It is an offence to possess a dangerous drug, unless the dangerous drug has been lawfully prescribed or supplied.
There are three elements relevant to proving possession: knowledge, custody and control:
Knowledge that a drug is in your possession can be inferred from the circumstances. That is, if you have a drug in your pocket or in your room, 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!
In other States and Territories 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.
However it is not impossible for police to prove that possession was jointly held because of the rule that possession is deemed if a person has order or disposition of the drugs under a joint arrangement, where you and your flatmates have a stash that you all have access to. Queensland has deemed possession laws which means that shared drugs can be easily attributed to people who have any form of control of the drugs, even if it is not exclusive.
Custody and deemed possession
In Queensland you can be charged with possession of a drug of dependence if the drug is physically located anywhere on land or premises or place occupied or managed or controlled. This means that you can still be charged and convicted if you didn't have knowledge about the presence of drugs on your premises.
This rule is called 'deemed possession'. It creates a presumption that will mean that if police find any drugs in your property or premises the court will automatically believe the drugs are yours unless you can prove that you didn't know about them.
This means it will be much harder for you to prove to the Court that drugs weren't in your possession if they are in your house or shed or garden, even if they are shared, or belong to someone else.
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.
However, if someone leaves drugs in your house after a party and you know they are there but police cannot prove that you ever did anything or intended to do anything with the drugs, except throw them out, possession might not be proved.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'.
Possession of a drug (for your own personal use and with no intent to sell) can be tried as a summary offence in Queensland.
Maximum penalty: $11,800 (100 p.u.) and/or 3 years imprisonment.[1]
If the police chose to prosecute you on indictment in the District or Supreme Court you will face a maximum penalty of $590,000 (5,000 p.u.) and/or 15 years imprisonment.[2]
If you are caught with larger amounts of drugs you will face much higher penalties.
If you are charged with possession of a dangerous drug in a quantity greater than the 'first quantity' set out in the table below you face a maximum penalty of $590,000 (5000 p.u.) and/or 20-25 years imprisonment depending on the drug and your circumstances.
Possession of more than the 'second quantity' of cocaine, heroin, meth-amphetamine (ice), amphetamine (speed), PMA, PMMA, PCP, LSD or MDMA (ecstasy) is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 25 years imprisonment.
Possession of less than the 'second quantity' cocaine, heroin, meth-amphetamine (ice), amphetamine (speed), PMA, PMMA, PCP, LSD or MDMA (ecstasy) is an offence.
Maximum penalty:
Possession of more than the 'first quantity' of any other dangerous drug is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 20 years imprisonment.
Possession of less than the 'first quantity' of any other dangerous drug is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 15 years imprisonment.
| Possession | First pure quantity (grams) | Second pure quantity (grams) |
| Drug | Maximum penalty: $590,000 (5000 p.u.) and/or 20-25 years imprisonment. | Maximum penalty: $590,000 (5,000 p.u.) and/or 25 years imprisonment. |
| Cannabis | 500gm | - |
| Cannabis plants | 100 plants | - |
| Methadone | 2gm | - |
| DMT | 2gm | - |
| Amphetamine (speed) | 2gm | 200gm |
| 2CB | 2gm | - |
| GHB | 2gm | - |
| Cocaine | 2gm | 200gm |
| Codeine | 10gm | - |
| Methamphetamine (Ice) | 2gm | 200gm |
| MDMA | 2gm | 200gm |
| Meth-Cathinone (meow) | 2gm | - |
| Morphine | 2gm | - |
| Opium | 20gm | - |
| Heroin | 2gm | 200gm |
| LSD | 0.004gm | 0.4gm |
| PCP | 0.5gm | 50gm |
| Psylocibin (Magic Mushroom) | 0.10gm | - |
| PMA & PMMA (Pink Ecstasy) | 2gm | 200gm |
| Tetrahydro-cannabinols | 2gm | - |
[1] s 9; s 13 Drugs Misuse Act 1986
[2] s 9 Drugs Misuse Act 1986
In Queensland illegal drugs are called dangerous drugs and illegal plants are called prohibited plants.
The definition of "dangerous drugs" extends to include substances that are chemical analogues of, or chemically related to, listed dangerous drugs.
This may mean that new synthetic type drugs that are chemically derived from or related to a dangerous drug will also be illegal even if it is not specifically listed in the schedules.
| Dangerous Drugs | Prohibited Plants |
|
Heroin |
Cannabis |
|
Cannabis |
Opium Poppies |
|
THC cannibinols |
Erythroxylon (coca plants) |
|
Cathinone (Mephedrone, MCAT, meow) |
This list does not contain all prohibited plants. The full list of all plants can be found listed in schedule 2 of the Drug Misuse Regulation 1987 under the heading “Dangerous drugs”. |
|
PCE |
http://www.austlii.edu.au/au/legis/qld/consol_reg/dmr1987256/ |
|
PCP |
|
|
LSD |
|
|
Ecstasy/MDMA |
|
|
DMT |
|
|
GHB |
|
|
Methamphetamine (ice/speed) |
|
|
Mescaline |
|
|
Morphine |
|
|
Methadone |
|
|
Ketamine |
|
|
Amphetamine |
|
|
Dexamphetamine |
|
|
Buprenorphine |
|
|
Coca Leaf |
|
|
Cocaine |
|
|
This list does not contain all dangerous drugs. The full list of all drugs can be found listed in schedules 1 & 2 of the Drug Misuse Regulation 1987 under the heading “Dangerous drugs”. |
|
|
http://www.austlii.edu.au/au/legis/qld/consol_reg/dmr1987256/ |
There is no “self-administration law” in Queensland but it is still illegal to administer a dangerous drug to another person or possess equipment used to self-administer. Administration of a dangerous drug is prohibited and punished under the laws of supply - that is, if you help someone else take a drug you are guilty of an offence of supplying. It is illegal to inject another person even if they have asked you to or given you consent.
It is also an offence to administer drugs which you have obtained lawfully, such as prescription drugs like codeine, Valium (diazepam), Dexamphetamine, benzodiazepines, buprenorphine, and methadone without following the doctor's or pharmacist's directions for use. This means that it is illegal to inject methadone, because prescriptions for methadone are based on an oral dose. It is also an offence to ask another person to administer a prohibited drug to you, whether by injection, or oral dose, or any other method.
Charges of self-administration are difficult to prove without someone making an admission combined with some other evidence (for example, evidence of prior drug use or knowledge about drugs). Remember that any statements you make to police form part of the evidence that can be used against you. No conversation with police is ‘off the record’. For more information on your legal rights see the section on general legal information.
If, for example, you meet police on your way home after smoking a joint in the park and they ask you if you have been smoking don't admit to it. This would give police the reasonable suspicion that you are in possession they need to search you. If they find some cannabis on you that might give them grounds to get a warrant to search your house. Admitting that you have used drugs recently can quickly lead to more serious drug charges.
Do not admit to using drugs without speaking to a lawyer!
