New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Drugs and Poisons Legislation Amendment
(New Psychoactive and Other Substances)
Bill 2013
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are to amend:
(a) the Poisons and Therapeutic Goods Act 1966 (the Poisons Act) to provide for the addition
of a ninth schedule to the Poisons List containing the substances that are in the current
Poisons Standard within the meaning of Part 6-3 of the Therapeutic Goods Act 1989 of the
Commonwealth (Schedule 9 substances), and
(b) the Drug Misuse and Trafficking Act 1985 (the Drug Misuse Act):
(i) to prohibit the possession, manufacture, production or supply (or taking part in the
manufacture, production or supply) of Schedule 9 substances other than prohibited
drugs unless authorised under the Poisons Act, and
(ii) to prohibit the manufacture (or the knowingly taking part in the manufacture) of a
psychoactive substance for human consumption or supply of such a substance, and
(iii) to prohibit the publication or display of an advertisement knowing or being reckless
as to whether it promotes the consumption or sale of a substance for its psychoactive
effects and providing information on how or where it may be acquired, and
(iv) to remove the requirement in determining whether a drug is an analogue of a
prohibited drug that the drug have psychotropic properties.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
b2013-113-19.d14
Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 [NSW]
Explanatory note
Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed
by proclamation.
Schedule 1 Amendment of Drug Misuse and Trafficking Act
1985 No 226
Schedule 1 [4] inserts proposed section 25B into the Drug Misuse Act to achieve the object
described in paragraph (b) (i) of the Overview above. Schedule 1 [3] is a consequential
amendment.
Schedule 1 [5] inserts proposed Part 2C (proposed sections 36ZD-36ZG) into the Drug Misuse
Act to achieve the objects described in paragraph (b) (ii) and (iii) of the Overview above.
Proposed section 36ZD contains definitions of words and expressions used in the proposed Part.
A psychoactive substance is defined as being any substance (other than a substance to which the
proposed Part does not apply) that, when consumed by a person, has the capacity to induce a
psychoactive effect.
Proposed section 36ZE lists the substances to which the proposed Part does not apply.
Proposed section 36ZF makes it an offence to manufacture or supply a psychoactive substance
knowing that it is being supplied to or acquired for a person primarily for human consumption or
being reckless as to whether it is being supplied or acquired for human consumption.
Proposed section 36ZG makes it an offence to publish or display an advertisement knowing or
being reckless as to whether it promotes the consumption or sale of a substance for its
psychoactive effects and providing information on how or where it may be acquired.
Schedule 1 [6] amends section 40 of the Drug Misuse Act so that if a substance is represented as
being a psychoactive substance for the purpose of supply it will be taken to be a psychoactive
substance.
Schedule 1 [1], [2] and [7] make associated amendments to insert or amend definitions for the
purpose of the proposed Part and to enable regulations to be made exempting persons from the
provisions of the Drug Misuse Act relating to psychoactive substances.
Schedule 1 [8] amends Schedule 1 to the Drug Misuse Act to achieve the object described in
paragraph (b) (iv) of the Overview above.
Schedule 2 Amendment of Poisons and Therapeutic Goods
Act 1966 No 31
Schedule 2 [2]-[4] make the amendments to the Poisons Act described in paragraph (a) of the
Overview above. The amendments incorporate by reference Schedule 9 of the Commonwealth
Standard for the Uniform Scheduling of Medicines and Poisons into the Poisons List. Any new
substances added to the Commonwealth Schedule will automatically be included in the Poisons
ist. It will be an offence under the proposed amendments to the Drug Misuse Act made by
Schedule 1 [4] to sell, supply, manufacture or possess such a substance unless authorised by or
under the Poisons Act.
Schedule 2 [5] inserts proposed section 17D into the Poisons Act to enable the Director-General
of the Ministry of Health to authorise a specified person or class of persons to manufacture, supply
or possess a specified Schedule 9 substance (not being a prohibited drug within the meaning of
the Drug Misuse Act) for medical or scientific research, analytical, teaching or training purposes
or for industrial or commercial purposes.
