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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
(Drug Exhibits) Bill 2016
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are as follows:
(a) to amend the Drug Misuse and Trafficking Act 1985 (the Principal Act) and the Drug
Misuse and Trafficking Regulation 2011 to update and streamline the system for the
retention, analysis and destruction of prohibited plants, prohibited drugs, Schedule 9
substances (that is, substances set out in Schedule 9 of the Poisons List under the Poisons
and Therapeutic Goods Act 1966) and psychoactive substances (relevant substances), and
suspected relevant substances, that are seized or otherwise come into the possession of the
NSW Police Force,
(b) to make other consequential amendments and to enact provisions of a savings and
transitional nature consequential on the enactment of the proposed Act.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be proclaimed.
Schedule 1 Amendment of Drug Misuse and Trafficking Act
1985 No 226
Schedule 1 [1] inserts a definition of analyst. Schedule 1 [9] makes a consequential amendment.
b2014-085.d21
Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Explanatory note
Schedule 1 [3] substitutes the provisions of Part 3A of the Principal Act relating to exhibits with
a new Part 3A containing a new system for dealing with, and destroying, relevant substances that
are in the custody of a member of the NSW Police Force and that a member of the NSW Police
Force knows or suspects to be relevant substances.
The new Part does the following things:
(a) defines expressions used in the new Part,
(b) enables a member of the NSW Police Force to retain a relevant substance for the purpose
of dealing with it under the new Part and the regulations to be made under the new Part,
(c) enables regulations to be made with respect to related matters, including the retention,
weighing, testing and analysis of relevant substances, the recording, handling, storage and
transport and return of relevant substances and evidentiary certificates,
(d) forfeits a relevant substance to the Crown if an order is made for its destruction,
(e) enables the destruction of a relevant substance on the order of a police officer of or above
the rank of superintendent (a qualified police officer), after giving 21 days written notice,
if no person has been charged or is likely to be charged with respect to an offence relating
to the substance,
(f) enables the destruction of prohibited plants on the order of a qualified police officer if a
certificate of identification has been issued and evidence of the plants and other particulars
have been recorded,
(g) enables the destruction of a relevant substance (other than a prohibited plant) on the order
of a qualified police officer, after giving 28 days written notice, if samples have been taken
and a certificate of analysis has been issued for one sample,
(h) enables the destruction of a prohibited drug or suspected prohibited drug on the order of a
qualified police officer, after giving 28 days written notice, if the amount of the drug is less
than the traffickable quantity for the drug,
(i) enables the destruction of a relevant substance, or other substance connected with a
drug-related offence, on the order of a qualified police officer, after giving 28 days written
notice (if destruction is not required earlier for health or safety reasons), if an analyst
certifies that it is required to be destroyed in the interests of health or safety,
(j) enables a qualified police officer to order a relevant substance to be destroyed at any time
if the substance cannot reasonably be securely retained,
(k) enables a defendant or accused person to seek an order from the Local Court that the mass
of a substance in police custody be re-determined before the substance is destroyed,
(l) provides that the particulars as to the nature and quantity or mass of a relevant substance set
out in a court attendance notice are presumed to be true for the purposes of an appeal if the
substance is destroyed pursuant to an order before the appeal is heard,
(m) subject to the provision that provides for the forfeiture of certain substances, enables a
person who is lawfully entitled to a relevant substance to apply to a court for the return of
the substance if it is not destroyed or for the substance to be returned by a member of the
NSW Police Force to the person entitled to it,
(n) re-enacts the provision that enables the Commissioner of Police to order that a seized
relevant substance be retained for use in connection with a controlled operation or an
integrity testing program.
Schedule 1 [4]-[8] update references to Government Departments and officers.
Schedule 1 [10] enables regulations containing savings and transitional provisions to be made
consequent on the enactment of any Acts that amend the Principal Act and also inserts savings and
transitional provisions consequent on the amendments made by the proposed Act.
Page 2
Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Explanatory note
Schedule 2 Amendment of Drug Misuse and Trafficking
Regulation 2011
The Schedule substitutes the provisions of Part 3 of the Drug Misuse and Trafficking Regulation
2011 relating to exhibits with a new Part 3 setting out requirements for analysis of relevant
substances and related matters.
