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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Drug Misuse and Trafficking
Amendment (Hydroponic Cultivation)
Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Drug Misuse and Trafficking Act 1985 No 226 2
4 Amendment of other Acts 2
5 Repeal of Act 2
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 3
Schedule 2 Amendment of other Acts 12
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Drug Misuse and Trafficking
Amendment (Hydroponic Cultivation)
Bill 2006
Act No , 2006
An Act to amend the Drug Misuse and Trafficking Act 1985 to make provision with
respect to prohibiting the indoor cultivation of certain prohibited plants by enhanced
means (such as the hydroponic cultivation of cannabis); and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Drug Misuse and Trafficking Amendment (Hydroponic
Cultivation) Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Drug Misuse and Trafficking Act 1985 No 226
The Drug Misuse and Trafficking Act 1985 is amended as set out in
Schedule 1.
4 Amendment of other Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
Schedule 1 Amendment of Drug Misuse and
Trafficking Act 1985
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
cultivation by enhanced indoor means, in relation to a
prohibited plant, means cultivation of the plant:
(a) that occurs inside a building or structure, and
(b) that involves any one or more of the following:
(i) the nurture of the plant in nutrient-enriched water
(with or without mechanical support),
(ii) the application of an artificial source of light or heat,
(iii) suspending the plant's roots and spraying them with
nutrient solution.
[2] Section 3 (1), definition of "drug premises"
Omit the definition.
[3] Section 3 (1), definition of "prohibited plant"
Omit paragraph (a) of the definition. Insert instead:
(a) a cannabis plant cultivated by enhanced indoor means, or
(a1) a cannabis plant cultivated by any other means, or
[4] Section 3 (1), definition of "prohibited plant"
Omit "paragraph (a)". Insert instead "paragraph (a), (a1)".
[5] Section 23 Offences with respect to prohibited plants
Insert after section 23 (1):
(1A) A person who:
(a) cultivates by enhanced indoor means, or knowingly takes
part in the cultivation by enhanced indoor means of, a
number of prohibited plants which is:
(i) not less than the small quantity applicable to the
prohibited plants, and
(ii) less than the commercial quantity applicable to
those prohibited plants, and
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Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
(b) cultivates, or knowingly takes part in the cultivation of,
those prohibited plants for a commercial purpose,
is guilty of an offence.
(1B) If, on the trial of a person for an offence under subsection (1A),
the jury is not satisfied that the number of prohibited plants
involved is equal to or more than the small quantity applicable to
the prohibited plants, the jury may acquit the person of the
offence charged and find the person guilty of an offence under
subsection (1) (a), and the person is liable to punishment
accordingly.
(1C) If, on the trial of a person for an offence under subsection (1A),
the jury is not satisfied that the person cultivated, or knowingly
took part in the cultivation of, a prohibited plant for a commercial
purpose, the jury may acquit the person of the offence charged
and find the person guilty of an offence under subsection (1) (a),
and the person is liable to punishment accordingly.
[6] Section 23 (3) and (3A)
Omit section 23 (3). Insert instead:
(3) If, on the trial of a person for an offence under subsection (2)
(other than in relation to the cultivation of prohibited plants by
enhanced indoor means), the jury is not satisfied that the number
of prohibited plants involved is equal to or more than the
commercial quantity applicable to the prohibited plants, the jury
may acquit the person of the offence charged and find the person
guilty of an offence under subsection (1), and the person is liable
to punishment accordingly.
(3A) If, on the trial of a person for an offence under subsection (2) in
relation to the cultivation of prohibited plants by enhanced indoor
means, the jury is not satisfied that the number of prohibited
plants involved is equal to or more than the commercial quantity
applicable to the prohibited plants, the jury may acquit the person
of the offence charged and find the person guilty of:
(a) an offence under subsection (1A), if the jury is satisfied
that the person contravened subsection (1A), or
(b) an offence under subsection (1) (a), if the jury is not
satisfied that the person contravened subsection (1A), but
is satisfied that the person contravened subsection (1) (a),
and the person is liable to punishment accordingly.
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Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
[7] Section 23 (6)
Insert after section 23 (5):
(6) In this section and section 23A, cultivating a prohibited plant for
a commercial purpose includes cultivating the plant:
(a) with the intention of selling it or any of its products, or
(b) with the belief that another person intends to sell it or any
of its products.
[8] Section 23A
Insert after section 23:
23A Offences with respect to enhanced indoor cultivation of prohibited
plants in presence of children
(1) A person who:
(a) cultivates, or knowingly takes part in the cultivation of, a
prohibited plant by enhanced indoor means, and
(b) exposes a child to that cultivation process, or to substances
being stored for use in that cultivation process,
is guilty of an offence.
(2) A person who:
(a) cultivates, or knowingly takes part in the cultivation of, a
number of prohibited plants by enhanced indoor means
which is not less than the commercial quantity applicable
to those plants, and
(b) exposes a child to that cultivation process, or to substances
being stored for use in that cultivation process,
is guilty of an offence.
