Drugs and the law - Hot Topics 59 - Find Legal Answers

in the United States by the 1938 Marijuana Tax Act(although it had already by then been banned in 26States). Again, the Marijuana Tax Act was also strictlyspeaking a tax law, which imposed criminal penalties topunish use, possession, supply or cultivation.The United States has continued to wage a ‘War onDrugs’, both domestically and by taking a lead roleinternationally. It is the major funder and supporter ofthe International Narcotics Control Board, a UN bodywhich monitors compliance with international drugtreaties. There are several of these treaties – includingthe 1961 Single Convention on Narcotic Drugs – whichrequire signatory states to pass laws to prohibit the use,possession, sale and production of drugs. Australiais a signatory to all the international conventions onpsychoactive drugs.Ironically, as the historian Alfred McCoy has shown,while the United States has been the most vocal promoterof international drug prohibition, actions of the UnitedStates military have given the international drug tradeits biggest boosts. First, in the Second World War,American military intelligence made arrangements withSicilian mafia figures such as Lucky Luciano to supportthe Allied invasion of Italy. The arrangement allowed themafia to gain control of – and expand – the internationalheroin trade, including into the United States. Later, inVietnam, the CIA sought alliances with the hill tribes ofthe Golden Triangle against the communist Viet Minh.In exchange for their political support, the CIA providedsubstantial transport and other logistical support for thehill tribes to sell opium and heroin. And United Statessoldiers in Vietnam became the major customers for theheroin, in many cases taking their heroin dependenceback home with them.The Vietnam War contributed to the significant increasein drug consumption in Australia in the late 1960s,with American soldiers on ‘rest and recreation’ leave inAustralia creating a market for heroin, marijuana andother illicit drugs, and providing a glamorous examplefor the locals.In 1976, the Netherlands adopted a policy of selectiveenforcement of its cannabis laws. The prosecutors andpolice are instructed to not prosecute minor offenders,and to tolerate a retail supply of cannabis through cafes.The laws prohibiting the possession and use (and supplyand cultivation) of cannabis are not actually repealed,but they are not enforced – selectively – by governmentpolicy.Several European countries have since relaxed their laws(or law enforcement) about possession offences, sometimesjust for cannabis. But other European countries continuewith a predominantly prohibitionist legal system. Swedenclaims to have achieved relatively low levels of drug usewith a firm prohibitionist approach, which includescompulsory treatment of drug users, and considerablepublic resourcing of drug rehabilitation and educationprograms, after an earlier period of liberalisation.The United Nations 2006 World Drug Report 1 indicatesthat 200 million people (5% of the world’s adultpopulation) used an illicit drug in the last twelvemonths.HarM reducTiOnHarm reduction focuses on minimising the negativeimpacts associated with drug use, individually andsocially. While not advocating drug use, supporters ofharm reduction argue that we should accept that somedrug use will occur, and focus on addressing the harmscaused.This alternative approach to prohibition gained support inthe 1980s, especially in Europe and Australia, and foundexpression in a number of public health programs.In response to the arrival of the HIV/AIDS pandemicin the mid 1980s, needle exchange programs wereintroduced in Australia and in several European countrieswith the aim of preventing infectious contact betweenintravenous drug users. Needle exchange remains acriminal offence in the United States.Safe injecting rooms were introduced in Europe. In 1994Switzerland began a program of heroin prescription toheroin dependent people who had consistently failedearlier attempts at rehabilitation. The thinking is thatproviding heroin to participants gives them a chance toachieve greater stability in their lives, not least becausethey do not have to devote substantial time and energyto obtaining and paying for heroin. Heroin prescriptionnow operates in several European cities and Vancouver.drugs in ausTraliaThe first Australian drug law was an 1857 Act imposingan import duty on opium. In the following years,a number of other laws were passed imposing oftenprohibitive tariffs on opium. The primary purpose of thelaws was clearly to discourage the entry of Chinese peopleto Australia, rather than to restrict the importation ofopium itself.Australians in the nineteenth century were among theworld’s biggest consumers of opiates, thanks to the verywide popularity of patent medicines, most of whichcontained a high proportion of alcohol or morphine orboth. Laudanum, a mixture of opium and alcohol, wastaken regularly by upper class matrons and administeredto children to calm them.1. Available at www.unodc.org/unodc/en/world_drug_report.html2HOT TOPICS 59 > Drugs and the law

The first laws restricting opium were carefully worded toapply to opium in smokable form only – not opium as itwas taken by the European population.Cannabis plants were sent to Australia by Sir JosephBanks on the First Fleet, in the hope that the new colonymight grow enough hemp to supply the British Navywith rope. Cannabis was not consumed on a large scale(although it was readily available for sale as cigarettescalled ‘Cigares de Joy’ until the 1920s). Cannabisimportation and use was prohibited by federal legislationin 1926 (implementing the 1925 Geneva Conventionon Opium and Other Drugs), with the States adoptingsimilar prohibition in the following years.Heroin was legally available on prescription in Australiauntil 1953. It was so widely used as a painkiller and incough mixtures that Australia was the world’s largestper capita user of heroin. The 1953 prohibition of heroinwas the result of international pressure on Australia toconform to the prohibition of heroin adopted by othercountries, with some opposition from the AMA.Ironically, heroin, cannabis, and other drugs wereprohibited in Australia well before their use became amajor social issue.Before the 1960s, drug use was not completely unknown,but dependent drug use was typically the result of theuse of opiates after first using them for medical reasons.There were drug dependent doctors (and their wives),and a small bohemian subculture that used drugs. ManyAustralian arrests for drug offences involved visiting jazzmusicians.Among the significant social changes of the 1960s wasthe emergence of the concept of ‘recreational’ drug use– the consumption of cannabis, heroin, LSD and otherpsychoactive drugs for pleasure, or in pursuit of spiritualenlightenment. For the first time, drug use becamewidespread – if not quite mainstream – rather than anactivity pursued by a few painters or poets. The officialresponse was increased law enforcement, and legislativechange to extend the range of offences and increasedpenalties for drug offences.The ‘old’ Australian drug laws were mostly under thevarious state Poisons Acts, reflecting an underlyingapproach of regulation and control of medicinalsubstances, with potentially addictive drugs legallyavailable only on a doctor’s prescription. The ‘new’ druglaws introduced a distinction between use and possessionoffences, and supply offences. Penalties for possessionand use increased, but very substantial penalties wereintroduced for drug supply, and especially supply of largequantities (‘drug trafficking’). By 1970, all the states hadenacted laws that made drug supply a separate offence todrug use or possession offences.In 1985, the federal and state governments adopted aNational Drug Strategy which included a pragmaticmixture of prohibition and a stated objective of harmreduction. Harm reduction has been an official partof Australian drugs policy ever since, although mostresources by far are devoted to policing and border patrolattempts at interdiction (‘supply reduction’). Fewerresources are made available for health treatment anddrug rehabilitation programs, or for preventative publichealth programs such as needle exchange.The needle exchange program has been successful.Australia maintains an extremely low rate of HIVinfection among injecting drug users, compared toinfection rates of 60% or more among injecting drugusers in some US cities, where needle exchange remainsillegal. The success of the needle exchange programsencouraged governments to at least consider adoptingother harm minimisation initiatives.image u navailableJason South, The Age (Melbourne).history of drug laws 3

The merits of a trial of a heroin prescription program,based on the Swiss model, were debated in the 1990s.The ACT government took steps to begin a trialprogram, but the Federal Government refused to allowthe importation of heroin. Unable to source legitimateand controlled quality heroin, the ACT governmentabandoned the proposed trial.Australia has been tentative about allowing legal injectingrooms, with NSW the only state to permit an injectingroom, and then only one, on a trial basis.In all states, the impact of prohibitionist laws on drugusers is somewhat modified by a number of diversionprograms, diverting some eligible users from the criminaljustice system to cautions or treatment.THe drug pOlicy debaTePublic debate over drug policy and calls for ‘drug lawreform’ began in the late 1960s and has continued since.The opposition to prohibition was at first largely anargument on libertarian grounds: that people shouldhave the right to consume drugs if they hurt nobodydoing so, positing drug offences as victimless crimes.Those arguments are still made.However, most arguments for reform today come fromthe harm reduction perspective. It is suggested that thelegal prohibition of drugs creates crime, and makesdrug-taking more physically dangerous. Prohibitionalso requires significant public expenditure withoutpreventing significant levels of problematic drug use inthe community.The primary argument against relaxation of the criminallaw treatment of drugs is that it would cause drug use toincrease, and consequently lead to an increase in drugdependence. The social cost of drug use would likely riseif drugs became more freely available and more freelyconsumed. Although prohibition cannot completelyprevent drug use, the risk of being caught by the policehas a directly discouraging effect on drug users andwould-be drug users. Prohibition forces drug priceshigher, indirectly discouraging drug use.It is also argued that having laws which make drug use(and supply) illegal has a symbolic effect, ‘sending amessage’ that drug use is socially undesirable.image u navailableAn ‘ice pipe’ used for smoking crystal methamphetamine. Taken 30 July 2003.Shannon Morris, The Age (Melbourne).4HOT TOPICS 59 > Drugs and the law

