of, 26
the prohibited drug was of or above the age of 16 years. 27
[12] Section 25 (3) 28
Insert "or (2D)" after "subsection (2)". 29
[13] Section 25 (3) 30
Insert "or (2C), respectively" after "subsection (1)". 31
[14] Sections 30 (1) (b) and (e) and 31 (1) (b) and (e) 32
Insert "or (1A)" after "24 (1)" wherever occurring. 33
Page 5
Drug Misuse and Trafficking Amendment Bill 2005
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
[15] Sections 30 (1) (c) and (e) and 31 (1) (c) and (e) 1
Omit "25 (1) or (1A)" wherever occurring. 2
Insert instead "25 (1), (1A) or (2C)". 3
[16] Section 33AC 4
Insert after section 33AB: 5
33AC Penalties for offences involving manufacture or production in 6
presence of children or procuring children to supply prohibited 7
drugs 8
(1) This section applies to the following offences: 9
(a) an offence under section 24 (1A) or (2A) or 25 (2C) or 10
(2D), 11
(b) an offence under section 26 of conspiring to commit an 12
offence referred to in paragraph (a), 13
(c) an offence under section 27 of aiding, abetting, 14
counselling, procuring, soliciting or inciting the 15
commission of an offence referred to in paragraph (a), 16
(d) an offence under section 28 of conspiring to commit, or of 17
aiding, abetting, counselling, procuring, soliciting or 18
inciting the commission of, an offence under a law in force 19
outside New South Wales which corresponds to section 24 20
(1A) or (2A) or 25 (2C) or (2D). 21
(2) The penalty for an offence under section 24 (1A) or 25 (2C), or 22
an offence referred to in subsection (1) (b)(d) that relates to an 23
offence under section 24 (1A) or 25 (2C), is a fine of 2,400 24
penalty units or imprisonment for 18 years, or both. 25
(3) The penalty for an offence under section 24 (2A) or 25 (2D), or 26
an offence referred to in subsection (1) (b)(d) that relates to an 27
offence under section 24 (2A) or 25 (2D), is a fine of 4,200 28
penalty units or imprisonment for 25 years, or both. 29
(4) Despite subsection (3), if the court is satisfied that an offence 30
referred to in that subsection involved not less than the large 31
commercial quantity of the prohibited drug concerned, the 32
penalty for the offence is a fine of 6,000 penalty units or 33
imprisonment for life, or both. 34
(5) In this section: 35
large commercial quantity, in relation to a prohibited drug, 36
means the number or amount, if any, specified opposite the drug 37
in Column 5 of Schedule 1. 38
Page 6
Drug Misuse and Trafficking Amendment Bill 2005
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
[17] Section 35A 1
Insert after section 35: 2
35A Defence in relation to certain substances used in industry 3
(1) Despite any other provision in this Act, it is not an offence against 4
this Act for: 5
(a) a person to manufacture, produce, possess or supply an 6
industrial product for the purpose of the manufacture or 7
distribution of an industrial product or final stage industrial 8
product, or 9
(b) a person to manufacture, produce, possess or supply a final 10
stage industrial product, or 11
(c) a person to possess or supply a Schedule 2 substance for 12
the purpose of its disposal as waste or its destruction. 13
(2) In this section: 14
distribution means any process or operation necessary for 15
distributing a substance or product to a manufacturer or other 16
distributor. 17
final stage industrial product means: 18
(a) an article or substance that does not contain any Schedule 19
2 substance or any other prohibited drug, or 20
(b) an industrial product: 21
(i) from which a Schedule 2 substance cannot be 22
readily extracted or readily synthesized, or 23
(ii) contains less than the concentration of Schedule 2 24
substance prescribed by the regulations, 25
and that does not contain any other prohibited drug. 26
industrial product means an article or substance: 27
(a) that is not for human consumption, and 28
(b) that is or contains a Schedule 2 substance. 29
manufacture means any process or operation necessary for 30
manufacturing a substance or product. 31
Schedule 2 substance means any substance listed in Schedule 2. 32
(3) In this section, a reference to the manufacture, production, 33
possession or supply of a substance or product includes taking 34
part in the manufacture, production, possession or supply of the 35
substance or product. 36
Page 7
Drug Misuse and Trafficking Amendment Bill 2005
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
[18] Section 39A 1
Omit the section. Insert instead: 2
39A Meaning of "minimum amount" 3
In this Division, minimum amount, in relation to a prohibited 4
drug, means the traffickable quantity of the prohibited drug. 5
[19] Part 3A, Division 2B 6
Insert after Division 2A of Part 3A: 7
Division 2B Order for disposal of substances when no 8
likely prosecution 9
39PB Order for disposal of substances by certain senior police officers 10
when no likely prosecution 11
(1) A police officer of or above the rank of Superintendent may order 12
that a prohibited drug, or a substance that the officer reasonably 13
suspects is a prohibited drug, seized by a member of NSW Police 14
be destroyed if: 15
(a) the amount of the prohibited drug (or of the prohibited 16
drug that the officer reasonably suspects the substance to 17
be) is less than the traffickable quantity of the drug, and 18
(b) no person has been charged with an offence with respect to 19