If you administer a prohibited drug to another person who subsequently dies from an overdose ('OD') you could be charged with manslaughter. Nevertheless if you are using with someone who overdoses you should call an ambulance. Police have guidelines about overdoses to ensure that people who overdose or witness an OD are not discouraged from seeking medical assistance.
Police will not normally attend an overdose unless:
Police guidelines direct police who do attend an overdose to use their discretion not to charge people at the scene or the person who overdoses with administration or other minor drug offences such as possession.
It is an offence to supply a prohibited drug without lawful authority. Supply has a very broad definition and you could be guilty of an offence even if no drugs or money change hands. Supply in Queensland also means to give away or distribute or administer or transport dangerous drugs or prohibited plants.
Supply can include:
If you are caught with drugs in your possession, police are more likely to charge you with supply if they find things like scales, deal bags and cash.
Because sharing a deal or helping someone score is part of drug-using culture, many users act as suppliers from time to time. A charge of supply can even rest on an offer to score on behalf of your mates, or sharing your gear with other people. It doesn’t matter whether or not there is any money involved. There are also a number of other charges that can be made in relation to supply, including participating in supply and attempt or conspiracy to supply.
Penalties for supply in Queensland are serious. In some circumstances you can be charged with aggravated supply and will face more severe penalties.
Aggravated supply occurs if you supply -
Supplying cocaine, heroin, meth-amphetamine (ice), amphetamine (speed), PMA, PMMA, PCP, LSD or MDMA (ecstasy):
Maximum penalty: $590,000 (5,000 p.u.) and/or 20 years imprisonment.[1]
Supplying any other dangerous drug:
Maximum penalty: $590,000 (5,000 p.u.) and/or 15 years imprisonment.[2]
Supply of any other drug (with no intent to make money or a commercial gain) without aggravating circumstances can be tried as a summary offence in Queensland.
Maximum penalty: $11,800 (100 p.u.) and/or 3 years imprisonment.[3]
Trafficking is the offence of selling larger amounts of a dangerous drug as a business.
Trafficking is not defined in Queensland but may be proven when you -
Trafficking in cocaine, heroin, methamphetamine (ice), amphetamine (speed), PMA, PMMA, PCP, LSD or MDMA (ecstasy) is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 25 years imprisonment.[1]
Trafficking in any other dangerous drug is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 20 years imprisonment.[2]
If you are sentenced to a term of imprisonment for trafficking, the court must order that you are not released on parole unless you serve 80% of your sentence.[3]
Recieving property or proceeds from unlawful supply or trafficking of dangerous drugs
In Queensland it is illegal to knowingly have possession or receive property or proceeds that have come from the unlawful supply or trafficking of dangerous drugs.
This means that if you keep money or goods given to you which you know come from selling drugs you are committing an offence.
The property can be anything from money, to cars, to personal items, to houses even if those goods have been exchanged or changed hands by a process of 'money laundering'. The reason that you have possession is not relevant.
Receiving property or proceeds from unlawful supply or trafficking of dangerous drugs is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 20 years imprisonment.[4]
It is an offence to be involved in the production of dangerous drugs. With a charge of production you must be shown to be in possession of the equipment (drugs, plants and so on) involved.
Production has a wide meaning in Queensland and includes any act of:
Cultivation will likely include any act of
Other actions like watering the plant or fertilising it will likely be considered cultivation.
If you are charged with production, manufacture or cultivation of a dangerous drug in a quantity greater than the quantity set out in the table below you face a maximum penalty of $590,000 (5,000 p.u.) and/or 20-25 years imprisonment depending on the drug and your circumstances.[1]
Production, manufacture or cultivation of more than the 'second quantity' of cocaine, heroin, meth-amphetamine (ice), amphetamine (speed), PMA, PMMA, PCP, LSD or MDMA (ecstasy) is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 25 years imprisonment[1]
Production, manufacture or cultivation of less than the 'second quantity' of cocaine, heroin, meth-amphetamine (ice), amphetamine (speed), PMA, PMMA, PCP, LSD or MDMA (ecstasy) is an offence.
Maximum penalty:
Production, manufacture or cultivation of more than the 'first quantity' of any other dangerous drug is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 20 years imprisonment.[3]
Production, manufacture or cultivation of less than the 'first quantity' of any other dangerous drug is an offence.
Maximum penalty: $590,000 (5,000 p.u.) and/or 15 years imprisonment.
[1] s 8 Drugs Misuse Act 1986
[2]s 8 Drugs Misuse Act 1986
[3] s 8 Drugs Misuse Act 1986
[4] s 8; s 13 Drugs Misuse Act 1986
[1] s 8 Drugs Misuse Act 1986
Selling, supplying, trafficking, manufacturing or cultivating dangerous drugs around children (under 18 years of age) is a much more serious crime and will lead to much higher penalties if you are convicted. The child will not normally be blamed or held responsible for being involved with dangerous drugs or prohibited plants.
Other aggravating circumstances include:[1]
Aggravating circumstances will increase penalties.
Maximum penalty: $590,000 (5,000 p.u.)and/or 25 years-life imprisonment.
In Queensland it is an offence to receive or possess proceeds of crime. This can include any property or goods (houses, cars, weapons, money) that you know to have been obtained through an act of supply or trafficking of drugs.
You can be charged this offence even if you do not receive the property but try to conceal the fact that the property is connected to the proceeds or drug crime or try to sell or give the property away, knowing that the property is connected to drug crime.
Maximum penalty: $590,000 (5,000 p.u.) and/or 20 years imprisonment.[2]
In Queensland the law states that any property connected with a drug offence in any way, whether acquired to use in the offence, or acquired as a result of the offence, or any proceeds of the offence can be seized and forfeited to the state of Queensland.
If you are charged, all your property at the time of the offence or after the offence will be liable to be taken unless you can prove that it did not result from or was not connected to the criminal offence.
If you are charged with an offence of supply, trafficking, manufacturing or cultivation in Queensland and the police can prove you made money or gained property from the result of your illegal activities, the Court can order that everything you own be seized and taken by the Government. This is so that you pay back the value of whatever profit you made from your illegal activity. Police can seize your house, car, personal property, appliances and money, even where the property may have changed form or been 'laundered'.
In Queensland the police operate a minor drug offence scheme that means police must offer you the opportunity to attend a drug diversion program (if you are eligible), instead of charging you and prosecuting you in court.
You are only eligible to be given a diversion if you:
In order to be eligible for a caution and diversion you cannot have been convicted of another drugs offence or a violent crime. You have to admit to possession of the cannabis to be offered a diversion.
Police have to offer you a diversion if you are caught with less than 50 grams of cannabis or paraphernalia. You can only get diverted once.
If you are offered a diversion and agree you must sign an undertaking to complete the diversion program. If you complete the diversion as agreed you will not be convicted and the offence will not appear on your record for the purposes of work or travel.
If you do not complete the diversion you can be charged with contravening a police direction.
Maximum penalty: $ 4,720 (40 p.u.)[4]
The Court can also offer you a diversion, if you plead guilty and sign an undertaking to attend and complete a drug diversion assessment program. If you attend and complete the program the Court must dismiss the minor drug offence charge against you.
