The federal government and each Australian state and territory plays a role in the prosecution of drug crimes. Federal law governs the importation of drugs into Australia. Federal and state laws address drug trafficking, manufacturing drugs, growing illegal plants, and possession of illicit drugs. Some states regulate drugs that the federal law does not cover. State drug laws that punish the sale and possession of controlled drugs include:
QLD: Drug Misuse Act 1986
NSW: Drug Misuse and Trafficking Act 1985
VIC: Drugs, Poisons and Controlled Substances Act 1981
sWA: Misuse of Drugs Act 1981
SA: Controlled Substances Act 1984
Federal and state drug laws are similar in many respects although some details vary, including potential penalties. When there is an arguable conflict between state and federal law, courts must decide how to resolve that conflict.
This eBook provides a brief introduction to Australian drug laws. It will help you understand how drug crimes in Australia are defined and punished. It is not meant to be a comprehensive guide to drug laws, which tend to be complex and are subject to frequent change. Many more drug crimes exist than this short eBook can discuss. The differences between state laws are often too subtle to explain here. If you need more detailed information about drug crimes, particularly if you have been (or think you might be) charged with a drug crime, you should talk to a lawyer.
While we hope that you find it interesting and helpful, keep in mind that this eBook is informational. It does not provide, and is not a substitute for, legal advice. You can only get legal advice from a lawyer. Legal advice requires an analysis of the facts of your specific case. Every case is different and a small difference in the facts can change the advice a lawyer will provide. If you are charged with, or suspected of, a drug offence in Australia, you should consult with a lawyer to learn how your case can be defended.
Federal regulations define certain drugs (generally those that are subject to abuse) as controlled drugs. They are "controlled" in the sense that a consumer cannot legally purchase them without a prescription. Some controlled drugs cannot be prescribed and therefore cannot be legally purchased under any circumstances. The law imposes similar restrictions on certain plants and on certain drug precursors (chemicals that can be used to manufacture a drug).
Different states regulate or ban drugs in different ways. Queensland, New South Wales, and South Australia ban any substance that has a psychoactive effect, other than alcohol, tobacco, or food. That approach avoids the need to classify new recreational drugs as they are invented. Other states regularly add new drugs to their list of controlled drugs. Those lists are not necessarily the same in every state, although no state classifies alcohol, tobacco, or inhalants as controlled drugs. If you have a question about whether a particular drug is illegal in your state, you should ask a lawyer.
The federal Customs Act 1901 prohibits the importation of illegal drugs into Australia. It also authorizes the government to regulate the importation of legal drugs. For instance, narcotics that have an accepted medical use can be imported into Australia, but the importer must be licensed. Importing or exporting certain "border controlled" drugs is prohibited by division 307 of the federal Criminal Code Act 1995. The penalty for committing an import or export crime depends upon the drug and upon the quantity that was imported or exported.
Common border controlled drugs to which the law applies include cocaine, heroin, amphetamines (including methamphetamine), MDMA (Ecstasy), and cannabis (marijuana). Opium, LSD, and psilocybin (mushrooms) are among the other drugs that are border controlled.
Division 302 of the Criminal Code Act 1995 prohibits trafficking in controlled drugs. Trafficking means:
Trafficking a controlled drug is illegal under both federal and state law. Most states define trafficking in a way that is similar to the federal definition.
The most serious penalties (which may include a life sentence) are available when the trafficking involves a "commercial quantity." The specific quantity depends on the drug. The intent of the law is to impose "commercial quantity" penalties upon drug dealers who are running a large operation. For example, a "commercial quantity" of cocaine is more than 2 kilograms.
A person who traffics a "marketable quantity" of a controlled drug is subject to a maximum sentence of 25 years. If a "marketable quantity" of a controlled drug is supplied to a child with the intent that the child will traffic the drugs, the maximum penalty is a life sentence. Again, the amount that is considered a "marketable quantity" depends upon the drug. For example, a "marketable quantity" of cocaine is more than 2 grams.
Trafficking any lesser quantity (a "trafficable quantity") of a controlled drug is punishable by a maximum sentence of 10 years. If the drug was trafficked to a child, however, the maximum sentence is 15 years. If a trafficable quantity of drugs are supplied to a child with the intent that the child will traffic the drugs, the maximum penalty is 25 years.
States tend to follow the same or similar division of crimes into commercial, marketable, and trafficable quantities, although they sometimes define those quantities differently than federal law. A "trafficable" quantity is generally intended to reflect an amount that is too large for personal use, creating a presumption that the drug is possessed with the intent to sell it. That amount may vary from state to state. For instance, 250 grams of cannabis (marijuana) is defined as a trafficable amount in Victoria, while the trafficable amount of cannabis in New South Wales is 300 grams.
Potential trafficking penalties vary from state to state. They include the potential for incarceration as well as some form of community supervision. Some states (such as New South Wales) have established a "drug court" that supervises eligible offenders as they receive treatment in lieu of harsher sentences. Drug court is usually available only for less serious crimes, such as possession, but in some cases it might be available to persons charged with minor trafficking offences.
Division 305 of the Criminal Code Act 1995 prohibits manufacturing a controlled drug. Manufacturing a drug includes:
The federal penalties for manufacturing a controlled drug are generally the same as the penalties for trafficking. They depend upon whether the amount manufactured is a commercial quantity or a marketable quantity.
State laws are similar to federal law. They generally penalize manufacturing in the same way they penalize trafficking.
Cannabis (marijuana) is the most common "controlled plant." Cultivating a controlled plant is prohibited by division 303 of the Criminal Code Act 1995. In simple terms, cultivation of a plant means growing it. The term also includes:
Selling a controlled plant is prohibited by division 304 of the Criminal Code Act 1995.
The federal penalties for cultivation of a controlled plant are generally the same as the penalties for selling it. Like federal law, state laws tend to treat cultivation of cannabis in the same way they treat trafficking in cannabis. The penalties vary from state to state.
Possession of a controlled drug without a prescription is illegal under federal and state law.
The possession of a controlled drug without the intent to traffic in the drug is prohibited by division 308 of the Criminal Code Act 1995. Possession is punishable by a maximum sentence of 2 years.
In addition to making possession of a controlled drug illegal, some states (such as Victoria) make it illegal to use a controlled drug without a prescription. Offenders in those states can be punished both for possession and for use of a drug.
In some places, including South Australia, possession of a small amount of cannabis has been decriminalized. In those places, possession is not legal but it is not punished by the criminal justice system. Possession is instead punished by a civil fine.
In most states, a first offense possession of a small amount of marijuana is punished without a jail sentence. In Victoria, possession of less than 50 grams of cannabis is punishable by a fine. In some places, however, a jail sentence might be imposed for conviction of a first marijuana possession offence.
As a matter of policy, the police in some states (including New South Wales and Victoria) will "caution" someone caught with a small amount of marijuana, particularly if the offender is young. Some states have established diversion programs that allow the case to be resolved outside of the criminal justice system. Whether to "divert" a person who possesses cannabis is usually decided by the police. Queensland is the only state that requires diversion of certain cannabis possession cases.
A jail sentence is often the punishment for the possession of other drugs. Other punishment options include requiring an undertaking, which might include drug treatment.