The counter argument is that making some drugs illegaland yet allowing demonstrably harmful drugs liketobacco and alcohol to be freely available to adults ishypocritical and undermines respect for the law and othersocial institutions. Forcing up the price of drugs doesnot prevent people using drugs, but it might encouragepeople to commit property crimes, or to engage in drugsupply offences, to obtain the necessary funds.The enforcement of laws criminalising drug use cancontribute to risk taking behaviours – for example,injecting drugs alone, or consuming party drugs all atonce to avoid sniffer dog detection.There is a good deal of evidence to suggest that there is alink between illicit drug use and property crime, but theevidence is less strong in proving that drug use actuallycauses property crime. It may be that people who commitproperty crime are more likely to be drug users, so thatdrug use is not a cause. But it is clear that at least somedrug-dependent people commit very large numbers ofproperty crimes.Similarly, there is a good deal of evidence to suggesta connection between cannabis use by teenagers andpsychosis, but the evidence is less strong that cannabisactually causes psychosis. Most studies cannot rule outother drug use (especially amphetamines) as a potentialcause of mental health problems, and it may be thatpeople with mental health problems are more likelythan others to use cannabis (so that the cannabis useis a feature, but not a cause). It is interesting that thenational prevalence of psychosis in young people has notincreased over the last twenty years, despite significantincrease in cannabis use by young people.The drugs policy debate is one in which most argumentscan be supported by evidence from a study somewhereor an experience in one country or another. It can beargued that prohibition causes drug crime and preventsdrug crime; that it discourages drug use or that itencourages harmful drug use; it complements efforts atdrug rehabilitation or it draws valuable resources awayfrom treatment programs.The debate about the relative merits of these broadpolicy positions is not likely to end soon. However, it islikely that we will continue to see a variety of new lawsand measures introduced – at times prohibitionist andat times harm reductionist – in an ongoing attempt toaddress the social consequences of drug use.discriMinaTiOn againsTdrug usersThe social stigma attached to illicit drug use meansthat people who are identified as drug users canexperience discriminatory treatment such as denial ofservices or accommodation.is drug addiction a disability?Under both NSW and federal anti-discriminationlaws, it is unlawful to discriminate against a person onthe grounds of disability. Over a number of years, ithad been frequently suggested that drug dependencewas a form of disability, and therefore covered by thediscrimination laws, but there was no case decidingthe point.Drug addiction and federal lawIn Marsden v HREOC and Coffs Harbour RSL [2000]FCA 1619, a man was refused alcohol service at a club,and later expelled from club membership, because hewas on a methadone program. He made a complaintof disability discrimination to the Human Rights andEqual Opportunity Commission (HREOC). Thecommission conducted an inquiry and concludedthere had been no disability discrimination. Marsdenappealed to the Federal Court, which decided thatdrug addiction could be classed as a disability forthe purposes of the relevant federal legislation (theDisability Discrimination Act 1992).amendments to nsW lawIn response to the Marsden decision, the NSW Government amended the NSW law (the Anti-Discrimination Act 1977) to legally allow discrimination against a person on the grounds of addiction to a prohibited drug – but only in employment. Discrimination remains unlawful in other fields, including:> providing goods and services> education> accommodation.The NSW Act does not allow discrimination: > against users of methadone or buprenorphine> on the grounds of being hepatitis C or HIV positive, or having any other medical condition.So, if a person is refused a job because they areon a methadone or buprenorphine program or areseropositive, they could make a claim for disabilitydiscrimination under the NSW Act.history of drug laws 5

Drug laws inNSW WHaT are illegal drugs?In NSW, it is an offence to possess, use, produce orsupply a drug which has been declared prohibited. Mostdrug charges in NSW are laid under the Drug Misuse andTrafficking Act 1985. The Commonwealth Customs Act1901 covers offences involving importing and exportingdrugs.THe drug Misuse and TraffickingacT 1985The NSW Drug Misuse and Trafficking Act 1985classifies a wide range of drugs as ‘prohibited drugs’ (and‘prohibited plants’ in the case of cannabis, opium andcoca). The Act creates offences for:> use of prohibited drugs> possession of prohibited drugs> supply and trafficking of prohibited drugs (with theseriousness of the offence depending on the quantitiesinvolved)> cultivation and possession of prohibited plants> manufacture of prohibited drugs> aiding and abetting and taking part in offencesinvolving prohibited drugs or plants> possession of drug-use implements.Specific offences are covered in more detail from pp 8­16.The drugs covered by the Act are listed in a schedule.They include the common street drugs – cannabis(marijuana), heroin, ecstasy, amphetamines, LSD,cocaine, methadone – and many others.THe cusTOMs acTThe Customs Act 1901 is a federal law that aims, amongother things, to prevent the import and export ofprohibited drugs. The range of drugs (listed in a scheduleto the Act) is similar to that in the Drug Misuse andTrafficking Act.Customs Act offences include dealing with importeddrugs after they have been brought into the country.cOnfiscaTing prOceeds Of criMeThere is both NSW and federal legislation that canbe used to seize assets obtained through serious drugoffences, and other offences. Some of these laws applyonly after a person is convicted of an offence. Some applywithout a conviction, or even without a criminal chargebeing laid.These confiscation laws do not apply to minor drugoffences, such as use and possession, or small-scaledealing.The Acts that come into operation after conviction are:> the Confiscation of Proceeds of Crime Act 1989 (NSW)> the Proceeds of Crime Act 1987 (Cth).The Acts that apply regardless of criminal conviction are: > the Criminal Assets Recovery Act 1990 (NSW)> the Customs Act 1901 (Cth), sections 229A and 243B. how cases proceedCases run under these laws are civil, not criminalactions. This means that a person does not get a criminalrecord if the court orders forfeiture of their property,or the payment of a monetary penalty. It also meansthat the court must only be satisfied on the balance ofprobabilities (not beyond reasonable doubt) that theproperty in question is tainted. NSW cases are conductedin the Supreme Court, with proceedings brought by theNSW Drug Crime Commission. Federal cases are run inthe Federal Court.inTernaTiOnal TreaTies andcOnvenTiOnsAustralia is a signatory to a number of internationaltreaties and conventions about drugs and drug policy.These treaties are all prohibitionist in their basic intent.Countries that sign these treaties must agree to pass lawsagainst using and trading of recreational drugs.International treaties and conventions are not law inAustralia. The only law in NSW is legislation passedby state or federal parliament and precedent decisions6HOT TOPICS 59 > Drugs and the law

made by the courts. The legal status of the treaties isto guide the federal government. In some cases, treatiesgive the federal government constitutional power topass laws it might not otherwise have had. New SouthWales and other Australian states are not signatoriesto international treaties so they are not strictly legallybound by their terms, although there is a tradition thatstates and provinces should act consistently with treatiesentered by their national governments.The main international treaties about drugs that Australiahas signed are:> the Single Convention on Narcotic Drugs 1961> the Convention on Psychotropic Substances 1971> the United Nations Convention Against Illicit Trafficin Narcotic Drugs and Psychotropic Substances 1988These treaties require the nations that sign them to passlaws imposing criminal penalties on drug use, possessionand supply. However, the treaties also allow for flexibility.For example, they allow signatory countries to permit theuse of prohibited drugs for medical purposes.Importantly, the treaties also provide an option to divertdrug offenders to rehabilitation and treatment programs,instead of imposing criminal punishments.finding acTs and casesnsW legislationwww.legislation.nsw.gov.auSelect the Browse A-Z in force option to find NSW Acts andregulations.commonwealth legislationwww.austlii.edu.auFor current legislation click on Commonwealth on the lefthand side of the home page and then choose CommonwealthConsolidated Acts to find Acts, or CommonwealthConsolidated Regulations to find Regulations.international conventionsGo to http://www.austlii.edu.au/au/other/dfat/ to search theAustralian Treaties Library for treaties to which Australia isa party.cases from courts and tribunalswww.austlii.edu.auEither type the case name into the search box, or selectthe jurisdiction from the left hand side of the home page,eg Commonwealth or NSW, and then select the court ortribunal where the case was heard. Links to legislationfrom other Australian jurisdictions can be found atwww.liac.sl.nsw.gov.au/legislation/index.cfmNot all cases are available on AustLII – if you needhelp locating any of the cases mentioned in Hot Topics,legislation or further legal information contact LIAC(02) 9273 1558 or liac@sl.nsw.gov.auimage u navailableA joint federal, NSW police and Customs investigation spanning Australia, the US and Europe, intercepted 340kg of thekey ecstasy component MDMA, concealed in packets of frozen Chinese wontons aboard a container ship. The drugs –-enough to make 1.36 million tablets of ecstasy and worth $68 million on the streets – had come from The Netherlandsvia the US before landing at Sydney's Port Botany. 21 June 2004.Steven Siewert, Sydney Morning Herald.Drug laws in nsW 7