If you do not complete the diversion assessment program the charges can be resumed and prosecuted in Court and if convicted, you will face the maxim penalty and have a criminal record.[5]
Information on the diversion program is available at:
https://www.police.qld.gov.au/programs/drugs/pddp/Documents/pdp_offender.pdf
Cannabis is NOT legal in Queensland. It has NOT been decriminalised. If you get caught with cannabis you are still at risk of being taken to court and fined or even imprisoned. You cannot be diverted if you are caught supplying or selling cannabis.
Synthetic drugs are newly developed substances that are designed to mimic or re-produce the effects of illegal drugs and plants. Many well known drugs are also synthetic (which means that the drug is manufactured from chemicals rather than extracted from plants) but the term synthetic drugs has come to mean newly emerging drugs or 'designer' drugs which have come onto the streets but which are not well known or well tested.
Synthetics are marketed as 'legal highs', 'designer drugs', 'herbal highs', 'party pills', or 'social tonics', but often they may not be legal, and may not be safe or tested for human consumption. Often packaging will state that they are 'bath salts', 'research chemicals' or 'plant food'.
Synthetics can have very serious health consequences, because even if you have taken them before, the chemical formula may change from batch to batch and within a batch. If you do overdose or have a bad trip ambulance paramedics or medical practitioners may not know exactly what you have taken or how to treat you.
There are synthetics which mimic the effects of MDMA, LSD and cannabis as well as many others, but these can be much more potent than the drugs they are imitating. Synthetics can come as pills, powders or dried herbs.
The definition of prohibited drug and prohibited plant also includes analogues (substances which have the same chemical structure of drugs and related drugs), which may mean that synthetic type substances which are chemically derived from a illegal drug will also be illegal even if it is not listed.
In recent years police and government have tried to control synthetics because of concerns that they produce the same effects and highs as illegal drugs but can be easily bought from alternative tobacconists, tattoo parlours and adult shops.
Synthetics are also produced and released by manufacturers quickly, without all possible side effects being known or tested. This means that synthetics may be more risky, legally and from a health perspective, than well known illegal drugs because you won't know what you're getting.
New laws governing synthetics outlined below mean that many synthetic substances marketed as 'legal highs' are now actually illegal and can attract the same or similar penalties as the drugs they mimic. It is very hard for the average person to tell which chemicals are in a synthetic substance, which means you might be breaking the law without realising.
|
Cannabis Type Synthetics |
Hallucinogenic Type Synthetics |
|
|
Queensland law operates to extend the definition of dangerous drug to include any synthetic, salt or derivative of a dangerous drug.
The law in Queensland now also defines dangerous drug so as to include:
This means that any substance that you possess intending to use or supply to mimic the high of a banned drug will also be illegal and will carry the same penalties. Any synthetic drug is almost certain to be treated the same as the dangerous drug it mimics.
In addition, Queensland law automatically imports the Standard for the Uniform Scheduling of Medicines and Poisons ('SUSMP') formerly known as the Australian Poisons Standard. The standard is a list of substances that the Australian government has restricted or made illegal for sale or use without authorisation. Any substance (including new synthetic drugs) listed in Schedule 8 of the SUSMP is classified as a controlled drug. Any substance (including new synthetic drugs) listed in Schedule 9 of the SUSMP is classified as a regulated poison.
It is an offence to be in possession of a controlled drug or regulated poison that was not obtained lawfully.
Maximum penalty: $9,440 (80 p.u.)[1]
It is an offence to improperly use a controlled drug.
Maximum penalty: $9,440 (80 p.u.)[2]
Synthetics are legally risky because the government can make them illegal almost overnight. What might have been legal yesterday may actually be illegal today.
Most synthetic drugs which have been on the streets for the last year or two will now be illegal, because the Australian Government and other state and territory Governments have recently cracked down on them after a number of incidents where people have died after taking synthetic drugs.
Other Australian Government laws can temporarily ban the sale or display of substances, without making them illegal.
A police officer may search you, your clothing or property which you have on you and may seize any thing they find, without a warrant, if the police officer has reasonable grounds to suspect that you are holding a prohibited drug or plant or have possession of anything connected to an offence.
Police can search you or your property if:
Reasonable suspicion is a complicated legal concept, and whether police were correct to believe they had a reasonable suspicion is a matter for the court to decide.
The issue is not whether the police officer was correct or right to hold a suspicion leading to a search, but whether the suspicion was reasonably supported by fact.
A reasonable suspicion is an honestly held suspicion or opinion which is based on more than a mere possibility or hunch, but which can be less firm or less supported by evidence than reasonable belief.
This is what the court will consider when determining whether the police suspicion to search you was reasonable.
For example if you are in a place known to be used for dealing drugs, and are known to police as a user and police see you meet another person for a few minutes in an alleyway this might be enough to establish a reasonable suspicion.
The fact that you are a user alone might not be enough to form a reasonable basis for a suspicion that you are in possession of drugs. Police will consider your behaviour, the time of day and location.
If police ask you to roll up your sleeves and see track marks that would not be a sufficient reason to search you. You have a right to refuse police to show them your arms if they haven't told you what offence they suspect you of committing. Police must have more evidence than the fact that you have used drugs in the past.
If the suspicion is proved to be unreasonable in court then the search might be considered to be illegal and any evidence of drug offences such as drugs, large amounts of cash, fits or paraphernalia might not be allowed to prove your guilt.
The court will examine what facts were the basis of the suspicion, and the source of those facts in the light of the whole of the surrounding circumstances.
It is important to remember that even if the search was illegal or the evidence illegally obtained, the court can still allow the evidence to be used, if it is in the public interest, or if the “desirability of admitting the evidence outweighs the undesirability of admitting such evidence”.
When considering the desirability of admitting illegally obtained evidence the court will weigh up several questions including:
If the improperly obtained evidence is necessary for obtaining a conviction for a serious drugs offence the Court will be more likely than not to exercise its discretion to allow the improperly obtained evidence to be used in the case.
General or frisk searches
Police can frisk search you by asking you to remove your jacket and patting you down.
Police conducting a search can ask you to open your mouth or shake out your hair, but cannot force you to open your mouth without an order as this is considered an intimate search.
Strip searches
Police can strip search you if they suspect on reasonable grounds that such a search is necessary and that the circumstances are urgent and serious. If you are asked to strip so they can search you must follow their directions to remove the items of clothing that they request you take off.
Police are not allowed to strip search you in public, unless the circumstances are so urgent that this is not reasonably possible. Police must make the search as private as the circumstances allow. They are not allowed to touch you during a strip search but can ask you to spread your legs and bend over to allow visual examination. A search can only be conducted by an officer of the same sex as you, unless the circumstances are urgent or serious.
Police must respect your privacy and dignity as much as possible while conducting a strip search.
This means that they must ask for your co-operation and tell you which pieces of clothing you need to remove and why.
The search must be conducted in the least invasive manner practicable in all the circumstances. It must be done as privately and quickly as possible.
Police should let you dress as soon as the search is over, and if they take any clothing they should give you some suitable clothing to wear as a replacement.