The new Part does the following things:
(a) prescribes interstate analysts as analysts for the purposes of the Principal Act,
(b) requires a relevant substance to be weighed after it first comes into the custody of any
member of the NSW Police Force, or sent to an analyst for that purpose, before a sample of
the substance is first taken for analysis,
(c) requires the member or analyst to provide a certificate as to the initial quantity or mass of
the substance to the defendant or accused person in proceedings relating to the substance,
(d) requires an amount of a relevant substance that is a plant to be given to a person (approved
by the Secretary of the Department of Industry, Skills and Regional Development) for
identification as soon as practicable after it first comes into NSW Police Force custody,
(e) requires an amount of a relevant substance that is not a plant to be retained for samples for
analysis,
(f) if the relevant substance is a Schedule 9 substance or a psychoactive substance or the
amount of a prohibited drug is not less than the traffickable quantity for the substance,
requires a sample to be given to an analyst for analysis as soon as practicable after it first
comes into the custody of the NSW Police Force,
(g) if the amount of a relevant substance that is a prohibited drug is less than the traffickable
quantity for the substance, requires the substance to be given to an analyst for analysis as
soon as practicable after it is known that the identity of the substance will be in dispute in
criminal proceedings,
(h) provides for a defendant or accused person to request a qualified police officer to arrange
an independent analysis of a second sample of a relevant substance not later than 28 days
after a certificate of analysis of a sample is served on the defendant or accused person,
(i) sets out the matters to be determined by an analyst and requires an analyst to provide a
certificate of analysis,
(j) requires information about significant differences in analyses of the same drug exhibit to be
forwarded to the Director of Public Prosecutions,
(k) enables relevant substances to be transported to analysts or plant identifiers by a courier
approved by the Commissioner of Police and exempts couriers acting under the legislation
from certain drug-related offences,
(l) sets out the particulars required to be recorded by officers in relation to relevant substances
and requires particulars of a relevant substance to be entered into the NSW Police Force
exhibits management system when the substance comes into the custody of a member of
the NSW Police Force or when a drug exhibit bag containing a relevant substance is opened
or changes location,
(m) requires a relevant substance to be placed in a sealed and labelled drug exhibit bag when it
first comes into the custody of any member of the NSW Police Force and to be stored in a
locked vault or cabinet with a dual locking mechanism or a facility approved by the
Commissioner of Police,
(n) enables a senior analyst or qualified police officer to authorise the destruction of any part
of a substance given to an analyst for analysis that is not required and any sample for which
a certificate of analysis has been provided,
(o) requires a drug exhibit bag to be inspected before destruction to determine whether it has
been opened or tampered with,
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Explanatory note
(p) requires a relevant substance to be destroyed in the presence of specified persons,
(q) provides for the use of police exhibits management system sheets as evidence of
transactions in court proceedings and for evidentiary certificates as to the mass of
substances,
(r) provides for evidentiary certificates relating to the initial determination of the quantity or
mass of a relevant substance and the continuity of dealings with a particular relevant
substance.
Schedule 3 Consequential amendment of Law Enforcement
(Powers and Responsibilities) Act 2002 No 103
The Schedule amends the Law Enforcement (Powers and Responsibilities) Act 2002 to exclude
relevant substances and certain articles from the provisions of that Act dealing with property that
is in police custody.
Page 4
First print
New South Wales
Drug Misuse and Trafficking Amendment
(Drug Exhibits) Bill 2016
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 Drug Misuse and Trafficking Regulation 2011 11
Schedule 3 Consequential amendment of Law Enforcement (Powers and
Responsibilities) Act 2002 No 103 19
b2014-085.d21
New South Wales
Drug Misuse and Trafficking Amendment
(Drug Exhibits) Bill 2016
No , 2016
A Bill for
An Act to amend the Drug Misuse and Trafficking Act 1985 and the Drug Misuse and Trafficking
Regulation 2011 with respect to dealing with prohibited plants, prohibited drugs and other
substances in police custody; and for other purposes.
Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Drug Misuse and Trafficking Amendment (Drug Exhibits) Act 2016. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
Page 2
Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [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
analyst means any of the following: 5
(a) a person employed by the Government of New South Wales as an 6
analyst for the purposes of this Act (including a person employed as an 7
analyst in the NSW Health Service), 8
(b) a person who is an analyst within the meaning of the Poisons and 9
Therapeutic Goods Act 1966, 10
(c) a person who is, or belongs to a class, prescribed by the regulations for 11
the purposes of this definition. 12
[2] Sections 10 (2) (b1), 23 (4) (c) and 25 (4) (c) 13
Omit "section 39RA" wherever occurring. Insert instead "section 39G". 14
[3] Part 3A 15
Omit the Part. Insert instead: 16
Part 3A Exhibits and testing procedures 17
Division 1 Preliminary 18
39A Application of Part 19
(1) This Part applies to a substance that a member of the NSW Police Force knows 20
or suspects to be any of the following and that is in the custody of a member 21
of the NSW Police Force (whether because it has been seized or for any other 22
reason): 23
(a) a prohibited plant, 24
(b) a prohibited drug, 25
(c) a Schedule 9 substance, 26
(d) a psychoactive substance. 27
(2) For the purposes of this section, a substance is taken to be in the custody of a 28
member of the NSW Police Force if it is in the custody of an analyst for the 29
purposes of this Part or is being transported for any such purpose. 30
39B Interpretation 31
(1) In this Part: 32
destroy means destroy or otherwise dispose of. 33
qualified police officer means a police officer of or above the rank of 34
superintendent. 35
(2) In this Part, a reference to the quantity of a drug is a reference to the quantity 36