the case of the household drugsA man lived with his girlfriend, his mother, hisbrother and another couple in a three bedroom house.The police found marijuana inside the lounge in theliving area, a room to which all the occupants hadregular access. The man’s conviction was overturnedon appeal. The Court of Criminal Appeal said thatit was necessary to prove that he had the drugs in hisexclusive physical control, and that this was difficultbecause of the large number of people having equallyfree access to the room in which they were found(Filippetti v R (1984) 13 A Crim R 335).The prosecution must rule out all other reasonableexplanations. If there is the possibility of several peoplehaving access to the drugs, there is room for reasonabledoubt about whether the drugs are possessed by theaccused. They could be possessed by someone else.charges against several personsIf a number of people are charged with possession in thissituation, the prosecution must prove in each case thatthe person charged had possession of the drugs.This can be difficult. Courts are not allowed to presumethat all the people must have shared possession – eachindividual accused is presumed innocent. Withoutadmissions (‘Yeah, I knew the dope was in thecupboard…’), it may be difficult to prove that any one ofthe accused is guilty of possession.So for most convictions they must rely on admissionsmade by the accused.intoxication as a defence to criminal chargesSelf-induced intoxication with illegal drugs does notprovide defence to criminal charges.Drink spikingThe offence of administering a prohibited drug includesdrink spiking, where a prohibited drug is added tosomeone’s alcoholic drink, and the person is not awareand does not consent to the administration of the drug.MethadoneIt is an offence to inject methadone. Methadone is legallyprescribed subject to conditions on quantity and the‘purpose’ of the prescription, which must be accordingto ‘recognised therapeutic standards’ (NSW Poisons andTherapeutic Goods Regulation 2002, reg 79).Medicinal cannabisIt is not a defence to a charge of possession of cannabis(or self-administration or cultivation of cannabis) thatthe person used the cannabis for a legitimate medicalreason. However, such motivation can be a relevant issueto be taken into account in sentencing.The NSW government has announced that it willintroduce legislation to allow the use of medicinalcannabis in at least some circumstances. This follows areport from an expert working party (in August 2000) 2which recommended that possession and use of smallquantities of cannabis, and the cultivation of a smallnumber of cannabis plants, should be made lawful tosufferers of certain conditions and illnesses, and forcarers of people with those conditions or illnesses.image u navailableuseUsing an illegal drug (also known as ‘self-administration’)is an offence under section 12 of the Drug Misuse andTrafficking Act. The police must prove that the substanceconsumed was a prohibited drug. Obviously they cannotanalyse the substance if it has been completely consumed,and blood tests can only be taken by a doctor after arrest.Cannabis (Cannabis sativa), young leaves.2. Report available at www.druginfo.nsw.gov.au/medicinal_use_of_cannabis/medicinal_cannabis_nswpossession, use and supply 9

The ‘purpose’ specified in methadone prescriptions isoral dose. Administration by any other method meansthe methadone is not lawfully prescribed under section12(2) of the DMTA and is illegal.prescription drugsIt is legal to possess and use some drugs, like methadoneand the benzodiazepines (such as Serapax and Valium), ifthey have been prescribed by a doctor. It is only an offenceto possess or use these drugs without a prescription.administering drugs to othersIt is also an offence to administer a drug to someoneelse, for example by injecting them (section 13), or toallow someone to administer drugs (section 14). It is anoffence even if the person consents to the drug beingadministered to them.if someone diesA person who injects someone else with a drug thatcauses their death may be charged with manslaughter.Manslaughter means causing an unlawful death wherethe intention was not to kill or inflict a serious injury, butto inflict a minor injury or commit some other criminaloffence.getting medical helpIf an overdose or other emergency situation involvingdrug use occurs, you should call an ambulance or seekother suitable medical help. It is obviously the bestmedical option for the person who has overdosed.The ambulance service does not notify the police whenit attends a drug overdose. Hospitals and doctors alsodo not notify the police if you go to them requestingmedical attention.Police sometimes do attend overdose scenes. But policeguidelines are designed to encourage people to seekmedical help when necessary. So police are directed notmake arrests of an overdose victim or their friends, orany other people who are present at an overdose and mayhave also consumed drugs or be in possession of drugs.injecting roomsThe NSW government has permitted the establishmentof one licensed medically supervised injecting centre(in Kings Cross) on a trial basis. The centre’s licence isissued under section 36E of the DMTA.It is lawful for a person to use or possess a small quantityof a prohibited drug while in the injecting centre (section36N). Police guidelines also encourage the exercise ofdiscretion to not arrest or charge a person who is on theirway to or from, or in the vicinity of, the injecting centrewith possession offences. Supply offences in or near theinjecting centre are policed.It is an offence for anyone except the operators ofthe licensed injecting centre to ‘advertise or hold outin any way’ that their premises are available for theadministration of a prohibited drug (section 18A).supplySupply is very broadly defined (section 3) to includenot only selling or giving away drugs but also simplyagreeing to supply them.Supply also includes ‘deemed supply’ – possessingcertain quantities of drugs which are deemed to be forthe purpose of supply.A person can be charged with supply if they tell policethey intended to sell even a small quantity of drugs foundin their possession, or if they deliver drugs to a friend.They are also guilty of supply if they simply offer tosupply a drug, even if they have no hope, or no intention,of fulfilling the offer.What if it isn’t really a drug?If a person offers a substance to someone and says that itis a drug to persuade that person to buy or take it, theyare guilty of supplying the drug whether the substanceis actually the drug or not (section 40). For example,a person who offers to supply someone with heroinwhen all they have is icing sugar is considered guilty ofsupplying heroin.This is the case whether they have made a genuinemistake or are deliberately attempting to cheat thebuyer.(For possession and use offences the court must besatisfied that the substance is in fact a prohibited drug.)Deemed supplyA person will be presumed to be supplying a drug if theyare simply in possession of a particular quantity of thedrug, known as the traffickable quantity. This amountvaries from one drug to another, and in many cases is notespecially large.the case of the split stashA man was charged with possession of cannabis intwo separate premises. The combined weight exceededthe traffickable amount. He was convicted of deemedsupply. His appeal was unsuccessful: the court saidthat because he had bought all the drugs at the sametime, and they were the same texture and colour,there had been no miscarriage of justice (R v Wright,unreported CCA (NSW), 18 July 1986).10HOT TOPICS 59 > Drugs and the law

traffickable quantitiesA traffickable quantity of a drug is an amount deemedin law to be in a person’s possession for the purpose ofsupply. Some traffickable quantities are:> cannabis (leaf or heads) – 300 gm> heroin – 3 gm> amphetamines – 3 gm> ecstasy – 3 gm or 15 tabs> LSD – 0.003 gm or 15 tabs.Purity does not matter – only weight. Under the Act, onegram of a powder that is 10% heroin and 90% glucose istreated as one gram of pure heroin (section 4).Anybody found in possession of a traffickable quantityis presumed to be a supplier unless they can proveotherwise – for example, that the drug was intended forpersonal use, or disposal (section 29).the case of the sister’s stashA woman was found with ‘deemed supply’ quantitiesof cannabis and cocaine in her bedroom. She toldpolice that her sister had given them to her to lookafter, and that if the sister had not picked them upthe next day she would dispose of them. She wasfound guilty of possession, but not supply – becauseshe could prove that she was not in possession of thedrugs for the purposes of supply (R v Carey (1990) 20NSWLR 292).police directions in public placesPolice can legally give a ‘reasonable direction’ to a personin a public place who they believe on reasonable groundsis supplying, or soliciting supply of, or purchasingprohibited drugs. The direction must be ‘reasonable inthe circumstances for the purpose of stopping’ the supplyor purchase. It is an offence to fail to comply with thedirection without reasonable excuse (Law Enforcement(Powers and Responsibilities) Act 2002, section 197).ongoing dealingSection 25A of the Act creates a special offence ofsupplying drugs on an ongoing basis. The offenceinvolves the supply of a prohibited drug (exceptcannabis) on three separate occasions within a 30 dayperiod. The acts of supply must be for some financial orother material reward. They do not all have to involvethe same drug.A charge of ongoing dealing could be laid where anundercover police officer buys drugs from the same streetdealer on three different days. The police are not obligedto arrest the dealer immediately after the first sale.The maximum penalty for ongoing dealing is a $385,000fine and 20 years jail, regardless of the weight of thedrug supplied or the value of the transactions. This isequivalent to the maximum penalty for the supply of acommercial quantity of drugs (250 grams of heroin oramphetamine, or 500 grams of ecstasy).The NSW Court of Criminal Appeal has ruled that asentence for this offence of four and half years (with aminimum term of two and half years) is not excessive,even if the amount of drug supplied was only small andthe supplier was motivated by their own addiction ratherthan greed 3 .This offence is classed as wholly indictable, which meansit must be finalised in the District Court rather than theLocal Court. A person convicted of an offence under thissection (and other indictable offences) is not eligible tobe dealt with by the Drug Court.Large scale supplyHigher penalties apply for charges involving the supply of larger amounts of drugs. The Act divides trafficking offences into:> indictable quantities > commercial quantities > large commercial quantities. As with deemed supply, proof of possession of the relevant quantity is sufficient to establish that a person is guilty of that particular trafficking offence. The table shows the scheduled quantities.DRUG inDictable commeRciallaRGecommeRcialCannabis 1 kg 25 kg 100 kgleaf/headsHeroin 5 gm 250 gm 1 kgAmphetamine 5 gm 250 gm 1 kgEcstasy 5 gm/ 0.5 kg 2 kg25 tabsLSD0.005 gm/ 0.5 gm 2 gm25 tabspenaltiesThe maximum penalty for dealing with an indictablequantity of a drug is a $220,000 fine and 15 yearsimprisonment (10 years for cannabis).For a quantity of drugs in the commercial range, themaximum penalty is a $385,000 fine and 20 years jail(15 years for cannabis).For a large commercial quantity, fines of $550,000and life imprisonment (20 years for cannabis) can beimposed.[Note: penalties accurate as at 1 February 2007.]3. R v Smiroldo [2000] NSWCCA 120; available at http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2000/120.htmlpossession, use and supply 11