Forensic searches
Police are not normally allowed to conduct forensic procedures (often thought of as internal or cavity searches) without getting a warrant from a Magistrate or obtaining your informed consent, although there are some exceptions where the police wish to undertake less invasive sample taking, such as taking your fingerprints.
Children under 14 years of age cannot consent but their parents can. Children over 14 but under 18 can consent but should be given the opportunity to speak to a support person before consenting to a forensic search. If they want a support person to be present during the search the police must allow that person to observe the search.
Forensic procedures are actually a category of procedures that are normally performed on suspects (such as in sexual assault cases) after arrest.
The procedures can include taking DNA samples, genital swabs or internal searches. Forensic procedures are divided into non-intimate and intimate procedures. The law on forensic procedures is very complicated, but police would not normally need to perform a forensic search on you for a drug offence, unless they believed you had swallowed a bag of drugs for trafficking.
Non-intimate procedures can often be performed by a police officer who has the rank of a Sergeant or higher. Any intimate forensic procedure must be performed by a medical practitioner. The medical practitioner can request help from police to carry out the search.
Intimate forensic procedures include:
Non-intimate procedures include:
Police must make sure that you give informed consent, which means that you must understand the how the search will be carried out, and the consequences of the search. Police cannot ask you to consent if you are under the influence of drugs or alcohol.
Don't give consent to a forensic procedure without speaking to a lawyer!
Police can also stop your vehicle or search your vehicle, without a warrant if they suspect on reasonable grounds, that you have possession of a drug or other item (like paraphernalia, stolen property or weapons) associated with an offence. An example of reasonable grounds to search your car would be if you are stopped at a random breath test and your car smelt of cannabis, or if you are stopped because you ran a red light and police see you put something in the glove box while they approach your car.
Police cannot normally enter your house without a warrant unless:
A reasonable belief must be based on stronger evidence than a reasonable suspicion. For example if police hear yelling and screaming and smashing glass from inside a house, and have already been called by neighbours then they would be able to form a belief that someone was at risk of violence and would be lawfully entitled to enter the house using reasonable force as necessary.
It is an offence for a person who is the occupier, or who is the manager, or who has control of a premises, to permit that premises to be used for the commission of a drug offence. This means that if you live in a flat and let your housemate grow cannabis plants in the laundry you could be charged with an offence.
It is not necessary for the police to show that the person had any involvement in the offence, other than allowing the premises to be used for the offence, and having knowledge that the premises was being used for the offence. The person does not need to be benefiting from the commission of the offence.
Examples of this offence are:
Maximum penalty: $590,000 (5,000 p.u.) and/or 15 years imprisonment.[1]
In Queensland, police use sniffer dogs to carry out both general ('random') drug detection and to assist with searches of your person or property.
General ('random') drug detection
General drug detection occurs where a dog is used to conduct 'random' drug detection. In this case if police are conducting general drug detection and the sniffer dog indicates you, by sitting down next to you, this will be enough for police to form a reasonable suspicion that you are in possession of a dangerous drug and they can then search you.
Assisting with searches
Sniffer dogs can be further used to help search you, or your property or vehicle after police have formed a reasonable suspicion that you are in possession of a drug.
Is general drug detection a search?
General 'random' sniffer dog drug detection is not considered to be a search. This is because the sniffing is done passively and is not a physical intrusion into a person's privacy or property. For example, a sniffer dog that wanders past a suitcase with cannabis inside is not searching the suitcase. Police who ask a bus driver to pull over and let them put a dog in the luggage compartment are not conducting a search.
However, if the dog touches you before it sits down, or if the dog stays in contact with you or digs its nose into your pockets or forcefully bumps and nudges into you, this may be considered to be an assault.
If there has been an assault before reasonable suspicion that you possessed drugs was formed in the minds of the police you may be able to challenge in court any evidence (drugs) that the police find on you.
In a NSW case a sniffer dog was bunting and ferreting and nudging a man around his groin before it sat down. In this case the evidence of drugs found after the police searched the man was found to be inadmissible in court and the man's conviction was overturned.
This means that when the police use sniffer dogs to carry out random general drug detection they must keep the dog under control and must take all reasonable steps to prevent the dog from touching you.
You should try to avoid touching or patting a drug detection dog as this may be considered to be obstructing or hindering police.
Where can police use sniffer dogs?
Sniffer dogs can only be used for random drug detection of people entering, leaving or being in the following places:
Sniffer dogs can also be used on any property in such places. So, if you have some drugs in a bag in the cloakroom of a club, the sniffer dogs can sniff your bag and then police can search you.
If you are approached and sniffed by a dog, don't panic and run, because this will also give police reasonable grounds to detain you and search you.
Sniffer dogs may not always be accurate, so even if you are not holding any drugs co-operate with the police while they search you. You can ask for their name, rank and station. Ask why you are being searched. If you are asked to give your name, ask if you have to tell them. If they say no, don't, because those details can be entered into their database. If they say yes, tell them and seek legal advice to make a complaint.
If police do find drugs in your possession you will have to tell them your name and address, but nothing more than that. You have a right to silence. If you do speak to the officer it is always good advice to be polite and calm – if you only have a small amount of drugs they might let you off with a caution. If you swear at the police or resist them you can be arrested and charged with additional offences.
[1] s 11 Drug Misuse Act 1986
The law imposes strict requirements that drivers are fit to drive whenever they get into the car.
Driving while being under the influence of drugs and alcohol is an offence, regardless of whether the drug was legally prescribed or not. In addition driving while you have a certain concentration of alcohol in your breath or blood (Blood Alcohol Concentration - BAC) or certain prohibited dangerous drugs in your oral fluid or blood is an offence.
Driving also includes attempting to drive a vehicle or attempting to put a vehicle in motion, or if you are in charge of a vehicle on a road, or in a road related area.
This means you can be charged if you:
You can even be charged for sleeping in any of the other car seats while under the influence.
All drivers have a general responsibility to report any mental or physical incapacity that is likely to adversely affect the driver's ability to drive safely. This includes a drug or substance dependency. A driver with an impairment must report as soon as practicable after becoming aware of the impairment or when applying for a renewal or grant of license.
It is an offence to fail to notify of a new or aggravated mental or physical incapacity that is likely to adversely affect your ability to drive safely.
Maximum penalty: $7,080 (60 p.u.).[1]
It is a defence to this charge if you can prove that you were unaware of the mental or physical incapacity or the affect it could have on your ability to drive safely.
If you have an illness, injury or incapacity you are not automatically banned from driving. Depending on the nature and circumstances of your impairment you could be granted a conditional licence or even an unrestricted licence once you have been assessed by a health practitioner.
For example, if you are stabilised on methadone or buprenorphine for opioid dependency you may not have a higher risk of a crash, providing the dose has been stabilised over some weeks and you are not abusing other impairing drugs.
If you are driving, police in Queensland have the power to request to see your drivers licence and to ask your name and address.
It is an offence to refuse to provide your licence or to state your name and address if requested.