(3) A person who:
(a) cultivates by enhanced indoor means, or knowingly takes
part in the cultivation by enhanced indoor means of, a
number of prohibited plants which is:
(i) not less than the small quantity applicable to the
prohibited plants, and
(ii) less than the commercial quantity applicable to
those prohibited plants, and
(b) cultivates, or knowingly takes part in the cultivation of,
those prohibited plants for a commercial purpose, and
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Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
(c) exposes a child to that cultivation process, or to substances
being stored for use in that cultivation process,
is guilty of an offence.
(4) If, on the trial of a person for an offence under subsection (2), the
jury is not satisfied that the number of prohibited plants involved
is equal to or more than the commercial quantity applicable to the
prohibited plants, the jury may acquit the person of the offence
charged and find the person guilty of:
(a) an offence under subsection (3), if the jury is satisfied that
the person contravened subsection (3), or
(b) an offence under subsection (1), if the jury is not satisfied
that the person contravened subsection (3), but is satisfied
that the person contravened subsection (1),
and the person is liable to punishment accordingly.
(5) If, on the trial of a person for an offence under subsection (3), the
jury is not satisfied that the person cultivated, or knowingly took
part in the cultivation of, a prohibited plant for a commercial
purpose, the jury may acquit the person of the offence charged
and find the person guilty of an offence under subsection (1), and
the person is liable to punishment accordingly.
(6) It is a defence to a prosecution for an offence under subsection
(1), (2) or (3) if the defendant establishes that the exposure of the
child to the prohibited plant cultivation process, or to substances
being stored for use in that process, did not endanger the health
or safety of the child.
(7) If, on the trial of a person for an offence under subsection (1), (2)
or (3), the jury:
(a) is not satisfied that a child was exposed to the cultivation
of a prohibited plant by enhanced indoor means, or to
substances being stored for use in such a cultivation
process, or
(b) is satisfied that the defence referred to in subsection (6) has
been made out,
the jury may acquit the person of the offence charged and find the
person guilty of an offence under section 23 (1) (a), (2) (a) or
(1A), respectively, and the person is liable to punishment
accordingly.
(8) In this section, child means a person who is under the age of 16
years.
Page 6
Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
[9] Sections 30 (1) (a) and 31 (1) (a)
Insert "or 23A (1)" after "23 (1)" wherever occurring.
[10] Sections 30 (1) (e) and 31 (1) (e)
Insert ", 23A (1)" after "23 (1)" wherever occurring.
[11] Section 33 Penalties for offences involving commercial quantities or
cultivation for a commercial purpose
Insert "(1A) or" after "section 23" wherever occurring in section 33 (1) (a) and
(d).
[12] Section 33AD
Insert as section 33AD:
33AD Penalties for offences with respect to enhanced indoor cultivation
of prohibited plants in presence of children
(1) This section applies to the following offences:
(a) an offence under section 23A (1), (2) or (3),
(b) an offence under section 26 of conspiring to commit an
offence referred to in paragraph (a),
(c) an offence under section 27 of aiding, abetting,
counselling, procuring, soliciting or inciting the
commission of an offence referred to in paragraph (a),
(d) an offence under section 28 of conspiring to commit, or of
aiding, abetting, counselling, procuring, soliciting or
inciting the commission of, an offence under a law in force
outside New South Wales which corresponds to section
23A (1), (2) or (3).
(2) Except as provided by sections 30 and 31, the penalty for an
offence under section 23A (1), or an offence referred to in
subsection (1) (b)-(d) that relates to an offence under section 23A
(1), is a fine of 2,400 penalty units or imprisonment for 12 years,
or both.
(3) The penalty for an offence under section 23A (2) or (3), or an
offence referred to in subsection (1) (b)-(d) that relates to an
offence under section 23A (2) or (3), is a fine of 4,200 penalty
units or imprisonment for 18 years, or both.
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Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
(4) Despite subsection (3), if the court is satisfied that an offence
referred to in that subsection involved not less than the large
commercial quantity of the prohibited plant concerned, the
penalty for the offence is a fine of 6,000 penalty units or
imprisonment for 24 years, or both.
(5) In this section:
large commercial quantity, in relation to a prohibited plant,
means the number or amount, if any, specified opposite the plant
in Column 5 of Schedule 1.
[13] Section 36TA
Insert before section 36U:
36TA Definitions
In this Part:
commercial cultivation, in relation to prohibited plants, means:
(a) the cultivation of a number of prohibited plants which is
not less than the commercial quantity applicable to those
plants, or
(b) the cultivation of a number of prohibited plants which is:
(i) not less than the small quantity applicable to those
plants, and
(ii) less than the commercial quantity applicable to
those plants,
where the plants or their products are intended by any
person for sale.
drug premises means any premises that are used for either or both
of the following:
(a) the unlawful supply or manufacture of prohibited drugs,
(b) the unlawful commercial cultivation of prohibited plants
by enhanced indoor means.