Other offencesdrug use equipMenTIt is an offence under the Drug Misuse and Trafficking Act1985 (NSW) (the ‘DMTA’) to possess equipment withthe intention of using it to consume drugs (section 11).The use must be future use. Evidence that the equipmenthas been used in the past is not relevant or sufficient toprove the charge 4 . The prosecution must show that theequipment was illegally possessed. The law is the sameas for possession – there must be knowledge and custodyor control.injecting equipmentIt is not an offence to possess a needle or syringe, whetherit has been used or not (section 11(1A)).It is (technically) an offence to possess other injectingequipment, such as tourniquets, spoons, and swabs. Inpractice, possession of this equipment is not prosecuted.sale of bongs and pipesIt is an offence to sell, supply or display for sale a bongor ice pipe, or the component parts of a bong or pipe,whether or not the bong or pipe was intended to be usedto administer a prohibited drug (section 11A).Offences invOlving prOHibiTedplanTsThe cultivation or possession of prohibited plants, suchas cannabis, is an offence under section 23.It is an offence under s 23(1) to:> cultivate> knowingly take part in the cultivation of> possess> supplya prohibited plant.What is included?Cultivation is defined to include sowing seed, planting,tending, nurturing or harvesting (section 3).Watering a plant, shading it from the sun, picking theheads off a friend’s plant, even watering ungerminatedseeds, all come within the definition of cultivation.And possession of plants is also an offence under thesame section and with the same maximum penalty asfor cultivation. There may be no evidence of cultivation,but evidence of possession (again, requiring proof ofknowledge and custody or control) of the plants, inwhich case that should be the charge laid.QuantitiesThe penalty categories for cultivating cannabis dependon the number of plants, not their gender or size.Cultivating a hundred seedlings that can fit into abaking tray is treated the same as cultivating a hundredmature female plants. Having 250 seedlings is regardedas more serious than having five big plants, even thoughthe weight of the five big plants may be many timesgreater.Higher penalties apply to offences involving thecultivation, supply and possession of a ‘commercialquantity’ of prohibited plants.Defences to cultivationIt is a defence to a charge of cultivation of a prohibitedplant if the accused can establish that they did not knowthe plant was a prohibited plant. The accused mustinform the court if they propose to give such evidence(s 23(4)(a)(i)). The onus of proof in this situation is onthe accused (s 40A(2)).The prosecution may rebut the accused’s evidenceby bringing, with leave of the court, evidence of anyprevious convictions (s 23(5)).hydroponic cultivationSection 3 defines ‘cultivation by enhanced indoor means’ to be cultivation that occurs:> ‘inside a building or structure’ and> involves the nurture of the plant in nutrient enrichedwater or application of artificial light or heat orsuspending the roots and spraying them with nutrientsolution.4. Erickson v Pittard [1976] 2 NSWLR 52812HOT TOPICS 59 > Drugs and the law

Section 23(1A) prohibits the ‘cultivation by enhancedindoor means’ of five or more plants for a commercialpurpose. ‘Commercial purpose’ means intending to sellor believing that another person intended to sell – section23(6). [Note that the offence of (outdoor) cultivation ofcannabis in s 23(1) does not involve any requirement toprove a commercial purpose.]So the offence requires the cultivation to be:> inside a building or structure and> involve growing the plant in nutrient enriched water orapplying artificial light or heat or suspending the rootsand spraying them with nutrient solution and> involve five or more plants and> be done with the intention to sell (or the beliefthat another person intends to sell) the cannabisproduced.Offences under section 23(1A) are wholly indictable.They must be dealt with in the District Court.offence categoriesThere are now two entries for cannabis as ‘prohibitedplants’ in the Schedule (‘cannabis cultivated by enhancedindoor means’ and ‘cannabis cultivated by any othermeans’). The relevant offence categories in the Scheduleare as follows:tRaffickableqUantitysmallqUantityinDictableqUantitycommeRcialqUantitylaRGecommeRcialqUantityhydro – 5 50 50 200outdoor – 5 50 250 1000penaltiesCultivation of less than the ‘small quantity’ of hydroponicplants (that is, less than 5 plants) is treated the same asfor outdoor cannabis plants. If dealt with summarily, themaximum penalty is $5500 and two years imprisonment(s 30(3)) or $220 000 or ten years if dealt with onindictment (s 32(1)(h)).The maximum penalty for cultivation of 5 to 49hydroponic plants is $385 000 and 15 years imprisonment(s 33(2)(b)). For cultivation of 50 or more hydroponicplants, the maximum penalty is also $385 000 and 15years imprisonment (s 33(2)(b)).For 200 or more hydroponic plants, a ‘large commercialquantity’, the maximum penalty is $550 000 and 20years imprisonment (s 33(3)(b)).exposing a child to indoor cultivationSection 23A(1) makes it an offence to cultivate ‘a plant’(note the singular) by enhanced indoor means and‘expose a child’ to the cultivation process or to substancesstored for use in cultivation.The maximum penalty for an exposing a child offenceinvolving one to four plants is a fine of $11 000 andtwo years imprisonment if dealt with summarily, or a$264 000 fine and 12 years imprisonment if heard onindictment.The maximum penalty for an exposing a child offencethat involves five to 199 plants is a $462 000 fine and18 years imprisonment. The maximum penalty for anexposing a child offence that involves 200 or more plantsis a $660 000 fine and 24 years imprisonment. Theseoffences are wholly indictable.It is a defence if the defendant can prove that theexposure did not endanger the health and safety of thechild. A child is a person under 16 for the purposes ofthese provisions.ManufacTuring drugsIt is an offence to manufacture, or to take part in themanufacture of, a prohibited drug, under section 24.The maximum penalty for manufacture of a prohibiteddrug depends on the quantity involved, with the samepenalties applying as for supply offences involvingcomparable amounts.The maximum penalty for manufacturing an indictablequantity of a drug is a $220 000 fine and 15 yearsimprisonment.For manufacturing a quantity of drugs in the commercialrange, the maximum penalty is a $385 000 fine and 20years jail, and for a large commercial quantity, fines of$550 000 and life imprisonment.possession of precursorsIt is an offence under section 24A to possess a ‘precursor’intended to be used in the manufacture of a prohibiteddrug. Substances defined as precursors are listed inSchedules 1 and 2 Drug Misuse and Trafficking Regulation2006 (NSW). The Regulation also provides that, forlegitimate uses, records must be kept for any storage orsupply of precursors, including an ‘end user certificate’which includes the name and address and proof ofidentity of the end user.The maximum penalty for this offence is a $220 000 fineand/or ten years imprisonment.other offences 13

south australiaSouth Australian police can issue an infringement notice(called an expiation notice) for the following offences:offencePenaltyPossession: leaf or headsLess than 25 g $50More than 25 g but less than 100 g $150Possession: hashishLess than 5 g $50More than 5 g but less than 20 g $150CultivationOne plant $150Other offencesSmoking (except in public) $50Possession of equipment $50The fine must be paid within 28 days. If you do not paythe fine in the prescribed time, you will be treated ashaving been convicted and fined by a court.The legislation is section 45A of the Controlled SubstancesAct 1984 (SA) and the Controlled Substances (Expiationof Simple Cannabis Offences) Regulation 2002 (SA) (Reg.6).australian capital territoryPolice in the ACT can issue an offence notice for thefollowing offences:offencePenaltyPossession: leaf or heads25 g or less $100CultivationOne plant (but not hydroponic) $100The fine must paid within 60 days.The legislation is section 171A of the Drugs of DependenceAct 1989 (ACT).northern territoryNorthern Territory police can issue an infringementnotice for the following offences:offencePenaltyPossession: leaf or headsLess than 50 g $200Possession: hashishLess than 10 g resin $200Less than 1 g oil $200CultivationTwo plants $200The fine must paid within 28 days.The legislation is Part IIB of the Misuse of Drugs Act1981.Western australiaWestern Australian police can issue an infringementnotice, called a cannabis infringement notice (CIN), forthe following offences:offencePenaltyPossession: leaf or heads15 g or less $100More than 15 g but less than 30 g $150CultivationTwo plants (but not hydroponic) $200Possession of smoking equipment $100Alternatively, you can elect to complete a cannabiseducation session (CES). The fine must be paid, or theeducation session undertaken, within 28 days, but thisperiod may be extended.The legislation is the Cannabis Control Act 2003 (WA)and Cannabis Control Regulation 2004 (WA).drugs and drivingIt is an offence (under s 12 of the Road Transport (Safetyand Traffic Management) Act 1999) to drive ‘under theinfluence’ of a drug or alcohol. Proof of this offencerequires proof beyond reasonable doubt that the driverwas intoxicated to some degree by the drug or alcohol.Since the introduction of breathalysers and randombreath testing for alcohol, drink driving offences arenow much more commonly charged as driving withthe relevant ‘prescribed concentration of alcohol’. Thisin effect bypasses any need to prove intoxication – thepresence of alcohol in a person’s system is sufficientevidence for the offence to be proved.Drug testingIf the police reasonably suspect that a person is drivingunder the influence of a drug, they have the power totake them to a hospital for a blood or urine test for thepresence of drugs, under the supervision of a doctor.The sample is divided into two. One half is sent togovernment laboratories and the other half is given to theperson for independent analysis.It is an offence to refuse to submit to a blood test or aurine test in these circumstances (Road Transport (Safetyand Traffic Management) Act, section 15). It is likewisean offence to wilfully alter the amount of drug in yourblood or urine before having the test, unless it is morethan two hours since you were driving (Road Transport(Safety and Traffic Management) Act s.16). The maximumpenalty for both these offences is a $3300 fine and 18months imprisonment, with licence disqualification fora minimum of 12 months. If it is the person’s secondmajor traffic offence in five years, the maximum penaltybecomes a $5500 fine and two years imprisonment, anddisqualification for two years.other offences 15