Schedule 2 [1] and [6] are associated amendments to insert a definition and provide for evidence
in prosecutions that a substance is a Schedule 9 substance.
Page 2
First print
New South Wales
Drugs and Poisons Legislation Amendment
(New Psychoactive and Other Substances)
Bill 2013
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226 3
Schedule 2 Amendment of Poisons and Therapeutic Goods Act 1966 No 31 7
b2013-113-19.d14
New South Wales
Drugs and Poisons Legislation Amendment
(New Psychoactive and Other Substances)
Bill 2013
No , 2013
A Bill for
An Act to amend the Drug Misuse and Trafficking Act 1985 to prohibit the manufacture, supply,
sale and advertising of psychoactive substances and to remove the requirement for analogues of
prohibited drugs to have psychotropic properties; to amend the Poisons and Therapeutic Goods
Act 1966 with respect to the addition of further substances to the Poisons List; and for other
purposes.
Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Drugs and Poisons Legislation Amendment (New Psychoactive and 3
Other Substances) Act 2013. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
Page 2
Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1
1985 No 226 2
[1] Section 3 Definitions 3
Insert in alphabetical order in section 3 (1): 4
psychoactive substance--see section 36ZD. 5
[2] Section 6 Meaning of "take part in" 6
Insert "or psychoactive substance" after "prohibited drug". 7
[3] Section 7 Deemed possession of prohibited drug etc 8
Insert ", Schedule 9 substance (not being a prohibited drug)" after "prohibited drug". 9
[4] Section 25B 10
Insert after section 25A: 11
25B Manufacture, production, possession and supply of certain Schedule 9 12
substances 13
(1) A person who manufactures or produces, or who knowingly takes part in the 14
manufacture or production of, a Schedule 9 substance (not being a prohibited 15
drug within the meaning of this Act) is guilty of an offence. 16
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both. 17
(2) A person who supplies, or who knowingly takes part in the supply of, a 18
Schedule 9 substance (not being a prohibited drug within the meaning of this 19
Act) is guilty of an offence. 20
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both. 21
(3) A person who has in his or her possession a Schedule 9 substance (not being a 22
prohibited drug within the meaning of this Act) is guilty of an offence. 23
Maximum penalty: 20 penalty units or imprisonment for 12 months, or both. 24
(4) Nothing in this section renders unlawful the manufacture, production, 25
possession or supply of a Schedule 9 substance (not being a prohibited drug) 26
by: 27
(a) a person licensed or authorised to do so under the Poisons and 28
Therapeutic Goods Act 1966, or 29
(b) a person in accordance with an authorisation given by the 30
Director-General of the Ministry of Health under section 17D of that 31
Act, 32
or renders unlawful the taking part by any other person in the manufacture, 33
production or supply of such a substance by a person to whom paragraph (a) 34
or (b) applies or the possession of the substance by the other person for those 35
purposes. 36
(5) In this section: 37
Schedule 9 substance means a Schedule 9 substance within the meaning of the 38
Poisons and Therapeutic Goods Act 1966. 39
Page 3
Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
[5] Part 2C 1
Insert after Part 2B: 2
Part 2C Offences involving psychoactive substances 3
36ZD Definitions 4
(1) In this Part: 5
advertisement means: 6
(a) any words, whether written or spoken, or 7
(b) any pictorial representation or design, or 8
(c) any other representation by any means at all. 9
display, in relation to an advertisement, includes cause or permit to be 10
displayed. 11
manufacture, in relation to a psychoactive substance, means to make up, 12
prepare, produce, process (including by extracting or refining), package or 13
label the psychoactive substance. 14
psychoactive effect, in relation to a person who is consuming or has consumed 15
a psychoactive substance, means: 16
(a) stimulation or depression of the central nervous system of the person, 17
resulting in hallucinations or a significant disturbance in, or significant 18