of the drug originally in the custody of a member of the NSW Police Force. 37
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
Division 2 Retention and testing of substances 1
39C Retention of substances 2
A member of the NSW Police Force or other person is entitled to retain a 3
substance to which this Part applies for the purpose of dealing with the 4
substance in accordance with this Part and the regulations. 5
39D Regulations relating to testing and other matters 6
The regulations may make provision for or with respect to the following 7
matters: 8
(a) the retention of all or part of a substance to which this Part applies, 9
(b) the weighing, testing and analysis of substances to which this Part 10
applies, 11
(c) the recording, handling, storage, transport and destruction of substances 12
to which this Part applies, 13
(d) the return of substances to which this Part applies to persons lawfully 14
entitled to them, 15
(e) evidentiary certificates, and prima facie evidence, relating to the 16
identity, quantity, mass, testing, analysis, retention, handling, storage 17
and transport of substances for the purposes of this Part. 18
Division 3 Destruction of substances 19
39E Forfeiture of substances for purposes of destruction 20
A substance to which this Part applies is forfeited to the Crown, if it is not 21
otherwise forfeited, if an order is made under this Part or the regulations that 22
the substance is to be destroyed. 23
39F Power to destroy substances 24
(1) A substance to which this Part applies may, subject to any requirements of this 25
Part or the regulations, be destroyed in accordance with an order made under 26
this Part or the regulations. 27
(2) An order must not authorise the destruction of so much of an amount of a 28
substance to which this Part applies that is required by the regulations to be 29
retained. 30
39G Destruction of substance where no likelihood of prosecution 31
(1) A qualified police officer may order in writing that a substance to which this 32
Part applies is to be destroyed if the police officer is satisfied that no person 33
has been charged with an offence with respect to the substance and no person 34
is likely to be charged. 35
(2) The substance (other than a prohibited plant) must not be destroyed earlier 36
than 21 days after the day on which the substance first came into the custody 37
of any member of the NSW Police Force. 38
(3) Before the substance is destroyed, evidence of the substance is to be recorded 39
by photographing or other means and the particulars (if any) prescribed by the 40
regulations are to be recorded. 41
(4) Subsection (3) does not apply to a prohibited drug, or suspected prohibited 42
drug, if the quantity of the drug is less than the traffickable quantity in relation 43
to the drug. 44
Page 4
Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
39H Destruction of prohibited plants after identification 1
A qualified police officer may order in writing that any prohibited plants to 2
which this Part applies are to be destroyed if the police officer is satisfied that: 3
(a) a person of a class prescribed by the regulations for the purposes of this 4
section has issued a certificate identifying the plants as specified 5
prohibited plants, and 6
(b) evidence of the plants has been recorded by photographing or other 7
means and the particulars (if any) prescribed by the regulations have 8
been recorded. 9
39I Destruction of substances where analysis takes place 10
(1) A qualified police officer may order in writing that a substance (other than a 11
prohibited plant) to which this Part applies is to be destroyed if the police 12
officer is satisfied that: 13
(a) any samples of the substance that are required by the regulations to be 14
taken and retained have been taken and retained, and 15
(b) a certificate of analysis of one of the samples has been given to the 16
defendant or accused person in any proceedings relating to the 17
substance. 18
(2) The substance must not be destroyed earlier than 28 days after the day on 19
which written notice by a qualified police officer of the proposed destruction 20
is served on the defendant or accused person in any proceedings for an offence 21
relating to the substance. 22
(3) Before the substance is destroyed, evidence of the substance is to be recorded 23
by photographing or other means and the particulars (if any) prescribed by the 24
regulations are to be recorded. 25
(4) The Local Court may, on application by a member of the NSW Police Force, 26
make an order authorising the destruction of a substance under this section if 27
the Court is satisfied that: 28
(a) written notice of the proposed destruction cannot practicably be served 29
on the defendant or accused person, and 30
(b) an order that the substance be destroyed has been made in accordance 31
with this section. 32
Note. A substance cannot be destroyed under this section while a quantity review 33
application is being determined or before any consequent determination of the mass of 34
the substance has been completed (see section 39M). 35
(5) This section does not apply to a prohibited drug, or suspected prohibited drug, 36
if the quantity of the drug is less than the traffickable quantity in relation to the 37
drug. 38
39J Destruction of drug where less than traffickable quantity 39
(1) A qualified police officer may order in writing that a prohibited drug, or 40
suspected prohibited drug, is to be destroyed if the amount of the drug is less 41
than the traffickable quantity in relation to the drug. 42
(2) The substance must not be destroyed earlier than 28 days after the end of any 43
proceedings for an offence relating to the substance (including the end of any 44
appeal proceedings or, if no appeal is made, the end of the period within which 45
an appeal may be made). 46
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
39K Destruction of dangerous substances or articles 1
(1) A qualified police officer may order in writing that a substance or article 2
(whether or not it consists of or includes a substance to which this Part applies) 3
is to be destroyed if the police officer is satisfied that: 4
(a) the substance or article has been seized and is being retained for the 5
purpose of proceedings for an offence under this Act, and 6
(b) an analyst has certified in writing that, in the interests of health or safety, 7
the substance or article is required to be destroyed, and 8
(c) evidence of the substance or article has been recorded by photographing 9
or other means and, if practicable, the particulars (if any) prescribed by 10
the regulations have been recorded, and 11
(d) if practicable, any samples of any substance that are required by the 12