Random drug testingThe Government has introduced legislation to allowrandom roadside testing of drivers, to test for thepresence of cannabis, amphetamine or ecstasy. Theroadside tests involve a saliva test using portable drugscreening machines.The testing method is by saliva swab (an ‘oral fluidtest’) to test for the presence of THC (the psychoactiveingredient of cannabis), methamphetamine and ecstasy.If the saliva testing device indicates positive, then afurther saliva sample may be taken for analysis, with thetest result being provided as evidence in court.It is an offence to drive with THC, methamphetamineor ecstasy present in the person’s oral fluid, blood orurine (although only a driver’s saliva will be tested inmost cases).It is also an offence to drive with morphine or cocaine,but these substances will not be tested by saliva swab.The maximum penalty for driving with THC,methamphetamine or ecstasy is a fine of $1100 for a firstoffence, and $2200 for a second or subsequent offence.If the offence is the first serious driving offence (at leastin the last five years), the driver will be disqualified fromholding a driver’s licence for a minimum of three months(with six months the automatic period of disqualification).If there is an earlier serious traffic offence in the previousfive years, the automatic disqualification period is 12months, with a six month minimum period.As for the similar law about random alcohol testing,it is an offence to wilfully refuse to provide a salivasample, and to consume a drug after driving and beforeundergoing a saliva test.A 2005 study on cannabis and driving conducted jointlyby the NSW Bureau of Crime Statistics and the NationalDrug and Alcohol Research Centre suggests that driverswould be most effectively discouraged from driving afterconsuming cannabis where there is a high chance ofdetection.Fatal accidentsPolice can obtain blood or urine samples from driversinvolved in fatal road accidents.The maximum penalty for causing death while drivingunder the influence of a drug is 10 years jail (Crimes Act1900, section 52A). If the court is satisfied that you were‘very substantially impaired’ by the influence of a drug orcombination of drugs, the maximum penalty increasesto 14 years jail (section 52A (2), (7)).drugs in spOrTSporting associations have a general right to make rulesfor the conduct of organised sporting competitions.Those rules are binding, on the basis of a contract,on players who want to participate in those organisedcompetitions.At elite levels, the rules always include the right ofsporting bodies to require players to have a drug testfor performance enhancing drugs like anabolic steroids,in and out of competition. Some sports also test forrecreational drugs.The general principle is that if an athlete refuses or failsa drug test, the sporting bodies are entitled, subject totheir own constitutions and rules of procedural fairness,to suspend or ban the player.image u navailablePolice drug and alcohol bus launch. 12 December 2006.Jason South, The Age (Melbourne).16HOT TOPICS 59 > Drugs and the law

Police powersundercOver pOlicePolice investigations into drug offences commonlyinvolve the use of undercover officers who either offer adegree of encouragement to people to commit an offence,or participate in criminal activity, or both. There is nosubstantive defence of entrapment in Australian law 8 .The fact that drugs are supplied to an undercover policeofficer who encourages the supplier to break the law isnot a mitigating circumstance in sentencing 9 .In Ridgeway, the High Court ruled that althoughgenerally evidence obtained by undercover police agentsin the course of their participation in a drug importationwas admissible, the degree of police involvement in thecriminal activity in that particular case was excessive (andso the resulting evidence obtained was inadmissible).In response to this decision, both NSW and federalgovernments passed legislation to make otherwiseunlawful conduct by police (such as the supply ofprohibited drugs) legal, provided it is authorised as partof a controlled operation.searcHesPolice have some powers to search people and property,and seize articles such as drugs for evidence, but theirpowers are not unlimited.There are different rules for personal searches, andsearches of houses or land.personal searchesThe police can search a person without arresting themunder the Law Enforcement (Powers and Responsibilities)Act 2002, section 21. This section gives police the powerto ‘stop, search and detain’ anyone who they ‘reasonablysuspect’ might be in possession of drugs. Police cansearch a vehicle if they have a similar reasonable suspicionunder the Law Enforcement (Powers and Responsibilities)Act 2002, section 36.case sTudythe case of the highway hirerin DPP v Leonard [2001] nsWsc 797, the defendant, drivinga hire car, was stopped for a random breath test on thesturt highway. the police officer told the defendant thatit was common for cannabis to be transported in hire carson that highway, and asked if he could search the car.the defendant said, ‘go for it, there’s nothing in there’.the police found a traffickable quantity of cannabis in theboot. the magistrate hearing the case found that the policedid not have reasonable grounds for suspicion to justifya search and that the defendant’s consent was not validbecause the police had not informed him that he had aright to refuse consent.on appeal, the supreme court ruled that the consent wasvalid and therefore the search was legal. the police donot have to advise you that you can refuse. (interestingly,the Director of public prosecutions did not appeal themagistrate’s finding that there were no reasonable groundsfor the search in the officer’s stated reasons.)search after arrestThe police have the right to search a person after anarrest (Law Enforcement (Powers and Responsibilities) Act2002, section 23).A police officer above the rank of sergeant can requestthat a doctor examine a person in custody (if suchan examination is relevant to the charge) without theperson’s consent.Women should only be searched by a woman policeofficer. If no female constable is available, however, thepolice can request ‘any female’ to conduct the searchunder their direction.sniffer dOgsIn recent years, police have used specially trained dogsto detect the presence of prohibited drugs. This practiceraised questions about whether the activity of snifferdogs itself amounts to a search.The situation has been clarified both by legislation and aNSW Supreme Court decision.8. Ridgeway v R [1995] 184 CLR 199. R v Chan [1999] NSWCCA 103 (unreported)police powers 17

LegislationUnder section 148 of the Law Enforcement (Powers andResponsibilities) Act 2002 police can use sniffer dogswithout a warrant to detect illicit drugs, but only for‘general drug detection’, defined to mean using a dog todetect the potential presence of drugs by smell, beforethe police conduct any actual search of the person ortheir belongings.sniffer dogs and warrantsPolice can use a dog to assist with general drug detectionwithout a warrant (Law Enforcement (Powers andResponsibilities) Act 2002, s 148), in relation to a personwho is at, entering or leaving:> premises licensed for the consumption of liquor soldthere (not including a restaurant or dining room)> a public place being used for ‘a sporting event, concertor other artistic performance, dance party, parade orother entertainment’> a train, bus or light rail vehicle, on a prescribed route,or a station, platform or stop.In other circumstances – for example, in a public street– police can only use drug detection dogs to searchpeople or vehicles with a warrant issued under theLaw Enforcement (Powers and Responsibilities) Act 2002,section 149.A police officer is authorised to use a dog for generaldrug detection only as provided under the Act (LawEnforcement (Powers and Responsibilities) Act 2002,section 147).in the supreme courtIn DPP v Darby 10 the defendant was searched outsidea nightclub after a sniffer dog had indicated to policethat he was in possession of prohibited drugs. The courtruled that the sniffer dog’s activity did not amount to asearch. It found that the dog’s reaction was a basis forforming a suspicion by the police, just as informationfrom another officer, or from a member of the public,or an officer’s own perceptions (for example, of a strongodour of cannabis) might be a basis for an officer to forma suspicion.Darby applied a 1998 South Australian Supreme Courtdecision – Questions of Law Reserved (No. 3 of 1998) 11 ,which came to a similar conclusion. In that case, the SASupreme Court decided that a dog sniffing a suitcase inthe luggage compartment of a bus was not conducting asearch. Special leave to appeal this decision was refusedby the High Court. 12ombudsman’s reportThe NSW Ombudsman’s 2006 report on the introductionof the sniffer dog legislation was that drugswere found in only a quarter of cases where the dogshad indicated the presence of drugs, which suggests thatsniffer dog ‘indication’ may be of doubtful accuracy.The Ombudsman report also found that the use ofsniffer dogs had no apparent effect on apprehendingdrug suppliers, with less than 1% of the over 2000people found in possession after a search, successfullyprosecuted for supply.inTernal searcHesWhere the police suspect that a person has swallowedor is internally concealing a prohibited drug, and thatthe person has committed or is committing an offenceinvolving supply of a prohibited drug, they may detainthem to arrange an internal search (Law Enforcement(Powers and Responsibilities) Act 2002, section 155).An internal search involves ultrasound, X-rays, MRI(magnetic resonance imaging) or some other form ofmedical imaging, but does not include intrusion intoa body cavity. It can only be done by a doctor or otherqualified person.A child under 10 cannot be required to submit to aninternal search.Adult suspects are asked to consent to the search. Policemay apply to an eligible judicial officer for an order forinternal search and detention if:> the person refuses consent> is under 18, or> is incapable of giving informed consent.Where an internal search reveals the presence of anythingthat might be prohibited drugs, the person may bedetained for 48 hours. This period may be extended byan eligible judicial officer, but no more than twice unlessin exceptional circumstances.searcH friendA person is entitled to have a search friend present ata hearing of an application for an internal search, andduring the search itself, if they are:> under 18> incapable of giving consent, or> an Aboriginal or Torres Strait Islander.A search friend can be:> a parent or guardian> a legal representative> a representative of an Aboriginal legal aidorganisation> another person chosen by the suspect.10. [2002] NSWSC 1157 (unreported)11. (1998) 71 SASR 22312. Hoare v The Queen (1989) 167 CLR 34818HOT TOPICS 59 > Drugs and the law