Maximum penalty: $7,080 (60 p.u.).[2]
For mid range and high range drink driving offences your licence will be suspended by police on the spot. Courts will then impose a longer period of disqualification if you are convicted. They will normally impose the default period automatically, but can reduce or lengthen this period. The Court cannot reduce the period of disqualification any less than the minimum period set by law.
If you are convicted of drink or drug driving, you will have to undergo a drink and drug driving awareness course before you can get your licence back.
The Court must also impose an Interlock condition on your license if you are convicted of a high range (>0.15g BAC) drink driving offence; driving under the influence; failing to provide a breath or blood sample for testing; or for two or more drink driving offences within 5 years.
An Interlock is a breath testing immobiliser device that is fitted to your car and prevents you from starting the car unless it tests the driver as having no alcohol in his or her breath. If you are subject to an interlock license condition you will have to have an interlock for 12 months in addition to your disqualification period. You will have to pay for the Interlock to be fitted to and removed from your vehicle. If you choose not to have an interlock fitted to your car you will be subject to an additional 2 year disqualification period.
For more information on Queensland’s interlock scheme see: https://www.qld.gov.au/transport/safety/road-safety/drink-driving/penalties/interlocks/
It is an offence to drive under the influence of alcohol or any other drug, where your ability to control the vehicle is impaired.
This means that it is illegal to drive on prescription medications such as codeine, Valium (diazepam), benzodiazepines, buprenorphine, and methadone if your ability to drive properly is impaired as a result of your being under the influence.
There is no defence to this charge that you were under the influence of legal prescription medication.
Police can test you for presence of drugs and alcohol by requiring you to take a drug screening test which can test for all drugs by analysing breath, urine or blood samples. While police process the tests and await confirmation, you may be arrested and taken to a police station to be charged and re-tested.
Police will be more likely to make you take a drug-screening test if you were involved in an accident or if the police have reasonable grounds to believe that you were driving culpably, dangerously or recklessly. They will almost certainly test you if you crash.
Driving under the influence of alcohol or any other drug where your ability to have proper control of the vehicle is impaired is an offence.
If a breath, urine or blood test shows you to have a high level concentration of alcohol in your blood (> 0.15g), you will be proved to be under the influence and face the penalties listed below.[3]
Maximum penalty:
It is also an offence to ride a bike or have control of any other vehicle or animal while under the influence of alcohol or any other drug.
Maximum penalty: $4,720 (40 p.u.) or imprisonment for 9 months.[7]
It is an offence to refuse to submit to an oral fluid, breath or blood test.
Maximum penalty: $4,720 (40 p.u.) or imprisonment for 3 months.[8]
As well as random breath testing for alcohol, police in Queensland now have the power to carry out roadside drug testing on any driver. This is done by an “oral fluid” test, requiring the driver to lick the test pad of a device. This tests for the presence of THC (cannabis), amphetamine (speed, ice, crystal meth) and MDMA (ecstasy).
If a positive sample is detected, you will be required to provide a second sample that will be run through another oral screening device. If a second positive test is found, a sample of your saliva will be taken and sent to a laboratory for confirmation. You will not usually be charged at this stage, although you may be prohibited from driving for 24 hours.
The oral fluid test will not detect other prescription drugs such as codeine, Valium (diazepam), benzodiazepines, buprenorphine or methadone. However, Queensland Police can test for all drugs by requiring a drug screening test which can involve a blood sample being taken and analysed. Police need no reason to make you take a drug-screening test if you were driving on a public road.
Police can make you take a drug-screening test if they believe on reasonable grounds that you were under the influence of drugs or alcohol while in charge of a vehicle. If the drug-screening test shows that you have prescription drugs in your system you can only be charged if they impaired your driving so that you could not properly control your vehicle. Police will be more likely to make you take a drug-screening test if you were involved in an accident or if the police have reasonable grounds to believe that you were driving erratically, dangerously or recklessly.
It is an offence to drive with a “relevant drug” (cannabis, speed or ecstasy) present in your saliva, blood or urine.
Maximum penalty: $1,652 (14 p.u.) or 3 months imprisonment with mandatory minimum disqualification for at least 6 months.[9]
It is an offence to refuse to submit to an oral fluid test.
Maximum penalty: $4,720 (40 p.u.) or 3 months imprisonment.[10]
It is an offence to drive with a specified “concentration of alcohol” in your breath, blood or urine. The prescribed concentrations of alcohol are set out in the table below. Your licence will be immediately suspended on the spot if you are found to have a middle or high range concentration of alcohol in your blood.
Maximum penalties:
|
Blood Alcohol Concentration (BAC) Level |
First offence |
Second offence in 5 years |
Third offence in 5 years |
|
No Alcohol: 0.00g – 0.049g |
$1,652 (14 p.u.) or imprisonment for 3 months Min Disqualification: 1 month |
$2,360 (20 p.u.) or imprisonment for 6 months Min Disqualification: 3 months |
$3,304 (28 p.u.) or imprisonment for 9 months Min Disqualification: 6 months |
|
General: 0.05g – 0.099g |
$1,652 (14 p.u.) or imprisonment for 3 months Min Disqualification: 3 months |
$2,360 (20 p.u.) or imprisonment for 6 months Min Disqualification: 3 months |
$3,304 (28 p.u.) or imprisonment for 9 months Min Disqualification: 6 months |
|
Middle: 0.1g – 0.149g |
$2,360 (20 p.u.) or imprisonment for 6 months Min Disqualification: 3 months Max Disqualification: 12 months |
$2,360 (20 p.u.) or imprisonment for 6 months Min Disqualification: 3 months Max Disqualification: 18 months |
$3,304 (28 p.u.)or imprisonment for 9 months Min Disqualification: 6 months Max Disqualification: 18 months |
|
High: 0.15g or more |
Deemed to be under influence - $3,304 (28 p.u.) or imprisonment for 9 months. Min Disqualification: 6 months |
Deemed to be under influence - $7,080 (60 p.u.)or imprisonment for 12 months Min Disqualification: 12 months |
Deemed to be under influence - $7,080 (60 p.u.) or imprisonment for 18 months Will be sentenced to serve an actual term of imprisonment Min Disqualification: 2 years |
It is an offence to refuse to submit to a breath test.
Maximum penalty: $4,720 (40 p.u.) or 3 months imprisonment.[11]
[1] Reg 51 Transport Operations (Road Use Management—Driver Licensing) Regulation 2010
[2] s 48 Transport Operations (Road Use Management) Act 1995
[3] s 79(3) Transport Operations (Road Use Management) Act 1995
[4] s 79(1) Transport Operations (Road Use Management) Act 1995
[5] s 79(1A) Transport Operations (Road Use Management) Act 1995
[6] s 79(1C) Transport Operations (Road Use Management) Act 1995
[7] s 79(7) Transport Operations (Road Use Management) Act 1995
[8] s 80 (5A) Transport Operations (Road Use Management) Act 1995
[9] s 79(2AA) Transport Operations (Road Use Management) Act 1995
[10] s 80 (5A) Transport Operations (Road Use Management) Act 1995
[11] s 80 (5A) Transport Operations (Road Use Management) Act 1995
It is legal to possess fits in Queensland however it is a requirement under Queensland law that you also have in your possession a suitable container for disposal of your fits. Police have been known to stop and fine NSP clients on occasion for not carrying on their person a suitable container for their injecting equipment. As such please ensure that you have such a container on your person if carrying injecting equipment; readily available through your NSP (refer below under "Disposal of fits).