regulations to be taken and retained have been taken and retained. 13
(2) The substance or article must not be destroyed earlier than 28 days after the 14
day on which written notice by a qualified police officer of the proposed 15
destruction is served on the defendant or accused person in any proceedings 16
for an offence relating to the substance or article. 17
(3) Despite subsection (2), a substance or article may be destroyed at any time if 18
an analyst certifies in writing that, in the interests of health or safety, the 19
substance or article is required to be destroyed before the expiry of the period 20
specified by that subsection. 21
(4) The Local Court may, on application by a member of the NSW Police Force, 22
make an order authorising the destruction of a substance or article under this 23
section if the Court is satisfied that: 24
(a) written notice of the proposed destruction cannot practicably be served 25
on the defendant or accused person, and 26
(b) an order that the substance or article be destroyed has been made in 27
accordance with this section. 28
Note. A substance cannot be destroyed under this section while a quantity review 29
application is being determined or before any consequent determination of the mass of 30
the substance has been completed (see section 39M). 31
39L Immediate destruction where security or other issues 32
A qualified police officer may make an order to destroy a substance in 33
accordance with a provision of this Division at any time if the officer is of the 34
opinion that, because of the amount of the substance or for any other reason, 35
the substance could not reasonably be securely retained for the period of notice 36
that would otherwise be required under that provision. 37
39M Mass review applications 38
(1) This section applies if a certificate as to the initial mass of a substance to which 39
this Part applies is given under the regulations by a member of the NSW Police 40
Force or an analyst. 41
(2) The Local Court may, on the application of a defendant or accused person in 42
any proceedings for an offence relating to the substance, make a quantity 43
review order for a substance. 44
(3) The application must be made not later than 60 days after the certificate is 45
served on the defendant or accused person. 46
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
(4) The Local Court may make a quantity review order only if it is satisfied that: 1
(a) there has been a substantial failure to comply with this Act or the 2
regulations in respect of the substance, or 3
(b) there is a real doubt as to the accuracy of the certificate issued by the 4
member of the NSW Police Force or analyst in respect of the substance. 5
(5) A quantity review order made by the Local Court may require: 6
(a) that a member of the NSW Police Force make all of the substance in the 7
custody of the NSW Police Force available to an employee of the 8
Ministry of Health for determination of the mass of the substance, and 9
(b) that the person to whom the substance is made available determine, or 10
arrange the determination of, the mass of the substance, and 11
(c) that a further certificate under the regulations specifying the mass of the 12
substance so determined be provided to the applicant. 13
(6) If an application is made for a quantity review order for a substance in 14
accordance with this section, the substance, including any sample previously 15
provided for analysis, may be destroyed under another provision of this Part 16
or the regulations only if: 17
(a) the application is withdrawn or refused, or 18
(b) the application is granted and a certificate has been provided to the 19
applicant in accordance with the quantity review order. 20
(7) Subsection (6) does not prevent the destruction of a substance in accordance 21
with this Part if destruction is necessary before that subsection is complied 22
with in the interests of health or safety or because the substance cannot 23
reasonably be securely retained. 24
Division 4 General 25
39N Presumption on appeal 26
If: 27
(a) a person who was legally represented before the Local Court on the trial 28
of an offence with respect to a substance to which this Part applies 29
pleaded guilty to the offence, and 30
(b) an appeal is made against any determination of the Local Court with 31
respect to the offence, and 32
(c) before the appeal is heard, the substance is destroyed after an order for 33
its destruction is made under this Part or the regulations, 34
any particular in the court attendance notice as to the nature, quantity or mass 35
of the substance is, for the purposes of the appeal, presumed to be true. 36
39O Return of substance to lawful owner 37
(1) A court may, on the application of a person who is lawfully entitled to a 38
substance to which this Part applies or on its own motion, make an order that 39
the substance be returned to the person if the substance has not been destroyed 40
under this Part or the regulations. 41
(2) This Part does not prevent an order being made under section 43 of the 42
Criminal Procedure Act 1986 in relation to a substance to which this Part 43
applies. 44
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
(3) An application for an order under this section, and an order under this section, 1
may be made despite sections 39C and 39E. 2
(4) An application for an order under this section may be made to: 3
(a) a court in which proceedings for an offence relating to the substance 4
have been commenced, or 5
(b) if proceedings have not commenced, or any such proceedings have been 6
completed, the Local Court. 7
(5) This section is subject to section 39. 8
39P Return of substances 9
(1) A member of the NSW Police Force who seizes a substance to which this Part 10
applies or has custody of a substance to which this Part applies must return the 11
substance to the owner or person who had lawful possession of the thing 12
before it was seized or came into custody if the member of the NSW Police 13
Force is satisfied that: 14
(a) its retention as evidence is not required, and 15
(b) it is lawful for the person to have possession of the substance. 16
(2) This section is subject to any order made for the destruction of the substance 17
under this Part or any other provision of this Act and to any order made under 18
section 39O. 19
(3) This section is subject to section 39. 20
39Q Use of substances in controlled operations and integrity testing programs 21
(1) The Commissioner of Police may, by order in writing, direct that any 22
substance to which this Part applies that has been seized by a police officer be 23
retained by a police officer specified in the direction for the purpose of its 24
being used in connection with: 25
