Which drugs are illegal?

It is a Commonwealth offence to possess a controlled drug.

Proving possession

There are three elements required to prove possession: knowledge, custody and control.

• Knowledge means that you must know that the substance is a drug or is likely to be a drug and that it is in your custody;

• Custody usually means having the drugs in your physical possession (for example, in a container, luggage package or consignment owned by you). However, custody can also extend to include such places as your house or car; and

• Control means that you have the right to do something with the drugs (for example, keep or use them). If there are drugs in your house but they do not belong to you and you don’t have any control over them, you are not in possession of them.

Knowledge

Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your luggage, the Court will infer you knew what it was.

Knowledge can be based on personal observation or information from another person. In other circumstances it does not have to be firm or absolutely certain. In some cases, awareness that something is highly likely to be a drug, or proof that there was a real and significant chance that a substance was a drug is enough to demonstrate knowledge.

There will be circumstances where, if you don't admit to owning the drugs or knowing about them, possession will be difficult to prove to the court as required by the law.

Do not admit to possessing drugs without speaking to a lawyer!

Control and joint possession

Generally, if you live in a shared house and get caught with drugs in a common area like the kitchen or lounge room, it may be difficult for police to establish exactly who owned and had custody or control of the drugs, unless people make admissions.

The police must prove more than the fact that you knew drugs were there and that you didn't report the drugs or object to them being there. Therefore if you share a house and the police find drugs in non-private parts of the house (say, the kitchen, lounge room or bathroom), it can be difficult to establish who has the sole custody or control of the drugs.

However it is not impossible for police to prove that possession was jointly held.  Possession can be shared between people if there was agreement between them, (for example, say you and your flatmates have a stash that you all have access to). Shared, or joint, possession is generally hard to prove if no one admits to owning the drugs.

Possession without physical custody

In some circumstances it may be possible to find you in possession of a drug even if it was not physically in your custody. For example if you know you have a package of drugs waiting for you in the post office which only you can pick up that will be enough to establish possession because you are the only person who can obtain the drugs.

If you have drugs in a bag or coat pocket which you check into a cloak room outside a club, you can still be found to be in possession, because you would be the only person with knowledge of the drug and the ability to control it when you retrieved your bag or coat. A conviction in these circumstances is possible, but it would be difficult for the prosecution to rule out the possibility that someone else had planted drugs there.

Similarly, if police find drugs under the tarp in your ute tray, or locked in the boot of your car, but you don't have the keys with you at that time, police may not be able to show that you had custody and control.

You can be charged with possession if you hid a drug somewhere and forgot about it. The police do not have to prove you knew exactly where the drugs were for them to be found in your possession.

If you are proved to have hidden or concealed a drug so well that no one else could find it and exercise control over it that will be enough to show you had knowledge, custody and control, even though you weren’t in physical possession when the drugs were found.

Control

Control may be proved if there is evidence that a person had done or intended to do something with a drug. If someone leaves drugs on your balcony or in your car and police see you throwing the drugs away this might be enough evidence that you exercised control over the drugs.

Temporary possession

Possession can be found even if it is momentary or temporary. If you get passed a joint from someone you can be found to be in possession of the joint.

If you are looking after drugs for someone else, you can still be found guilty of possession, because the drugs are in your custody and control. However, if you can prove that the possession was temporary and that you intended to return the drugs to their actual owner, you might not be convicted of possession. This is known as the 'Carey defence'.

If you are charged with a possession offence you will be tried in whichever state or territory the offence occurred in and will be eligible for the same diversionary schemes that are available in those states.

Penalty

Possessing a controlled drug is an offence.

Maximum penalty: $72,000 (400 p.u.) and/or imprisonment for 2 years.[1]

Possessing instructions or equipment with the intention of using them to manufacture or produce controlled drugs is an offence.

Maximum penalty: $252,000 (1,400 p.u.) and/or imprisonment for 7 years.[2]

It is an offence to possess, import, export border controlled drugs or plants from or into Australia, whether or not you intended to sell or supply the drugs or plants for commercial purposes.

Border controlled drugs are certain controlled drugs but the quantities for each level of punishment are lowered, which means that you can import/export less drugs but face higher penalties compared to trafficking drugs within Australia.

Importing will occur when you bring drugs or plants into Australia or if you arrange for drugs or plants to be smuggled into Australia.

Exporting will occur when you take or send drugs or plants to another country.

Imprisonment will almost certainly be imposed if you are convicted of importing drugs or controlled plants given the wish of government to reduce the supply of drugs entering the Australian community. Deterrence is the chief objective of the Commonwealth law.