Although it is legal to receive a fit from an authorised needle & syringe program (NSP), it is illegal to pass it on to someone else. It is also illegal to bring a syringe into a prison, even if you don’t intend to give it to a prisoner and even if you leave it in a locker while you are visiting.
The police are unlikely to charge you with possession of drugs on the basis of minute quantities of drugs present in used fits.
If you are concerned about used fits and trace elements you can flush them with water immediately after use but the best approach is to dispose of them in a disposal container and return them to a needle & syringe program.
Possession of other equipment and paraphernalia such as pipes or bongs that have been used for taking a prohibited drug is an offence. This does not include hypodermic needles or syringes but will include other equipment used to inject (e.g., a belt, spoons, swabs).
Maximum penalty: $11,800 (100 p.u.) and/or imprisonment for 2 years.[1]
It is an offence to sell, supply or display a water pipe, bong, ice pipe or crack pipe. Bongs are legal to possess if you use them only to smoke tobacco, not cannabis.
Maximum penalty: $11,800 (100 p.u.) and/or imprisonment for 2 years.
It is an offence to fail to take all reasonable care and precautions to prevent someone being harmed by a syringe or needle even if it hasn't been used. If you leave syringes lying around your workplace where other people might get a needle stick injury, you are committing an offence.
Maximum penalty: $11,800 (100 p.u.) and/or imprisonment for 2 years.[2]
You must dispose of needles and syringes in proper hard sided needle and syringe disposal boxes which are commonly found in public toilets. You can also give a used fit or syringe to an authorised needle & syringe program, a pharmacist or medical practitioner to dispose for you. It is an offence to dispose of a used fit any other way such as by putting it in household rubbish.
Maximum penalty: $11,800 (100 p.u.) and/or imprisonment for 2 years.[3]
It is not an offence to engage in sex work in a licensed brothel. Any person is able to apply for a license to the Prostitution Licensing Authority provided they do not have an interest in any other brothel and have not committed any relevant offences such as violence or sexual offences.
A manager will also need to apply for an approved manager’s certificate, whilst planning permissions in the form of a development application will also be required. A brothel is not able to have more than 13 staff at any one time. All acts of prostitution must occur on the licensed premises and the licensee or approved manager must be present at all times the business is operating.
Maximum penalty: $23,600 (200 p.u.) or 5 years imprisonment.[1]
It is not an offence to work in a strip club that has the requisite permits.
It is a serious offence to be engaged in the provision of sexual services as worker or client where there are two or more sex workers in an unlicensed brothel. Sex workers doing split shifts from the same unlicensed premises can be charged, as can workers who are doing call-outs away from any licensed premise.
The Magistrate’s Court can declare a brothel which is not a licensed but which is reasonably suspected of being used for sex work a “prohibited brothel”. A person who is found in, entering or leaving a prohibited brothel is guilty of an offence.
Maximum penalty: $7080 (60 p.u.) or imprisonment for 1 year.[2]
A person who continues to operate a sexual services business without a license or in a prohibited brothel commits an offence. Illegal conduct covered by this offence includes:
Maximum penalty: 3 years imprisonment.
It is an offence for workers or clients to engage in sexual acts without using condoms or dams. Police can pose as clients and ask for unprotected sex in order to catch offenders.
Maximum penalty: $11,800 (100 p.u.).[3]
The owner or operator of a brothel is not permitted to discourage the use of condoms.
Maximum penalty: $14,160 (120 p.u.)[4]
It is an offence for the owner or operator of a brothel to allow a sex worker to provide sexual services while infected with an STI (including HEP B, and HEP C, but not HIV).
If a sex worker is proved to have engaged in providing sexual services while infected with an STI, the brothel owner or operator will be presumed to know the sex worker was infected unless the sex worker provided a certificate of medical examination every 3 months, showing them to be free of any STI.
Maximum penalty: $14,160 (120 p.u.)[5]
It is an offence to for a sex worker to provide sexual services at a licensed brothel whilst infected with a sexually transmissible infection.
If a sex worker is proved to have engaged in providing sexual services while infected with an STI, the sex worker will be presumed to know he or she was infected unless the sex worker can demonstrate a certificate of medical examination every 3 months, showing them to be free of any STI.
Maximum penalty: $11,800 (100 p.u.).[6]
It is an offence for either the brothel owner or operator or sex worker to present medical examinations tests to a client as evidence that the sex worker is not infected.
Maximum Penalty: $4720 (40 p.u.).[7]
Serious penalties apply where a child or person of impaired mind is permitted to be on premises where 2 or more sex workers are engaged in sex work.
It is an offence to permit a young person or person with impaired mind to be on site in a brothel.
Maximum penalty: 14 years imprisonment.
Escort agencies are illegal in Queensland. It is also illegal for a brothel manager to provide sexual services at a place other than the licensed brothel.
A single sex worker can work alone on outcalls, but where two or more persons are involved with the business, serious penalties can apply (see Brothel Work section). A single sex worker can have a licensed security guard on site, and can employ a driver but not a receptionist.
Restrictions apply to advertising and nuisance offences may apply where prostitution causes unreasonable annoyance or disruption to the privacy of others.
It is an offence to publicly solicit for prostitution. To ‘solicit’ is to offer to provide or accept prostitution. Public soliciting for prostitution involves soliciting a person in a public place, within view or hearing of public place and loitering in or within view of a public place. This offence applies equally to clients and workers.
Maximum penalty:
for a first offence: $1,770 (15 p.u.)
for a second offence: $2,950 (25 p.u.)
for subsequent offences: $3,540 (30 p.u.) or 6 months imprisonment. [8]
As an employer a licensee of a brothel is required by common law and statutory law to take all reasonable steps to provide a safe work environment. Worker’s compensation or other compensation may be available where an injury is sustained in the workplace in the course of employment.
In addition to other criminal laws, which prohibit violence and duress, specific laws, are in place to prevent sex workers from being compelled to become or remain a sex worker. An individual can be charged with an offence for:
• causing or threatening injury to the sex worker or anyone else;
• causing or threatening damage to property of the sex worker or anyone else;
• intimidating or harassing the sex worker or anyone else;
• making a false representation or using any false pretence or other fraudulent means.
Maximum penalty: $25,960 (220 p.u.) or 7 years imprisonment.[9]
Legal support is generally recommended whenever victims of crime are pursuing remedies, whether these involve applications for compensation or following up to ensure an investigation is occurring. Making a report to police as soon as possible regarding the incident is crucial.
It is not an offence to engage in sex work in a licensed brothel. Any person is able to apply for a license to the Prostitution Licensing Authority provided they do not have an interest in any other brothel and have not committed any relevant offences such as violence or sexual offences.