(a) a controlled operation under the Law Enforcement (Controlled 26
Operations) Act 1997, or 27
(b) an integrity testing program under Part 10A of the Police Act 1990. 28
(2) A direction under this section may be given in relation to a substance: 29
(a) whether it is intended for immediate use or for use at some later time, 30
and 31
(b) whether it is intended for use by the police officer specified in the 32
direction or for use by some other person. 33
(3) A direction under this section is subject to the following conditions: 34
(a) that the substance to which the direction relates is to be kept securely 35
until it is used in connection with a controlled operation or integrity 36
testing program, 37
(b) any other condition that the Commissioner of Police considers 38
appropriate. 39
(4) A direction under this section need not identify a particular controlled 40
operation or integrity testing program and a particular controlled operation or 41
integrity testing program need not be in contemplation before a direction under 42
this section may be made. 43
Page 8
Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
(5) Despite any other Act or law to the contrary, the functions of the 1
Commissioner of Police under this section may not be delegated except to: 2
(a) a Deputy Commissioner of Police, or 3
(b) a person who is appointed to a NSW Police Force Senior Executive 4
Service position and to whom the function under section 6 (1) of the 5
Law Enforcement (Controlled Operations) Act 1997 of authorising the 6
conduct of a controlled operation has been delegated in accordance with 7
that Act. 8
[4] Section 41 Authorisation of Secretary of Ministry of Health 9
Omit "Department of Health". Insert instead "Ministry of Health". 10
[5] Section 41A Authorities for low-THC hemp not to be granted 11
Omit "Director-General of the Department of Health". 12
Insert instead "Secretary of the Ministry of Health". 13
[6] Section 42 Certificate of Secretary of Ministry of Health prima facie evidence 14
Omit "Department of Health or by an officer of the Department of Health". 15
Insert instead "Ministry of Health or by a person employed in the Ministry of Health". 16
[7] Section 43 Certificate evidence 17
Omit "Director-General of the Department of Industry and Investment" from section 43 (5). 18
Insert instead "Secretary of the Ministry of Health". 19
[8] Section 43 (5) 20
Omit "Director-General" where secondly occurring. Insert instead "Secretary". 21
[9] Section 43 (6) 22
Omit the definition of analyst. 23
[10] Schedule 3 24
Insert after Schedule 2: 25
Schedule 3 Savings and transitional provisions 26
1 Regulations 27
(1) The regulations may contain provisions of a savings or transitional nature 28
consequent on the enactment of this Act or any Act that amends this Act. 29
(2) Any such provision may, if the regulations so provide, take effect from the 30
date of assent to the Act concerned or a later date. 31
(3) To the extent to which any such provision takes effect from a date that is 32
earlier than the date of its publication on the NSW legislation website, the 33
provision does not operate so as: 34
(a) to affect, in a manner prejudicial to any person (other than the State or 35
an authority of the State), the rights of that person existing before the 36
date of its publication, or 37
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 1 Amendment of Drug Misuse and Trafficking Act 1985 No 226
(b) to impose liabilities on any person (other than the State or an authority 1
of the State) in respect of anything done or omitted to be done before the 2
date of its publication. 3
2 Drug Misuse and Trafficking Amendment (Drug Exhibits) Act 2016 4
(1) Part 3A of this Act, as substituted by the Drug Misuse and Trafficking 5
Amendment (Drug Exhibits) Act 2016, applies, with any necessary 6
modifications, to a substance referred to in that Part that was in the custody of 7
a member of the NSW Police Force on the commencement of that Part. 8
(2) A direction made under section 39RA of this Act, before its repeal by the Drug 9
Misuse and Trafficking Amendment (Drug Exhibits) Act 2016, in relation to a 10
prohibited plant or prohibited drug that was not used in connection with a 11
controlled operation or integrity testing program before that repeal is taken to 12
have been given under section 39Q of this Act as inserted by that Act. 13
Page 10
Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 2 Amendment of Drug Misuse and Trafficking Regulation 2011
Schedule 2 Amendment of Drug Misuse and Trafficking 1
Regulation 2011 2
Part 3 3
Omit the Part. Insert instead: 4
Part 3 Dealings with and analysis of drug exhibits 5
Division 1 Preliminary 6
8 Interpretation 7
(1) In this Part: 8
A sample--see clause 14 (2). 9
approved means approved by the Commissioner of Police for the purposes of 10
this Part. 11
B sample--see clause 16 (2). 12
drug exhibit bag means a bag or other container that is an approved tamper 13
evident bag. 14
qualified plant identifier means a person referred to in clause 12 (2) (b). 15
(2) A reference in this Part to anything done by an analyst includes a reference to 16
anything done by a person under the supervision of an analyst. 17
(3) Words and expressions in this Part have the same meaning as they have in 18
Part 3A of the Act. 19
9 Application of Part 20
This Part applies to a substance to which Part 3A of the Act applies. 21
10 Analysts 22
For the purposes of the definition of analyst in section 3 (1) of the Act, a 23
person who is an analyst (however described) under a law of another State or 24
Territory that corresponds to the Act is an analyst. 25
Division 2 Samples and analysis 26
11 Initial quantity or mass of substances to be recorded and certificate provided 27
(1) As soon as practicable after a substance to which this Part applies first comes 28
into the custody of any member of the NSW Police Force, and before any 29
samples are taken for analysis, an approved member of the NSW Police Force 30
must record the quantity or mass of the substance (the initial quantity or mass) 31
or provide the substance to an analyst for that purpose. 32
(2) The member of the NSW Police Force or analyst must give a certificate as to 33
the initial quantity or mass of a substance and must cause a copy of the 34
certificate to be served on the defendant or accused person in any proceedings 35
under the Act relating to the substance. 36
(3) In any legal proceedings under the Act, the production of a certificate, 37
purporting to be signed by an approved member of the NSW Police Force or 38
analyst, is prima facie evidence of the quantity or mass of the substance and 39
the matters stated in it. 40
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Schedule 2 Amendment of Drug Misuse and Trafficking Regulation 2011