change to, motor function, thinking, behaviour, perception, awareness 19
or mood, or 20
(b) causing a state of dependence, including physical or psychological 21
addiction. 22
psychoactive substance means any substance (other than a substance to which 23
this Part does not apply) that, when consumed by a person, has the capacity to 24
induce a psychoactive effect. 25
publish includes distribute, disseminate, circulate, exhibit and cause or permit 26
to be published. 27
substance includes any plant, fungus or natural organism. 28
tobacco product means tobacco, or a cigarette or cigar, or any other product 29
containing tobacco and designed for human consumption or use. 30
usage instruction, in relation to a psychoactive substance, includes any 31
direction, caution, warning, advice or recommendation in relation to the 32
consumption of the substance. 33
(2) In this Part, a reference to the consumption of a psychoactive substance 34
includes a reference to the ingestion, injection or inhalation of a psychoactive 35
substance, the smoking of a psychoactive substance, the inhalation of fumes 36
caused by the heating or burning of a psychoactive substance and any other 37
means of introducing a psychoactive substance into any part of the body of a 38
person. 39
36ZE Substances to which this Part does not apply 40
(1) This Part does not apply to the following substances: 41
(a) a substance specified in Schedule 1, 42
(b) a precursor within the meaning of section 24A, 43
(c) a poison, restricted substance or drug of addiction within the meaning 44
of the Poisons and Therapeutic Goods Act 1966, 45
Page 4
Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
(d) therapeutic goods included in the Australian Register of Therapeutic 1
Goods maintained under the Therapeutic Goods Act 1989 of the 2
Commonwealth or that are exempted from the operation of Part 3-2 of 3
that Act by regulations made under section 18 of that Act, 4
(e) a food within the meaning of the Food Act 2003, 5
(f) alcohol, 6
(g) a tobacco product, 7
(h) any plant or fungus, or extract from a plant or fungus, that is not, or does 8
not contain, a substance specified in Schedule 1, 9
(i) controlled drugs, controlled plants and controlled precursors within the 10
meaning of Part 9.1 of the Criminal Code set out in the Schedule to the 11
Criminal Code Act 1995 of the Commonwealth, 12
(j) a substance supplied by a health practitioner (within the meaning of the 13
Health Care Complaints Act 1993) in the course of the provision of a 14
health service (within the meaning of that Act), 15
(k) any other substance prescribed by the regulations for the purposes of 16
this section. 17
(2) A reference to a substance in subsection (1) does not include any substance 18
that contains, or has had added to it, any psychoactive substance that is not 19
specified in subsection (1). 20
36ZF Offence of supplying or manufacturing psychoactive substances 21
(1) A person must not manufacture or knowingly take part in the manufacture of 22
a psychoactive substance for supply to another person: 23
(a) knowing that it is being supplied to the person primarily for human 24
consumption or for supply by that person to another person for that 25
purpose, or 26
(b) being reckless as to whether it is being so supplied. 27
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both. 28
(2) A person must not supply a psychoactive substance: 29
(a) knowing that it is being acquired primarily for human consumption, or 30
(b) being reckless as to whether it is being so acquired. 31
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both. 32
(3) A court may be satisfied that a person knowingly or recklessly manufactured 33
or supplied a psychoactive substance despite a usage instruction concerning 34
the substance (given in any manner, way, medium or form) that indicates that 35
it is not a psychoactive substance or is not intended for human consumption. 36
(4) In any proceedings for an offence under this section, the court may have regard 37
to the following in determining whether a person knew or was reckless as to 38
whether a substance was being acquired or supplied primarily for human 39
consumption: 40