A manager will also need to apply for an approved manager’s certificate, whilst planning permissions in the form of a development application will also be required. A brothel is not able to have more than 13 staff at any one time. All acts of prostitution must occur on the licensed premises and the licensee or approved manager must be present at all times the business is operating.
Maximum penalty: $23,600 (200 p.u.) or 5 years imprisonment.[1]
It is not an offence to work in a strip club that has the requisite permits.
It is a serious offence to be engaged in the provision of sexual services as worker or client where there are two or more sex workers in an unlicensed brothel. Sex workers doing split shifts from the same unlicensed premises can be charged, as can workers who are doing call-outs away from any licensed premise.
The Magistrate’s Court can declare a brothel which is not a licensed but which is reasonably suspected of being used for sex work a “prohibited brothel”. A person who is found in, entering or leaving a prohibited brothel is guilty of an offence.
Maximum penalty: $7080 (60 p.u.) or imprisonment for 1 year.[2]
A person who continues to operate a sexual services business without a license or in a prohibited brothel commits an offence. Illegal conduct covered by this offence includes:
Maximum penalty: 3 years imprisonment.
It is an offence for workers or clients to engage in sexual acts without using condoms or dams. Police can pose as clients and ask for unprotected sex in order to catch offenders.
Maximum penalty: $11,800 (100 p.u.).[3]
The owner or operator of a brothel is not permitted to discourage the use of condoms.
Maximum penalty: $14,160 (120 p.u.)[4]
It is an offence for the owner or operator of a brothel to allow a sex worker to provide sexual services while infected with an STI (including HEP B, and HEP C, but not HIV).
If a sex worker is proved to have engaged in providing sexual services while infected with an STI, the brothel owner or operator will be presumed to know the sex worker was infected unless the sex worker provided a certificate of medical examination every 3 months, showing them to be free of any STI.
Maximum penalty: $14,160 (120 p.u.)[5]
It is an offence to for a sex worker to provide sexual services at a licensed brothel whilst infected with a sexually transmissible infection.
If a sex worker is proved to have engaged in providing sexual services while infected with an STI, the sex worker will be presumed to know he or she was infected unless the sex worker can demonstrate a certificate of medical examination every 3 months, showing them to be free of any STI.
Maximum penalty: $11,800 (100 p.u.).[6]
It is an offence for either the brothel owner or operator or sex worker to present medical examinations tests to a client as evidence that the sex worker is not infected.
Maximum Penalty: $4720 (40 p.u.).[7]
Serious penalties apply where a child or person of impaired mind is permitted to be on premises where 2 or more sex workers are engaged in sex work.
It is an offence to permit a young person or person with impaired mind to be on site in a brothel.
Maximum penalty: 14 years imprisonment.
Escort agencies are illegal in Queensland. It is also illegal for a brothel manager to provide sexual services at a place other than the licensed brothel.
A single sex worker can work alone on outcalls, but where two or more persons are involved with the business, serious penalties can apply (see Brothel Work section). A single sex worker can have a licensed security guard on site, and can employ a driver but not a receptionist.
Restrictions apply to advertising and nuisance offences may apply where prostitution causes unreasonable annoyance or disruption to the privacy of others.
It is an offence to publicly solicit for prostitution. To ‘solicit’ is to offer to provide or accept prostitution. Public soliciting for prostitution involves soliciting a person in a public place, within view or hearing of public place and loitering in or within view of a public place. This offence applies equally to clients and workers.
Maximum penalty:
for a first offence: $1,770 (15 p.u.)
for a second offence: $2,950 (25 p.u.)
for subsequent offences: $3,540 (30 p.u.) or 6 months imprisonment. [8]
As an employer a licensee of a brothel is required by common law and statutory law to take all reasonable steps to provide a safe work environment. Worker’s compensation or other compensation may be available where an injury is sustained in the workplace in the course of employment.
In addition to other criminal laws, which prohibit violence and duress, specific laws, are in place to prevent sex workers from being compelled to become or remain a sex worker. An individual can be charged with an offence for:
• causing or threatening injury to the sex worker or anyone else;
• causing or threatening damage to property of the sex worker or anyone else;
• intimidating or harassing the sex worker or anyone else;
• making a false representation or using any false pretence or other fraudulent means.
Maximum penalty: $25,960 (220 p.u.) or 7 years imprisonment.[9]
Legal support is generally recommended whenever victims of crime are pursuing remedies, whether these involve applications for compensation or following up to ensure an investigation is occurring. Making a report to police as soon as possible regarding the incident is crucial.
In Queensland:
are all notifiable conditions, which means that your doctor, nurse, pathologist or hospital must notify the Government if you are diagnosed with one of these diseases.
It is an offence for the medical practitioner or health officer to fail to notify a diagnosis of a transmissible disease or to refuse to give further information if requested.
Maximum penalty: $2,360 (20 p.u.).[1]
The Government may decide that it is necessary to contact your friends and acquaintances if it becomes apparent that you could have transmitted a disease to them. This is called contact tracing and is lawful if you consent or if the Chief Executive health officer determines that disclosing your personal information will prevent further transmission of the condition or allow potentially infected people to seek medical attention.
It is an offence for a person reasonably suspected of being infected with a notifiable condition to fail to give details including the names of people who might have transmitted the disease to them or to who they might have passed on the disease if asked to by a health officer. It is also an offence to give false or misleading information.
Maximum penalty: $5,900 (50 p.u.)[2]
Your privacy should be respected throughout the contact tracing and notification process. It is an offence for someone to disclose your disease status or other confidential personal information, without lawful authorisation.
Maximum penalty: $5,900 (50 p.u.)[3]
Public health law offences relevant to BBVs and STIs
Queensland has developed a Protocol for management of people living with HIV who place others at risk. This protocol sets out policies for when health officials must take action to report risky behaviours that expose people to infectious or transmissible diseases.
These guidelines set out principles for managing the risk of infection or transmission of disease in a health framework by establishing processes for counselling and treating people with notifiable transmissible diseases.
There is a possibility that if you have a notifiable disease and you are behaving in a way that endangers public health or puts others at risk of infection you could be given a notifiable condition order by the Chief Executive health officer which will require you to be detained in a health service facility.
Health orders, especially orders requiring detention or confinement should only be made as a last resort when other attempts to get the person to change or address their risky behaviour have failed.
A notifiable condition order can last for 24 hours, or until a judge decides to impose a further order.
It is an offence to fail to comply with a notifiable condition order.
Maximum penalty: $23,600 (200p.u.)[4]
The Chief Executive health officer can apply to a magistrate for one of three notifiable condition orders.
Behavioural and detention orders can be extended once only by a magistrate before the first order expires.
The orders provide that reasonable force can be used to ensure compliance with the order.
It is an offence to fail to comply with the requirements of the initial examination, behavioural or detention order.
Maximum penalty: $47,400 (400p.u.)[5]
It is an offence to obstruct a public health official.
Maximum penalty: $11,800 (100 p.u.)[6]
Queensland public health law does not specifically require an HIV-positive person to disclose their HIV status before having sex or engaging in other risk behaviours that could transmit HIV.