(4) Subclause (3) does not apply if an order for the determination of the mass of 1
the substance is made under section 39M of the Act. 2
(5) In any legal proceedings under the Act, the production of a certificate, 3
purporting to be signed by a person who determined the mass of a substance 4
in accordance with a quantity review order under section 39M of the Act, is 5
prima facie evidence of the mass of the substance and the matters stated in it. 6
12 Prohibited plants 7
(1) As soon as practicable after plants to which this Part applies first come into the 8
custody of any member of the NSW Police Force, a qualified plant identifier 9
or an analyst must be given access to or provided with an amount of the plants 10
that is sufficient to allow their identification. 11
(2) The following persons are prescribed for the purposes of section 39H of the 12
Act: 13
(a) a person who is an analyst, 14
(b) a person approved by the Secretary of the Department of Industry, Skills 15
and Regional Development for the purposes of identifying whether or 16
not plants are prohibited plants. 17
Note. Prohibited plants may be destroyed once identification has been obtained and 18
other identification procedures carried out, see section 39H of the Act. 19
13 Taking and retention of amounts for samples of substances (other than plants) 20
(1) An amount of a substance to which this Part applies (other than a plant) that is 21
sufficient to allow for 3 times the amount required for 2 samples for analysis 22
must, if practicable, be retained by: 23
(a) a member of the NSW Police Force, or 24
(b) an analyst (if the bulk of the substance is provided to the analyst). 25
(2) An amount of a substance that is required to be provided to an analyst under 26
this Part is to be provided by an approved member of the NSW Police Force. 27
Note. Clause 16D provides for the transport of substances by approved couriers. 28
14 Drugs of more than traffickable quantity and other substances 29
(1) This clause applies to the following substances: 30
(a) a Schedule 9 substance, 31
(b) a psychoactive substance, 32
(c) a prohibited drug, or suspected prohibited drug, if the quantity of the 33
drug is not less than the traffickable quantity for the drug. 34
(2) As soon as reasonably practicable after a substance to which this clause 35
applies first comes into the custody of a member of the NSW Police Force, an 36
amount that is sufficient to allow analysis of the substance must be provided 37
to an analyst for analysis (an A sample) from the amount retained under 38
clause 13. 39
(3) A sample of a substance is not required to be provided under this clause if the 40
substance is to be destroyed under section 39G or 39L of the Act or if an 41
analyst has already retained an amount of the substance under clause 13. 42
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Schedule 2 Amendment of Drug Misuse and Trafficking Regulation 2011
15 Drugs of less than traffickable quantity 1
(1) This clause applies to a substance that is a prohibited drug, or suspected 2
prohibited drug, if the quantity of the substance is less than the traffickable 3
quantity for the substance. 4
(2) As soon as reasonably practicable after it is known that the identity of a 5
substance to which this clause applies is to be in dispute in proceedings for an 6
offence, the substance must be provided to an analyst for analysis. 7
16 Analysis of B sample 8
(1) This clause applies to the following: 9
(a) a substance that is a prohibited drug or suspected prohibited drug, if the 10
quantity of the substance is not less than the traffickable quantity for the 11
substance, 12
(b) a Schedule 9 substance or a psychoactive substance, if a sufficient 13
amount has been retained. 14
(2) A defendant or an accused person in proceedings for an offence relating to a 15
substance to which this clause applies may request that an analysis be made of 16
a further sample (a B sample) of the substance. 17
(3) The request is to be made by notice in writing to a qualified police officer not 18
later than 28 days after a certificate of analysis of the A sample of the 19
substance is served on the defendant or accused person. 20
(4) The defendant or accused person may in the notice request: 21
(a) that the analysis of the B sample be witnessed by a nominated person, or 22
(b) that the analysis be carried out by a nominated analyst who is of a class 23
of approved analysts. 24
(5) The qualified police officer is to arrange for an amount that is sufficient to 25
allow analysis of the B sample to be provided to an analyst for analysis. 26
(6) The analyst is to provide a copy of the results of the analysis to the qualified 27
police officer who arranged for the analysis and to the defendant or accused 28
person who requested it. 29
(7) The cost of the analysis is to be borne by the defendant or accused person. 30
16A Carrying out of analysis 31
(1) An analyst to whom a substance is given for analysis under this Part may carry 32
out an analysis of the substance to determine whether it is a prohibited drug, 33
Schedule 9 substance or psychoactive substance and, if it is, to determine: 34
(a) the identity of the substance, and 35
(b) the quantity or mass of the substance, and 36
(c) if the substance is a prohibited drug of or more than the commercial 37
quantity, the purity of the substance, if it is capable of being tested and 38
it is reasonably practicable to do so. 39
(2) If the substance is cannabis leaf, the analyst, after identifying the substance, 40
need only determine the mass of the cannabis leaf. 41
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Schedule 2 Amendment of Drug Misuse and Trafficking Regulation 2011
16B Analyst's certificate 1
An analyst who analyses a substance under this Part may prepare a certificate 2
under section 43 (1) of the Act of the result of the analysis that includes the 3
following: 4
(a) the identity of the substance, 5
(b) the quantity or mass of the substance, 6
(c) if the substance is a prohibited drug of not less than the commercial 7
quantity, the purity of the substance, if it is capable of being tested and 8
it is reasonably practicable to do so. 9
16C Significant variations 10
If a difference occurs between the findings recorded in 2 or more certificates 11
of any analyst concerning the same drug exhibit and the analyst providing the 12
later or latest certificate is of the opinion that the difference is significant, that 13
analyst must immediately forward a copy of all certificates relating to the drug 14
exhibit to the Director of Public Prosecutions. 15
16D Transport of substances for analysis 16