persOnal searcHes by cusTOMsOfficersPeople coming into Australia are obliged to answerquestions from a customs officer about prohibited drugs.Luggage can be inspected even where there is no reasonto suspect that it might contain drugs.types of searchThere are two types of personal searches available underthe Customs Act in relation to a person suspected ofcarrying prohibited imports: frisk searches and externalsearches.A frisk search is a quick feel of a person’s outer garments,including any clothing voluntarily removed. An externalsearch involves a search of a person’s body (but not bodycavities) and any of their clothing.If a person refuses a frisk or an external search, thecustoms or police officer may apply to a speciallyauthorised customs officer or a magistrate for an orderthat an external search be made.Detention and searchIf a customs or police officer suspects on reasonablegrounds that a person is carrying prohibited imports,they may be detained and searched. The search must beconducted as soon as practicable by an officer of the samesex, and appropriate arrangements made for privacy.if internal concealment is suspectedPeople reasonably suspected of internally concealinga suspicious substance may be detained by a customsofficer or police officer. The chief executive officer ofCustoms or a police officer must then seek a detentionorder (up to 48 hours, but renewable) from a judge ormagistrate.If the person detained does not consent to an internalsearch, the customs or police officer must apply to ajudge for an order for a medical practitioner to carry outthe search.searcHes Of prOperTyTo enter a person’s home or any other private propertywithout an invitation, the police must have a searchwarrant. This means that they must swear on oath toan authorised officer that they have reasonable suspicionof a crime being committed on those premises, and thebasis of that suspicion (Law Enforcement (Powers andResponsibilities) Act 2002, sections 47 & 48).When police are at the premisesWhen police go to premises with a search warrant theymust produce an occupier’s notice, otherwise they do nothave the right to enter the premises.image u navailableCustoms at Melbourne Airport: the drug detector dog working in the baggage carousels before they get to travellers.Angela Wylie, The Age (Melbourne).police powers 19

It is an offence to obstruct or delay police entry, or givean alarm. A person should not resist a police officer whoappears at their door with a search warrant. To do so isan offence (Law Enforcement (Powers and Responsibilities)Act 2002, section 52).police powers with a warrantThe police can use as much force as is reasonablynecessary to conduct the search, which can mean pullingout drawers (and ceilings).Search warrants also give police the right to searcha person found in or on the premises if they have areasonable suspicion that the person has the thingmentioned in the warrant (Law Enforcement (Powers andResponsibilities) Act 2002, section 50).With a warrant, police can cross property owned byothers, break open doors and windows and do other‘necessary’ acts to a property reasonably suspected ofbeing drug premises (Law Enforcement (Powers andResponsibilities) Act 2002, section 141).evidence from illegal searchesEvidence obtained through illegal police searchesis admissible, if the magistrate or judge uses theirdiscretion to allow it. The prosecution must establishthe desirability of admitting the evidence (Evidence Act1995, (NSW), section 138).Detection by helicopterWhere a police helicopter detects cannabis plants fromthe air and police then enter the property without awarrant, the evidence obtained may not be admissible.In Nicholson and Curran 13 the discretion was exercisedto not admit evidence of cultivation obtained from sucha raid, resulting in the conviction being quashed. Insubsequent civil proceedings, the same appellants and22 of their fellow residents at the Wytaliba communitywere awarded a total of over $1 million in damages forthe police trespass (Curran v Walsh 14 ).Writs of assurance and customs warrantsWide powers are given to customs officers in possessionof a writ of assistance (issued by a Supreme Courtjudge), and customs and police officers in possession ofa customs warrant.These are general warrants; they last for periods of timeand are not confined to the investigation of a specificset of circumstances. Those in possession of thesewarrants can, at any time, enter and search any premises,including houses, in which drugs may be or are supposedto be. They do not have to show reasonable suspicion,and may use force.seeking the proceeds of crimeSearch warrants can also be issued under the legislationdealing with the confiscation of proceeds of crime. Theycan, for example, cover documents that can assist intracking down property that is drug-derived or whichbelongs to those who are reasonably suspected of drugrelatedactivities.geTTing legal adviceYou may be able to obtain free help (or help at a reduced cost) from:> LawAccess NSW> the Legal Aid Commission or Aboriginal Legal Service> a community legal centre.Lawaccess nsWLawAccess NSW is a free government telephoneservice offering legal information, referral toappropriate free legal services in your area or privatesolicitors, and in some cases, legal advice.Tel: 1300 888 529Legal aidThe Legal Aid Commission provides free legalrepresentation in drug cases if you qualify under themeans test. This means test is complicated. Whetheryou qualify depends on:> your income> how many dependants you have> other factors like how much rent you pay.If you receive a Centrelink pension or benefit, youwill usually qualify under the means test. If you don’treceive Centrelink payments but you are on a lowincome, you should apply for legal aid. It is worthtesting whether you are eligible. Often people qualifyfor some legal aid, but must also make a contributiontowards the cost.The Legal Aid Commission will also give you free advice, even if you don’t qualify for legal aid. aboriginal Legal servicesIf you are an Aboriginal person or a Torres StraitIslander, you can get free legal representation for drugcases and other criminal matters from the AboriginalLegal Service in your area.community Legal centresIf you don’t qualify for legal aid and you can’t affordto pay a lawyer, you can get free legal advice froma community legal centre. They will advise you butusually will not represent you in court.13. (unreported, District Court Inverell, 25 March 1999)14. unreported, District Court, 17 October 200020HOT TOPICS 59 > Drugs and the law

Youth drugand alcohol issuesDRugs in state schooLsState school principals have wide legal powers to makerules about the conduct of the students at their schooland to suspend students who break the rules in a seriousway. Most schools have rules against possessing or usingdrugs at school.If a student is found possessing or using drugs, theywill probably be suspended for at least several days. Ifa student is caught dealing drugs at school they willprobably be expelled, or at least suspended for a lengthyperiod of time.The school may also report the student to the police, inwhich case they will also be charged and brought beforethe court (the Children’s Court if they under 18 yearsof age).If a student is suspended or expelled because of drugsand they are not guilty or they think the penalty is toosevere, they can appeal to the Director General or theMinister for School Education and ask that the decisionbe reconsidered.drugs in privaTe scHOOlsPrivate schools each have different rules. Private schoolprincipals usually have more independent authority.Generally private schools and state schools could beexpected to have a similar approach in cases of possessionor supply at school. Expulsion or suspension are likely,depending on the circumstances.teachers’ powersTeachers do not have the same powers as the police have. Teachers do not have the right to:> search a student, their clothing or their bag (unless the student agrees to being searched)> hold a student or lock them in a room.However, teachers can:> search school property, like a desk or a locker (if thestudent has not paid to use it)> confiscate any drugs they find.The school may call the police, who do have the right tosearch the student.image u navailablesuspension and expulsionState school principals have the power to suspendstudents for a limited period of time, but principals don’thave the power to expel. A decision to expel a student canonly be made by the Department of School Education.The principal must write to the student and their parentsor carers if they are considering recommending expulsionto give the student a chance to dispute the reasons ormake any other comment. If the principal then decidesto recommend expulsion, the student must receive a copyof the principal’s submission to the department. Thestudent has 14 days to make any comment.A Hampton.Youth drug and alcohol issues 21