However, the law makes it an offence to recklessly place a person at risk of infection with a notifiable condition. This could include failing to tell someone that you are HIV positive or failing to use a condom.
Maximum penalty: $$23,600 (200 p.u.)or imprisonment for 18 months.[7]
It is also an offence to recklessly infect another person with a notifiable condition, where the condition is actually transmitted to another person.
Maximum penalty: $47,400 (400 p.u.)or imprisonment for 2 years.[8]
It is a defence to such a charge if the other person knew of and voluntarily accepted the risk of infection.
Nationally all states and territories are supposed to uphold the important principle that the least restrictive measures of control, treatment and monitoring should be applied first when addressing risky behaviour of individuals who have HIV.
However, if you are suspected of intentionally infecting other people with a disease, health officials are instructed to refer your matter to police to pursue criminal charges.
There have been at least 32 prosecutions for HIV exposure or transmission in Australia. Prosecutions have occurred in nearly every state in Australia. Criminal prosecutions are also becoming more common. If you have a transmissible disease it is your responsibility to take precautions to ensure that you minimise the risk of infecting others.
Intentionally, or recklessly exposing other people to a risk of infection with a disease can be prosecuted as a criminal offence, with serious penalties.
In Queensland you could potentially be charged with causing (either intentionally or recklessly) grievous bodily harm if you are responsible for infecting another person with a notifiable transmissible disease such as HIV.
Intentional infection could be proven where you deliberately, knowingly or willingly set out to infect a person.
Recklessness is the failure to take reasonable precautions to prevent the transmission of a notifiable transmissible disease such as HIV, where you knew there was a risk or should have considered the risk that you could infect someone.
The criminal law provides that a person who intentionally transmits a serious disease (including HIV) to another person is guilty of a crime.
A serious disease is defined as any disease that would, if left untreated -
It is not relevant whether or not treatment is or could have been available.
Maximum penalty: life imprisonment.
Discrimination involves treating someone unfavourably or unfairly because that person has a specific characteristic or attribute.
Discrimination can also include imposing a certain requirement or condition on a person because of a characteristic or attribute where the different treatment is not reasonable.
Grounds for discrimination
Queensland law prohibits discrimination on the grounds of:
You can't complain about discrimination in all areas of life. This is because the Government does not normally regulate private behaviour or relationships between individuals (unless there is threat of violence or other criminal offences involved).
Generally people are free to think and speak what they like about each other. For instance you cannot claim that your family or neighbour discriminates against you because of who you are friends with.
However, discrimination law does prevent discrimination in social or public areas of life, where you might have a reasonable expectation to be treated the same as anyone else, despite the fact that you may be of a different race, or have a different gender identity or are disabled.
In Queensland areas of life where discrimination is unlawful are:
It is important to note that there are a number of exceptions to these general rules. If you feel you have been discriminated against seek legal advice or talk to the Queensland Anti-Discrimination Commission.
Queensland discrimination law also prohibits sexual harassment and vilification.
Vilification is public action or communication that incites hatred, or severe contempt or ridicule of another person or group of people based on their race, sexuality or status as a person living with HIV/AIDs. The Act also prohibits incitement to racial or religious hatred.
This means that it is unlawful for a person to publish extremely offensive or hateful comments about LGBTI people or people living with HIV/AIDs.
It is also illegal under the Act to sexually harass another person.
Being discriminated against on the basis of ‘disability’ includes being discriminated against on the ground that you are infected with a specific disease including Hepatitis C or HIV/AIDS.
It is not clear whether having a 'drug dependency' can be considered a ground for discrimination.
Generally drug addiction will not count as a disability. Temporary intoxication from drug use is not a disability.
There have been a number of court cases that have considered that a dependency on methadone or buprenorphine, could in certain circumstances be considered a disability.
In these cases former heroin addicts had been stabilised on methadone or buprenorphine pharmacotherapy and were being subjected to workplace harassment and unfair treatment because of their history of drug use. The courts held that someone who was living a normal, functional life with the help of legally prescribed methadone or buprenorphine could still be suffering from the disability of methadone or buprenorphine dependence, because of the severity and disabling nature of withdrawals if they were not able to maintain their treatment regime.
These cases established that discrimination of people on the basis that they were on a pharmacotherapy program could be disability discrimination and would be unlawful.
There is also legal protection against discrimination for people with disabilities under the Federal Disability Discrimination Act.
Complaints must be made in writing to the Queensland Anti-Discrimination Commission and other complaints commissions such as the Queensland Health Quality & Complaints Commission within one year of the alleged discriminatory conduct.
The Commission will attempt to investigate your complaint and then conduct a conciliation or negotiation about each side's story and reasons for their actions. If an agreement does not come out of the negotiation, the complaint will be referred to the Queensland Civil and Administrative Tribunal, which has the power to hear and investigate the complaint and then to make legally binging orders.
The Tribunal can order that the complaint be dismisses, or if the complaint is upheld, that compensation or damages are paid, an apology given or an order that the discriminatory behaviour stopped.
Complaints under the Federal Disability Discrimination Act can be made to the Australian Human Rights Commission (AHRC). The AHRC can be reached on
1300 369 711 or at http://www.humanrights.gov.au.
For more information on addressing discrimination please refer to AIVL’s Know Your Rights webpage at http://www.aivl.org.au/knowyourrights.
Drugs Misuse Act 1986 – this legislation sets out offences of possession, supply, trafficking, production, manufacture and cultivation.
Drugs Misuse Regulation 1987 – defines and lists dangerous drugs in Schedules 1 & 2 and sets out quantities relevant for determining maximum penalties an offender faces on conviction. Sets out proper procedures for disposal of fits.
Health (Drug and Poisons) Regulation 1986 – defines controlled drug as a substance listed in schedule 8 of the SUSMP. Defines regulated poison as including a substance listed in schedule 9 of the SUSMP. Sets out penalties for the unauthorised possession, obtaining, use, supply, sale, manufacture or production of controlled drugs or regulated poisons.
Australian Poisons Standard (The Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP)) - is updated regularly to make many synthetic drugs illegal.
Police Powers And Responsibilities Act 2000 - sets out police investigation, search and arrest powers. Authorises the use of sniffer dogs. Part 17 sets out forensic procedure powers.
Transport Operations (Road Use Management) Act 1995 - establishes drink and drug driving offences and sets out penalties and disqualification periods.
Traffic Regulation 1962 – prescribes relevant drugs for the driving with a relevant drug present in oral fluid offence.
Prostitution Act 1999 - regulates sex work in Queensland.
Prostitution Regulation 2000 – sets out periods of testing and lists relevant STIs for the purposes of the Prostitution Act.
Public Health Act 2005 - defines notifiable conditions and procedures and powers for imposing public health orders.
Criminal Code Act 1899 - (Schedule 1) – Chapter 22A defines prostitution and sexual intercourse, and creates offences for unlawful prostitution, procuring children for prostitution, having an interest in or management or control in a place used for prostitution. Chapter 29 sets out offences against the person including unlawfully doing harm or transmitting a disease to another person.
Anti-Discrimination Act 1991 – sets out Queensland discrimination law.