the prohibited drug or substance and the officer is of the 20
opinion that no person is likely to be charged. 21
(2) Before any prohibited drug or substance is destroyed in 22
accordance with such an order: 23
(a) evidence of the substance or article is to be recorded, 24
whether by photographing or otherwise, and 25
(b) if the police officer concerned determines that it is 26
appropriate, two samples of the drug or substance are to be 27
taken and retained, each of a sufficient quantity to allow its 28
analysis. 29
(3) Subject to subsection (2), any prohibited drug or substance 30
(whether seized before or after the commencement of this 31
section) may be destroyed in accordance with an order under this 32
section. 33
Page 8
Drug Misuse and Trafficking Amendment Bill 2005
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
[20] Section 39RA Use of prohibited plants and prohibited drugs in controlled 1
operations and integrity testing programs 2
Omit section 39RA (5). Insert instead: 3
(5) Despite any other Act or law to the contrary, the functions of the 4
Commissioner of Police under this section may not be delegated 5
except to: 6
(a) a Deputy Commissioner of Police, or 7
(b) a person holding a NSW Police Senior Executive Service 8
position to whom the function under section 6 (1) of the 9
Law Enforcement (Controlled Operations) Act 1997 of 10
authorising the conduct of a controlled operation has been 11
delegated in accordance with that Act. 12
[21] Section 40A Proof of certain matters 13
Omit "24 (4) or 25 (4)" from section 40A (2). 14
Insert instead "24 (4), 25 (4) or 35A". 15
[22] Section 43 Certificate evidence 16
Insert at the end of paragraph (b) of the definition of analyst in section 43 (6): 17
, and 18
(c) a person who: 19
(i) is an analyst (however described) under a law of 20
another State or Territory that corresponds to this 21
Act, and 22
(ii) is, or belongs to a class, prescribed by the 23
regulations for the purposes of this definition. 24
[23] Section 44A 25
Insert after section 44: 26
44A Amendment of Schedule 2 27
The Governor may, from time to time, by regulation amend 28
Schedule 2: 29
(a) by adding the name or description of or relating to a 30
substance, or 31
(b) by amending a name or description of or relating to a 32
substance for the purpose of more accurately describing 33
the substance. 34
Page 9
Drug Misuse and Trafficking Amendment Bill 2005
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
[24] Section 45 Regulations 1
Omit section 45 (3). Insert instead: 2
(3) A regulation may create an offence punishable by a penalty, 3
including a distinct penalty in the case of a second or subsequent 4
offence, not exceeding: 5
(a) 150 penalty units in the case of a corporation, or 6
(b) 50 penalty units in the case of an individual. 7
[25] Schedule 1 8
Insert in appropriate order: 9
1,4-Butanediol 30.0g 10.0g 50.0g 1.0kg 4.0kg --
Gamma butyrolactone 30.0g 10.0g 50.0g 1.0kg 4.0kg --
Methadone in oral liquid form 600ml 200ml 1L 100L 400L --
[26] Schedule 1 10
Omit ", except 4-Hydroxy-butanoic acid lactone (also known as gamma 11
butyrolactone as referred to in Schedule 2 to the Drug Misuse and Trafficking 12
Regulation 2000)" from the matter relating to 4-Hydroxybutanoic acid. 13
[27] Schedule 1 14
Insert "except in oral liquid form" after "Methadone" in the matter relating to 15
Methadone. 16
[28] Schedule 2 17
Insert after Schedule 1: 18
Schedule 2 Legitimate purpose defence 19
substances 20
(Sections 35A and 44A) 21
1,4-Butanediol (also known as hydroxybutanol or 1,4 BD) 22
Gamma butyrolactone (also known as 4-hydroxybutanoic acid lactone or 23
GBL) 24
Page 10
Drug Misuse and Trafficking Amendment Bill 2005
Amendment of other legislation Schedule 2
Schedule 2 Amendment of other legislation 1
(Section 4) 2
2.1 Young Offenders Act 1997 No 54 3
[1] Section 8 Offences covered by Act 4
Omit section 8 (2) (e1). Insert instead: 5
(e1) the offence is an offence under Division 1 of Part 2 of the 6
Drug Misuse and Trafficking Act 1985 other than an 7
offence to which subsection (2A) applies, or 8
[2] Section 8 (2A) 9
Insert after section 8 (2): 10
(2A) An offence under Division 1 of Part 2 of the Drug Misuse and 11
Trafficking Act 1985 is covered by this Act if in the opinion of the 12
investigating official or prosecuting authority: 13
(a) in relation to an offence relating to a prohibited drug other 14
than cannabis leaf within the meaning of the Drug Misuse 15
and Trafficking Act 1985--the offence involves not more 16
than the small quantity applicable to that drug under that 17
Act, or 18
(b) in relation to an offence relating to cannabis leaf: 19
(i) the offence involves not more than half the small 20
quantity of cannabis leaf within the meaning of the 21
Drug Misuse and Trafficking Act 1985, or 22
(ii) there are exceptional circumstances in that: 23
(A) the offence involves more than half, but not 24
more than the total, small quantity of 25
cannabis leaf within the meaning of that Act, 26
and 27
(B) it would be in the interests of rehabilitation, 28
and appropriate in all the circumstances, to 29
deal with the matter under this Act. 30
Page 11
Drug Misuse and Trafficking Amendment Bill 2005
Schedule 2 Amendment of other legislation
2.2 Young Offenders Regulation 2004 1
Clause 16 Offence for which caution may not be given 2
Omit the clause. 3
Page 12
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