alcOHOl and yOung peOpleThere is no general law that absolutely prohibitsyoung people drinking alcohol. It is illegal in somecircumstances, but not in others.It is illegal for a person under 18 to possess or drinkalcohol in a public place, if they are not under thesupervision of a responsible adult (Summary Offences Act,section 11). The young person can be fined a maximumof $20 and the alcohol confiscated.It is also illegal for a person under 18 years to drinkalcohol on licensed premises, such as pubs, clubs andlicensed restaurants.But it is not illegal for a person under 18 years toconsume alcohol in a private place – for example, athome or at a private barbecue or party. A person under18 can also legally drink in a public place if they arewith a responsible adult (and provided they are not in adeclared alcohol free zone).image u navailableAnd someone under 18 years can legally drink alcohol inan unlicensed (BYO) restaurant, but only if they are inthe company of a parent or guardian who has approvedtheir drinking.It is an offence for anyone except the parent or guardianof the young person to sell or supply alcohol to a personunder 18 years old, or to obtain alcohol on behalf ofsomeone under 18. Similarly, it is an offence for thelicensee of licenced premises to allow alcohol to besupplied to a person under 18.It is an offence for a young person to obtain or attempt toobtain alcohol from licensed premises, including a bottleshop (Liquor Act, section 115(1)). It is also an offencefor a young person to use false evidence of age to obtainalcohol (section 113). The maximum penalty in eachcase is a fine of $1100.The exception allowing a parent or guardian to supplyalcohol to a young person does not apply to licensedpremises. In other words, parents and guardians canlegally supply their under 18 year-old children withalcohol, but not in pubs, clubs and licensed restaurants.The maximum penalty for these offences is usuallya $5500 fine, but if the court considers there are‘circumstances of aggravation’ (for example, if the youngperson is very young, or the amount of alcohol suppliedis large), the penalty increases to a maximum fine of$11 000 and 12 months jail (section 114 Liquor Act).TObaccO and yOung peOpleIt is not an offence for a person under 18 to possess or usetobacco cigarettes.However, it is an offence to sell tobacco to a personunder 18. The maximum penalty is a $5500 fine (section59(1) Public Health Act 1991). There is a similar penaltyfor the offence of selling ‘non-tobacco smoking products’(that is, herbal cigarettes) to a person under 18.It is not an offence to give tobacco (or herbal) cigarettesto a person under 18, because the Public Health Act onlyprohibits sale, not supply in the broad sense.See also: Drug offence cautions for people under 18, p 25and Youth Drug and Alcohol Courts, p 26.A Hampton.22HOT TOPICS 59 > Drugs and the law

The court processpresuMpTiOn in favOur Of bailFor minor drug offences, there is a presumption infavour of bail (Bail Act section 9). This means that thecourt will grant bail unless the police can show why itshould not be granted.This presumption operates for offences where the quantityof drugs involved is less than twice the indictablequantity; for example, offences involving:> less than 2 kilograms of cannabis (the indictablequantity is 1 kilogram)> 10 grams of heroin or other powders (the indictablequantity is 5 grams)> cultivating fewer than 100 cannabis plants (theindictable quantity is 50 plants).Despite the presumption, bail could be refused wherethe person has a poor bail history—for example, if theperson has allegedly committed the offence while onbail or parole for another offence, or is subject to a goodbehaviour bond, or has previously failed to appear toanswer a charge.presuMpTiOn againsT bailThere is a presumption against bail for offencesinvolving:> the cultivation of a commercial quantity of plants (250plants)> the supply or manufacture of a commercial quantityof drugs (250 grams of heroin or amphetamine, 25kg of cannabis leaf or head), or importation offenceinvolving similar quantities.This does not mean that bail will not be granted; itmeans that the court will not grant bail unless the personcharged can show that bail should be granted.WHaT is cOnsidered?The main factors taken into account in deciding whetheror not to grant bail are whether it is probable that theperson applying for bail will appear in court for thehearing, the interests of the person applying for bail(obviously it is usually in their interests to be allowedto go free on bail), the protection of witnesses, and theprotection and welfare of the community.penalTies fOr drug OffencesAbout 150 people are imprisoned each year in NSWfor drug possession (usually for relatively short terms).Another 600 people are jailed for supplying or cultivatingdrugs.The tables below show the types of penalties imposedby Local and District Courts in 2005 (the most recentfigures available) for the most common types of drugoffences. Of course, every case is different, so thesetables give a general idea only of the likely penalty forparticular offences.Where a person has been convicted of more than oneoffence, the penalty shown is that imposed for the mostserious offence.pleas and previOus recOrdA plea of guilty for dealing or trafficking offences carriesless weight than is usually the case for other offences, butstill attracts a ‘discount’ on sentence. Similarly, havingno previous record carries less weight than usual insentencing for dealing offences.lOcal cOurT penalTiesPenaltyPossessionanD UsesUPPlycUltivation/manUfactURefine 3119 29 267prison 122 141 30suspended 69 120 59sentenceperiodic3 15 9detentioncommunity 30 69 43servicebond 521 111 169no conviction 758 7 87recordedother 29 5 3total 4651 497 667the court process 23

disTricT cOurT penalTiesPenaltysUPPlycUltivation/manUfactURefine – – –imPoRtationprison 285 73 49suspendedsentence114 18 1home detention 4 – –periodicdetentioncommunityservice38 10 112 1 –bond 12 2 –no convictionrecorded2 2 –total 467 106 51These figures do not include all drug offences prosecuted.For example, in 2005 there were a total of 8986 chargeslaid for drug possession. In just over half of those cases(4651), the possession charge was the ‘most serious’,perhaps the only, charge.cOnclusiOnsMost offences involve small quantities of drugs and aredealt with in the Local Courts where the jurisdictionallimit is an $11 000 fine and two years imprisonment,even if the maximum penalty set out in the Drug Misuseand Trafficking Act is higher. The following conclusionsare based on the 2005 statistics:> for possession, by far the most common charge,two thirds of defendants received a fine, the averagearound $325> small scale supply convictions in the Local Courtusually attract either prison sentences (on average,around 7 months) suspended prison sentences, orgood behaviour bonds (the average length is about18 months)> for larger supply cases – heard as indictable mattersin the District Court – about 60% of defendants aresentenced to prison, with the average term 25 months.A further 10% are sentenced to periodic detention(with a 12 month average), and another 25% get asuspended prison sentence> for cannabis cultivation cases dealt with summarily inthe Local Court, the most common penalties are fines(with the average just over $600) or good behaviourbonds (average 16 months). For larger scale cases inthe District Court, the most likely outcomes are prison(average 24 months) and suspended prison sentences> generally speaking, where the drug concerned iscannabis, the penalty tends to be a little lower than forother drugs.image u navailableMore than 200 police from crime agencies, Tactical Response Group and Rescue Squad take part in operation StrikeForce Ranger in an investigation into large scale drug trafficking in Telopea Street, Punchbowl and numerous otheraddresses across Sydney's South West.Dean Lewins, AAP PHOTO.24HOT TOPICS 59 > Drugs and the law

Diversionfrom the criminal justice systemRecently there have been several initiatives thataim to divert some minor drug offenders fromthe criminal justice system (through cautioning),and to encourage drug dependent offenders intotreatment programs (through drug courts).cannabis cauTiOningNSW police have an official discretion to caution adultsfor minor cannabis offences, and to caution people under18 for minor offences involving any prohibited drug.For adultsThe official police guidelines recommend that policeofficers use their discretion to issue an official caution,rather than charge a person over 18 who is found:> in possession of 15 grams or less of cannabis, or> using cannabis, or> in possession of smoking implements (a pipe orbong).There is no need for the police to weigh the drug, as longas they are satisfied that the amount involved is under the15 gram limit.The cautioning scheme for adults does not includecultivation of cannabis, even for small numbers ofplants.guidelinesThe guidelines provide that to qualify for a caution, theperson must:> admit the offence> have no criminal history for drug offences (includingpossession), sexual assault or other offences involvingviolence> have received no more than two cannabis cautionspreviously> establish their identity (normal checks on identity willbe carried out)> satisfy the police that the cannabis is for personal useonly> have no other charges that must be determined incourt anyway. (For example, if the police find a fewgrams of cannabis in the pocket of a person chargedwith stealing, both the theft charge and the drugpossession charge will go to court.)As well, there is an overriding discretion in the hands ofpolice. So even if these guidelines are satisfied, the policecan still decide to prosecute.procedureCannabis cautions to adults are issued on the spot.The police will give the person a cannabis cautioningnotice, a pamphlet about the legal status of cannabis andinformation on the health consequences of cannabis use.Their name and address will be recorded on the policecomputer system.If an adult receives a second cannabis caution, they arereferred to a compulsory drug education session.Drug offence cautions for people under 18For people under 18, the discretion to not prosecuteapplies to minor offences involving other drugs as wellas cannabis, and to cannabis cultivation.For young people, the drug cautioning system is part ofa range of alternative systems under the Young OffendersAct 1997 to divert young people from courts and prisons.Those alternatives are formal police cautions, warningsand conferences (where the offender and the victim meetto discuss the impact of the offence and determine anoutcome plan). Conferences for drug offences are rare,and are only used where there is another offence that isto be dealt with at a conference.Diversion from the criminal justice system 25