[14] Section 36V Possession or presence of prohibited drugs or prohibited
plants on premises
Insert "or a prohibited plant" after "prohibited drug" wherever occurring.
Page 8
Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
[15] Section 36W Evidence that premises are drug premises
Omit "were being used for the unlawful supply or manufacture of any
prohibited drug." from section 36W (1).
Insert instead:
were being used for either or both of the following:
(a) the unlawful supply or manufacture of any prohibited
drug,
(b) the unlawful commercial cultivation by enhanced indoor
means of any prohibited plant.
[16] Section 36W (3)
Insert after section 36W (2):
(3) Without limiting matters to which regard may be had in
determining whether premises involved in the offence were being
used for the commercial cultivation by enhanced indoor means of
any prohibited plant, regard may be had to any or all of the
following:
(a) evidence that a police officer authorised by law to enter the
premises was wilfully prevented from, or obstructed or
delayed in, entering or re-entering those premises or any
part of those premises,
(b) evidence of the external or internal construction of the
premises, including any external or internal door of, or
means of access to, those premises that is found to be likely
to have been fitted with a bolt, bar, chain, or any means or
device for the purpose of preventing, delaying or
obstructing the entry or re-entry into those premises of
such a police officer or any other person, or for giving an
alarm in case of such entry or re-entry,
(c) evidence of a person acting as a lookout to warn persons
on the premises of the approach of police officers or other
persons,
(d) evidence that there was found on those premises
equipment such as:
(i) electric lights of 250 watts or higher, or
(ii) fluorescent lights that combine the red and blue part
of the light spectrum, or
(iii) light units comprising high intensity discharge
lamps, ballasts, lamp mounts and reflectors (also
called ballast boxes), or
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Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985
(iv) growing chambers with spray arm manifolds,
hydro-controls and digital timers,
(e) evidence that there was found on those premises, or in the
possession of a person on the premises, documents or
literature concerned with hydroponic or other enhanced
indoor cultivation methods or with cannabis cultivation or
both,
(f) evidence that there was found on those premises, or in the
possession of a person on the premises, cannabis seeds, cut
cannabis leaf, cannabis plants or plant clones,
(g) evidence that there was found on those premises, or in the
possession of a person on the premises, minerals,
chemicals or nutrients, or their packaging, typically used in
enhanced indoor cultivation of cannabis plants,
(h) evidence that there was abnormally high or low electricity
consumption for those premises in relation to other
premises of that type not used for such cultivation,
(i) evidence of an apparently unauthorised connection to, or
bypass of, the electricity supply to those premises,
(j) evidence that there was found on those premises blacked
out or boarded up windows or condensation on windows,
(k) evidence that there was found on those premises air vents,
fan systems or exhaust fans in unusual places or in unusual
numbers,
(l) evidence that generators were continuously running on
those premises,
(m) evidence that security devices (such as security cameras)
have been installed on those premises,
(n) evidence that draft excluders have been fitted to any
external doors or those premises,
(o) evidence that there was found on those premises any
documents or other records, including any computer
records, that appear to have been kept or used in
connection with the unlawful cultivation by enhanced
indoor means of a prohibited plant,
(p) evidence that there was found on those premises any large
amount of money that is not accounted for by the owner or
occupier of those premises,
Page 10
Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Amendment of Drug Misuse and Trafficking Act 1985 Schedule 1
(q) evidence that there were found on those premises persons
who appeared to be affected by a prohibited drug
manufactured from the prohibited plant concerned,
(r) any other matters as are prescribed by the regulations.
[17] Schedule 1
Omit the matter relating to Cannabis plant. Insert instead:
Cannabis plant cultivated by -- 5 50 50 200 --
enhanced indoor means
Cannabis plant--other -- 5 50 250 1 000 --
Page 11
Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Electricity Supply Act 1995 No 94
Sections 64-70
Omit the maximum penalty wherever occurring.
Insert instead:
Maximum penalty:
(a) in the case of a corporation--2,000 penalty units, or
(b) in any other case--100 penalty units or imprisonment for
2 years (or both).
2.2 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
[1] Section 139 Definitions
Insert in alphabetical order in section 139 (1):
cultivation by enhanced indoor means, in relation to a
prohibited plant, has the same meaning as in the Drug Misuse and
Trafficking Act 1985.
[2] Section 139 (1)
Omit the definition of drug premises. Insert instead:
drug premises means any premises that are used for either or both
of the following:
(a) the unlawful supply or manufacture of prohibited drugs,
(b) the unlawful cultivation of prohibited plants by enhanced
indoor means.
[3] Section 140 Issue of search warrant--suspected drug premises
Insert ", or the unlawful cultivation of prohibited plants by enhanced indoor
means," after "prohibited drug" in section 140 (1).
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Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill 2006
Amendment of other Acts Schedule 2
[4] Section 142 Search and arrest of persons pursuant to search warrant
Insert ", prohibited plant" after "prohibited drug" in section 142 (1) (d).
Page 13
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