(a) any advertising matter published or displayed by the person, or usage 41
instruction concerning the substance given by the person, whether 42
before or after the commencement of this subsection, that indicates that 43
the substance: 44
(i) has or may have a psychoactive effect, or 45
(ii) has or may have a similar effect to a prohibited drug or may be 46
used in a similar way to a prohibited drug, 47
Page 5
Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
(b) whether it would be reasonable in all the circumstances to find that the 1
substance concerned was being manufactured or supplied for a lawful 2
purpose. 3
(5) Subsection (4) does not limit the matters that the court may consider. 4
36ZG Prohibition of advertising of psychoactive substances 5
A person is guilty of an offence if the person publishes or displays in any 6
manner, way, medium or form any advertisement: 7
(a) knowing or being reckless as to whether the advertisement promotes, or 8
apparently promotes, directly or indirectly, the consumption, supply or 9
sale of a substance for its psychoactive effects, and 10
(b) providing information on how or where the psychoactive substance may 11
be acquired. 12
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both. 13
[6] Section 40 Effect of certain representations 14
Insert after section 40 (2): 15
(3) A substance (not being a psychoactive substance) which, for the purpose of its 16
being supplied, is represented (whether verbally, in writing or by conduct) as 17
being a psychoactive substance or a specified psychoactive substance is, for 18
the purposes of this Act and the regulations, to be taken to be a psychoactive 19
substance or the specified psychoactive substance, as the case requires. 20
[7] Section 45 Regulations 21
Omit "or prohibited drugs" from section 45 (2). 22
Insert instead ", prohibited drugs or psychoactive substances". 23
[8] Schedule 1 24
Omit ", being a substance that has psychotropic properties,". 25
Page 6
Drugs and Poisons Legislation Amendment (New Psychoactive and Other Substances) Bill 2013 [NSW]
Schedule 2 Amendment of Poisons and Therapeutic Goods Act 1966 No 31
Schedule 2 Amendment of Poisons and Therapeutic Goods 1
Act 1966 No 31 2
[1] Section 4 Interpretation 3
Insert in alphabetical order in section 4 (1): 4
Schedule 9 substance means any substance specified in Schedule 9 of the 5
Poisons List. 6
[2] Section 8 Poisons List 7
Omit "8 Schedules" from section 8 (2). Insert instead "9 Schedules". 8
[3] Section 8 (2) 9
Insert after the matter relating to Schedule Eight: 10
Schedule Nine 11
Substances which are specified in Schedule 9 of the current Poisons 12
Standard (within the meaning of Part 6-3 of the Commonwealth Act). 13
Note. Substances in Schedule 9 are substances which may be abused or 14
misused, the manufacture, possession, sale or use of which should be 15
prohibited by law except when required for medical or scientific research, or for 16
analytical, teaching or training purposes with the approval of Commonwealth or 17
State or Territory Health Authorities. The Poisons Standard is available in 18
electronic form, free of cost, at www.comlaw.gov.au. 19
[4] Section 8 (7) 20
Omit "the current Poisons Standard (within the meaning of Part 5B". 21
Insert instead "provisions of the current Poisons Standard (within the meaning of Part 6-3". 22
[5] Section 17D 23
Insert after section 17C: 24
17D Authorisation of use etc of Schedule 9 substances for research and similar 25
purposes 26
(1) The Director-General may, by order in writing, authorise a specified person or 27
class of persons to manufacture, possess, use or supply a specified Schedule 9 28
substance (not being a prohibited drug within the meaning of the Drug Misuse 29
and Trafficking Act 1985) for medical or scientific research, analytical, 30
teaching or training purposes or for industrial or commercial purposes. 31
(2) The authorisation may be given unconditionally or subject to conditions. 32
[6] Section 41 Evidence in prosecutions under this Act 33
Insert after section 41 (c): 34
(c1) that it is a Schedule 9 substance, or 35
[7] Section 41 (e) 36
Insert ", (c1)" after "(c)". 37
Page 7
[Index] [Search] [Download] [Related Items] [Help]