What offences can be dealt with?The following drug offences can be dealt with under theYoung Offenders Act:> possession of 15 grams of cannabis or less> possession of smoking implements> cultivation of no more than five cannabis plants> possession of no more than one gram of heroin,cocaine or amphetamine> possession of no more than 0.0008 grams of LSD> possession of no more than 0.25 grams of ecstasy> use of a prohibited drug.As for adults, the police must accept that the drugs arefor personal use rather than supply, the young personmust admit the offence, and there must be no otheroffences committed or suspected that would require theperson to go to court anyway. The person has the right toobtain legal advice before making an admission of guilt.proceduresA juvenile caution is not administered on the spot, but aweek or so later at a police station or another place (forexample, a youth centre). The caution can be given by apolice officer or someone else (such as a drug and alcoholworker).There is no limit on how many juvenile cautions can beissued to a young person, and no strict guidelines aboutprior criminal records. But cautions are discretionary– so presumably, the more cautions a person has, the lesslikely it is they will get a caution again.WarningsWarnings can also be used. A warning is less formal thana caution, and is issued on the spot by a police officer.The young person does not have to admit guilt, but theymust supply their name and address.drug cOurTsThere are presently three separate types of drug courtin NSW:> the Drug Court at Parramatta> the Youth Drug and Alcohol Court> the Local Court’s MERIT scheme.The Parramatta Drug Court has been operating sinceearly 1999. The court’s statutory object is to reduce drugrelatedcriminal activity by diverting drug dependentoffenders to rehabilitation programs.The Drug Court is a sentencing court, with thejurisdiction of both the Local Court and the DistrictCourt. Offenders are referred to the Drug Court byother courts (from western Sydney only).To be eligible to be dealt with by the Drug Court, anoffender must:> be apparently dependent on a prohibited drug (notalcohol)> plead guilty, and> have been charged with an offence which is ‘highlylikely’ in the circumstances (for example, the offender’sprior record) to result in their imprisonment.If a person is charged with an indictable offence underthe Drug Misuse and Trafficking Act which cannotbe dealt with summarily (for example, supply of acommercial quantity of a prohibited drug), or an offenceinvolving ‘violent conduct’ or sexual assault, they are noteligible for sentencing by the Drug Court.alternatives to punishmentThe Drug Court can, instead of imposing a punishment,require an offender to participate in an ongoingrehabilitation program, under court supervision. Unlikea conventional court, the Drug Court encourages acollaborative involvement of judge, defence lawyer,prosecutor and clinical staff in determining how a matteris dealt with. Typical program orders might includeattendance at counselling or other therapy sessions,and regular drug testing. The Court can also imposeconventional punishment.action by the courtThe offender must agree to the program of treatmentand conditions proposed by the court. The conditions ofa person’s program can be varied by the court.As well as determining a program for the offender, theDrug Court must also impose a penalty for the offence,but it immediately suspends the sentence. If the offendersatisfactorily completes the program, that will be takeninto account in determining the final sentence, such asa good behaviour bond. The final sentence cannot behigher than the original suspended sentence.THe yOuTH drug and alcOHOl cOurTA Youth Drug and Alcohol Court (modelled on theParramatta Drug Court) has been established in someparts of Sydney.The Youth Drug and Alcohol Court operates fromCobham, Bidura and Campbelltown, with participantsreferred from other Children’s Courts. Places in theYouth Drug and Alcohol Court program are limited.26HOT TOPICS 59 > Drugs and the law

Referral to the Youth Drug and alcohol courtTo be referred, a young person must:> be charged with an offence able to be dealt with bythe Children’s Court (that is, not a serious indictableoffence, a sexual offence or a traffic offence)> have an alcohol or drug problem> plead guilty> not be eligible for a caution or conference under theYoung Offenders Act> be likely to have a detention order imposed> agree to participate in the Youth Drug and AlcoholCourt program> live in (or have family, work or other strong connectionswith) the areas served by the Campbelltown, Cobhamor Bidura Children’s Courts.assessment and reportThe Youth Drug and Alcohol Court will initiallyadjourn a young person’s case to allow for an assessmentby a court-based intake officer from the Department ofJuvenile Justice.If considered suitable by the Youth Drug and AlcoholCourt magistrate, the person is referred to a jointassessment and referral team, which undertakesan intensive, holistic assessment and reports to themagistrate. If the young person is assessed as not eligible,the matter will be referred back to the original Children’sCourt.Magistrate’s decisionThe magistrate then determines whether to put the youngperson in the program (if there is a place). Sentencingwill then be deferred, with the young person placed ona six month Griffiths remand. A typical program planmight include reporting back to the court as directed,submitting to regular drug and alcohol testing, andbeing of good behaviour. Successful completion of theprogram is taken into account in sentencing.THe MeriT scHeMeThe Local Court program for diversion to treatmentscheme is called MERIT (Magistrates’ Early ReferralInto Treatment) 15 . MERIT is not available at every LocalCourt, but is being extended to Local Courts aroundNSW.MERIT allows for a case to be adjourned, generallyfor three months, while the defendant undertakesdrug rehabilitation. Participants are granted bail withattendance at MERIT program activities being acondition of bail.Suitable MERIT candidates are not required to entera plea to the charges before being accepted into theprogram.Participation in the MERIT program is voluntary. Aperson assessed as suitable can elect not to participate inthe program and instead have their matter referred backto the Local Court for determination or sentencing.Bail a pre-requisiteMERIT participants are granted bail, generally for threemonths, with attendance at MERIT program activitiesbeing a condition of bail. Generally, the defendantwill be required to attend court about six weeks aftercommencing treatment to monitor their progress.Failure to attend is reported to the court, but is nottreated as a breach of bail conditions. Similarly, failureto respond to treatment, or to undertake treatment, doesnot result in any punishment, or any additional penaltyfor the offence charged.treatmentSuitable candidates who choose to participate are offereddrug treatment considered appropriate to their situation,including medically supervised detoxification, homedetoxification, methadone or other pharmacotherapy,residential rehabilitation, and/or counselling.completion of programSatisfactory completion of the program will be reported tothe court and will be taken into account in determiningpenalty.Who can participate?Potential candidates for participation in the MERITprogram must:> be suitable for release on bail> be over 18> not be charged with assault, sexual assault or a whollyindictable offence> have a demonstrable and treatable illicit drug problem> be assessed by a court-based clinician as suitable for theprogram> be approved for participation by the magistrate.15. See the MERIT scheme webpage at http://lawlink.nsw.gov.au/meritDiversion from the criminal justice system 27

Contacts and further readingThe Legal information access centre (Liac)in the State Library of NSW can help you withlegal information including cases, legislation andcommentary. The service is free and confidential.Contact details are on the back cover.Information on getting legal advice is on p 20.useful resOurcesDrug info @ your library provides up to dateinformation about alcohol and drugs on the websitewww.druginfo.sl.nsw.gov.au/ and through local publiclibraries in New South Wales.nsW office of Drug and alcohol policywww.druginfo.nsw.gov.au/homeContains lots of information on drugs and relatedcriminal justice issues, including links to manypublications and reports, both government and nongovernment.national Drug and alcohol Research centrewww.med.unsw.edu.au/NDARCWeb.nsf/page/PublicationsThere are many recent articles available here in full text; click on Monographs or Reports to browse.nsW Bureau of crime statistics and Research(BocsaR)This site has a wealth of information on drugs, crimeand other related topics. Go to www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_topicsand browse the subject list to find relevant articles andreports, such as:‘Driving under the Influence of Cannabis: The Problemand Potential Countermeasures’, Craig Jones et al, Crimeand Justice Bulletin 87, National Drug and AlcoholResearch Centre and NSW Bureau of Crime Statisticsand Research, Sydney, 2005.‘Does Prohibition Deter Cannabis Use?’ DonWeatherburn and Craig Jones, NSW Bureau of CrimeStatistics and Research, Sydney 2001.australian national council on Drugswww.ancd.org.au/publicationsUnder ‘Publications’ there are research papers andposition papers available in full text, including therecent position paper on methamphetamines.Drug Laws in new south Wales, Peter Zahra et al,Federation Press, Sydney, 1998.Lawyers practice Manual (Chapter 1.09) ThomsonLegal and Regulatory, Sydney (Looseleaf).Rough Deal: a plain english guide to DrugLaws in nsW, Steve Bolt, Redfern Legal CentrePublishing, Sydney, 2005. Available in all NSW publiclibraries.the politics of heroin, Alfred McCoy, LawrenceHill Books, New York, 1991.Modernising australian Drug policy, Alex Wodakand Timothy Moore, UNSW Press, Sydney 2002.Drug Law Reform: Beyond prohibition, AndrewMacintosh, Australia Institute, 2006. Available fromwww.tai.org.au – go to Discussion Papers.From Mr sin to Mr Big: a history of australianDrug Laws, Desmond Manderson, Oxford UniversityPress, Melbourne, 1993.Review of the Police Powers (Drug DetectionDogs) Act 2001 NSW Ombudsman, Sydney, 2006.‘Where there’s smoke’ – cannabis and mentalhealth, Mental Health Council of Australia, 2006.This report examines the relationship between cannabisand mental illness, interventions and treatments.Available from http://www.mhca.org.au/nsW parliament Library Research papersThese excellent resources are available online fromwww.parliament.nsw.gov.au Go to informationresources, then research papers to find reports such as:Crystal Methamphetamine Use in NSW, Talina Drabsch,NSW Parliamentary Library Briefing Paper No19/2006.28HOT TOPICS 59 > Drugs and the law