The Court must look at the quantity of drug involved, the offender’s knowledge about what was being imported, the offender’s role in the importation, and the reward that the offender hoped to gain from participation. Despite these considerations, low level couriers or 'drug mules' will still be subject to stern punishment.

The comparative harm to health that each drug may cause compared to another drug is not taken into account in the sentencing process.

It is also an offence to possess controlled drugs which have been imported into Australia, or could reasonably be suspected of having been imported, unless you can prove that you did not know that the drugs or plants had been unlawfully imported, or that they were not unlawfully imported.

Importing/exporting a commercial quantity of a controlled drug or plant for a commercial purpose or possessing a commercial quantity of an unlawfully imported or suspected unlawfully imported drug:

                Maximum penalty: $1,350,000 (7,500 p.u.) and/or imprisonment for life.[1]

Importing/exporting a marketable quantity of a controlled drug or plant for a commercial purpose or possessing a marketable quantity of an unlawfully imported or suspected unlawfully imported drug:

                Maximum penalty: $900,000 (5,000 p.u) and/or imprisonment for 25 years.[2]

Importing/exporting less than a marketable quantity of a controlled drug or plant for a commercial purpose:

                Maximum penalty: $360,000 (2,000 p.u.) and/or imprisonment for 10 years.[3]

Importing/ exporting a controlled drug or plant or possessing any quantity of a suspected unlawfully imported drug:

                Maximum penalty: $72,000 (400 p.u.) and/or imprisonment for 2 years.[4]

Australian law has a special set of offences to deter and punish people dealing in drugs overseas or on aeroplanes or boats. These offences are called dealings in drugs and include a range of activities associated with the supply, trafficking, manufacture or cultivation of illegal drugs.

The dealing in drugs offences allows the Government to enforce international law as part of the war on drugs.  The specific international law is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which was adopted by the international community in 1988.

Under these particular Commonwealth laws illegal drugs are referred to as narcotic drugs or psychotropic drugs. These drugs are the same substances as the illegal drugs controlled by state and territory laws.

A dealing in drugs includes any of the following activities:[1]

• the cultivation of opium poppy, coca bush or cannabis plant with the intention of producing narcotic drugs;

• the separation of opium, coca leaves, cannabis or cannabis resin from the plant from which they are obtained;

• the manufacture, extraction or preparation of a narcotic drug or psychotropic substance;

• the possession of a narcotic drug or psychotropic substance with the intention of the manufacture, extraction or preparation of another such drug or substance;

• the sale, supply, or possession with the intention of sale or supply, of a narcotic drug or psychotropic substance;

• the importation into Australia, exportation from Australia, or possession with the intention of such importation or exportation, of a narcotic drug or psychotropic substance;

• the manufacture, transport or distribution of any narcotic drug or psychotropic substance or equipment or materials, with the knowledge that the substance, equipment or materials are to be used for the manufacture or cultivation of a narcotic drug or psychotropic substance;

•  organising, managing or financing a dealing in drugs;

• the possession of any narcotic drug or of any equipment or materials, or instructions intending them to be used to manufacture or cultivate a narcotic drug or psychotropic substance.

[1] s 6 Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990

Dealing in drugs offences

You can be charged with dealing in drugs if you take part, conspire to commit or aid or abet any dealing in drugs offence.

It is an offence to deal in drugs in another country overseas where the activity is both illegal in that country and under an Australian law.

It is an offence to deal in drugs in another country with plans to deal in drugs in Australia or on board an Australian flight or ship.

It is an offence to deal in drugs on an Australian flight or Australian ship (whether or not the plane or ship is in Australian airspace or waters).

Penalties

The penalties for dealing in drugs offences depend on what particular offence occurred and which particular drug was involved.

                It is an offence to be involved in the manufacture, extraction or preparation of a narcotic drug or psychotropic substance or the possession of a narcotic drug or psychotropic substance with the intention to manufacture, extraction or preparation of another such drug or substance:

                Maximum penalty: 10 years imprisonment.[2]

                It is an offence to be involved in the sale, supply, or possession of a narcotic drug or psychotropic substance.[3]

                Maximum penalty:

It is an offence to import into Australia, export from Australia, or to possess a narcotic drug or psychotropic substance with the intention of such importation or exportation

                Maximum penalties:

• Where the court finds intention to sell or supply - penalties are the same as those listed above for sale of a narcotic drug or psychotropic substance.

• Where there is no intention to sell - 2 years imprisonment.[1]

For the possession of any narcotic drug or psychotropic substance or any equipment or materials, or instructions intending them to be used to manufacture or cultivate a narcotic drug or psychotropic substance.

                Maximum penalty: 10 years imprisonment.