(1) A substance that is being provided to a qualified plant identifier or an analyst 17
for identification or analysis may be transported to the qualified plant 18
identifier or analyst by an approved courier, if the plant or substance is 19
contained in a drug exhibit bag. 20
(2) An approved courier who transports or delivers a substance in accordance with 21
the Act or this Part is exempt from the provisions of the Act relating to the 22
possession or supply of the substance to the extent necessary to enable the 23
courier to carry out those functions. 24
Division 3 Records, storage and security 25
16E Evidence of substances before destruction 26
(1) For the purposes of sections 39G (3), 39I (3) and 39K (1) (c) of the Act, the 27
following particulars must be recorded in relation to a substance (other than a 28
plant): 29
(a) a photograph of the substance, 30
(b) the mass of the substance. 31
(2) For the purposes of sections 39G (3), 39H (b) and 39K (1) (c) of the Act, the 32
following particulars must be recorded in relation to a substance that is a plant: 33
(a) a photograph of the plant, 34
(b) if practicable, the height of the plant, 35
(c) if there is more than one plant, the number of plants. 36
16F NSW Police Force exhibits management system 37
(1) As soon as practicable after the first occasion on which a substance to which 38
this Part applies comes into the custody of any member of the NSW Police 39
Force, the particulars of the substance must be entered into the NSW Police 40
Force exhibits management system in accordance with the requirements of 41
that system. 42
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 2 Amendment of Drug Misuse and Trafficking Regulation 2011
(2) The following must also be entered into the NSW Police Force exhibits 1
management system in accordance with the requirements of that system: 2
(a) particulars of any occasion on which a drug exhibit bag that is in the 3
custody of a member of the NSW Police Force and that contains a 4
substance to which this Part applies is opened after being sealed, 5
(b) particulars of any change in identification details or location of a drug 6
exhibit bag that is in the custody of a member of the NSW Police Force, 7
or is transported to a qualified plant identifier or an analyst for the 8
purposes of this Part, and that contains a substance to which this Part 9
applies (whether transport of the bag is provided by a member of the 10
NSW Police Force or by an approved courier), 11
(c) particulars of the receipt of any such bag. 12
16G Drug exhibit bags 13
(1) A substance to which this Part applies is to be placed in a drug exhibit bag as 14
soon as practicable after the substance first comes into the custody of any 15
member of the NSW Police Force. 16
(2) The drug exhibit bag must be sealed and labelled in the approved manner. 17
(3) The label must: 18
(a) contain the name of the member of the NSW Police Force in charge of 19
the investigation to which the exhibit relates and the name of the person 20
who sealed the bag, and 21
(b) contain the date, time, offender's name (if known) and the registered 22
number of the exhibit, and 23
(c) be signed by the person who sealed the bag. 24
(4) Particulars of the issue of each drug exhibit bag, and of drug exhibit bags 25
containing a substance to which this Part applies, are to be recorded in 26
approved registers. 27
(5) A sealed drug exhibit bag may be opened before analysis only if: 28
(a) a qualified police officer (or a delegate of a qualified police officer) who 29
is of the opinion that exceptional circumstances warrant the action being 30
taken approves the action in writing, or 31
(b) access is required by a member of the NSW Police Force for weighing, 32
presumptive testing or taking a sample. 33
(6) A sealed drug exhibit bag that is opened before analysis must be opened in the 34
presence of the person who requires access to the substance, the member of the 35
NSW Police Force in charge of the investigation to which the exhibit relates 36
or the case exhibit officer. 37
16H Storage of drug exhibit bags 38
A drug exhibit bag that is in the custody of a member of the NSW Police Force 39
and that contains a substance to which this Part applies must, unless it is being 40
transported, be kept: 41
(a) in a locked vault or cabinet that has a dual locking mechanism that 42
requires at least 2 separate keys to unlock it, or 43
(b) in an approved facility. 44
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 2 Amendment of Drug Misuse and Trafficking Regulation 2011
Division 4 Destruction of substances 1
16I Destruction of sample material 2
(1) A part of any substance given to an analyst for analysis under this Part that is 3
not required for the analysis, or a sample for which a certificate of analysis has 4
been given under this Part, may be destroyed with the authority of an 5
Executive Director or a nominated Director of the Forensic and Analytical 6
Science Service of the Ministry of Health. 7
(2) A qualified police officer may order in writing that a part of any substance 8
retained under this Part, for which analysis is not carried out under this Part, 9
be destroyed at any time after the end of any relevant proceedings for an 10
offence relating to the substance. 11
(3) In this clause, the end of any relevant proceedings includes the end of any 12
appeal proceedings or, if no appeal is made, the end of the period within which 13
an appeal may be made. 14
16J Inspection before destruction 15
If an order for the destruction of a substance to which this Part applies is made 16
under Part 3A of the Act or this Division by a qualified police officer, the 17
person who has custody of the substance must arrange for a police officer of 18
or above the rank of inspector to inspect the drug exhibit bag containing the 19
substance to determine whether or not the bag has been opened or tampered 20
with since it was last sealed. 21
16K Manner of destruction 22
A substance that is destroyed under Part 3A of the Act or this Division on the 23
order of a qualified police officer must be destroyed in the presence of all of 24
the following persons: 25
(a) a police officer of or above the rank of inspector, 26
(b) an independent witness, 27
(c) a member of the NSW Police Force who is capable of identifying the 28
exhibit being destroyed as the substance ordered to be destroyed. 29
Division 5 Evidentiary certificates 30
16L Evidentiary provision--NSW Police Force exhibits management system 31
In any proceedings for an offence against the Act or an appeal relating to any 32
such proceedings, the production of one or more exhibit detail sheets certified 33
by a member of the NSW Police Force to have been issued under the authority 34
of the NSW Police Force exhibits management system, and relating to the 35
whole or part of a drug exhibit identified in the sheets, is prima facie evidence 36
of the dealings with that exhibit that are listed in the sheets. 37
16M Evidentiary provision--continuity evidence 38
(1) In any proceedings for an offence against the Act, the production of all of the 39
following certificates is prima facie evidence that a substance (other than a 40
prohibited drug, or suspected prohibited drug, of less than the traffickable 41
quantity) retained by a member of the NSW Police Force was the same 42
substance that was analysed under this Part, if each certificate identifies the 43
same drug exhibit bag: 44
(a) a certificate by a member of the NSW Police Force certifying that the 45
substance was placed in a drug exhibit bag identified in the certificate 46
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 2 Amendment of Drug Misuse and Trafficking Regulation 2011
and that the bag was sealed and labelled by the member of the NSW 1
Police Force, 2
(b) a certificate by an officer of the New South Wales Forensic and 3
Analytical Science Service of the Ministry of Health or other approved 4
person who received a substance for analysis that a specified substance 5
submitted for analysis was received in a drug exhibit bag identified in 6
the certificate, and that, when received, the seal of the drug exhibit bag 7
was not broken or otherwise tampered with, 8
(c) a certificate by an analyst under section 43 (1) of the Act certifying the 9
results of analysis of a substance contained in a drug exhibit bag 10
identified in the certificate. 11
(2) In any proceedings for an offence against the Act, the production of all of the 12
following certificates is prima facie evidence that a substance (other than a 13
prohibited drug, or suspected prohibited drug, of less than the traffickable 14
quantity) retained by a member of the NSW Police Force was the same 15
substance that was analysed under this Part, if each certificate identifies the 16
same drug exhibit bag or another drug exhibit bag into which the substance 17
was placed (as referred to in one of the certificates): 18
(a) a certificate by a member of the NSW Police Force certifying that the 19
substance was placed in a drug exhibit bag identified in the certificate 20
and that the bag was sealed and labelled by the member of the NSW 21
Police Force, 22
(b) a certificate by a member of the NSW Police Force certifying that the 23
drug exhibit bag identified in the certificate: 24
(i) was received by the member and that, when received, the seal of 25
the drug exhibit bag was not broken or otherwise tampered with, 26
and 27
(ii) was opened by the member and that an amount of the substance 28
was removed from the bag, tested or otherwise dealt with as 29
specified in the certificate, and placed in the same drug exhibit 30
bag with a new seal, or another drug exhibit bag, identified in the 31
certificate, that was sealed and labelled by the member, 32
(c) a certificate by an officer of the New South Wales Forensic and 33
Analytical Science Service of the Ministry of Health or other approved 34
person who received a substance for analysis that a specified substance 35
submitted for analysis was received in a drug exhibit bag identified in 36
the certificate (being the drug exhibit bag referred to in 37
paragraph (b) (ii)), and that, when received, the seal of the drug exhibit 38
bag was not broken or otherwise tampered with, 39
(d) a certificate by an analyst under section 43 (1) of the Act certifying the 40
results of analysis of a substance contained in a drug exhibit bag 41
identified in the certificate. 42
(3) In any proceedings for an offence against the Act, the production of all of the 43
following certificates is prima facie evidence that a prohibited drug or 44
suspected prohibited drug of less than the traffickable quantity retained by a 45
member of the NSW Police Force was the same substance that was analysed 46
under this Part, if each certificate identifies the same drug exhibit bag: 47
(a) a certificate by a member of the NSW Police Force certifying that the 48
substance was placed in a drug exhibit bag identified in the certificate 49
and that the bag was sealed and labelled by the member of the NSW 50
Police Force, 51
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Schedule 2 Amendment of Drug Misuse and Trafficking Regulation 2011
(b) a certificate by a member of the NSW Police Force certifying that the 1
drug exhibit bag identified in the certificate: 2
(i) was received by the member and that, when received, the seal of 3
the drug exhibit bag was not broken or otherwise tampered with, 4
and 5
(ii) was or was not opened by the member, and 6
(iii) if the bag was opened, an amount of the substance was removed 7
from the bag, tested or otherwise dealt with as specified in the 8
certificate, and placed in the same drug exhibit bag with a new 9
seal, or another drug exhibit bag, identified in the certificate, that 10
was sealed and labelled by the member, 11
(c) a certificate by an officer of the New South Wales Forensic and 12
Analytical Science Service of the Ministry of Health or other approved 13
person who received a substance for analysis that a specified substance 14
submitted for analysis was received in a drug exhibit bag identified in 15
the certificate (being the drug exhibit bag referred to in 16
paragraph (b) (iii)), and that, when received, the seal of the drug exhibit 17
bag was not broken or otherwise tampered with, 18
(d) a certificate by an analyst under section 43 (1) of the Act certifying the 19
results of analysis of a substance contained in a drug exhibit bag 20
identified in the certificate. 21
16N Proof of signatures, appointments and approval for purposes of evidentiary 22
certificates unnecessary 23
In any legal proceedings under the Act in which a certificate under this Part is 24
produced as prima facie evidence of the matters stated in it, the certificate is 25
prima facie evidence of those matters without proof of the signature, 26
appointment or approval of the person purporting to sign the certificate. 27
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Drug Misuse and Trafficking Amendment (Drug Exhibits) Bill 2016 [NSW]
Schedule 3 Consequential amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 3 Consequential amendment of Law Enforcement 1
(Powers and Responsibilities) Act 2002 No 103 2
Section 216 Application to property 3
Insert after section 216 (2) (a): 4
(a1) a substance to which Part 3A of the Drug Misuse and Trafficking Act 5
1985 applies or an article disposed of under section 39K of that Act, 6
Page 19
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