(1) In this Act,
unless the contrary intention appears—
"Advisory Council" means the Controlled Substances Advisory Council
established under Part 2;
"aggravated offence"—where a provision differentiates between the
penalty for an aggravated offence and the penalty for a basic offence, the
reference to an aggravated offence is a reference to the offence in its
aggravated form (see section 43);
"analyst" means—
(a) a
person appointed as an analyst for the purposes of this Act; or
(b) a
person holding a position of a class approved by the Governor for the purposes
of this Act;
"applied provisions" means the Commonwealth therapeutic goods laws that apply
as a law of South Australia by virtue of section 11A;
"artificially enhanced cultivation" means—
(a)
cultivation in a solution comprised wholly or principally of water enriched
with nutrients; or
(b)
cultivation involving the application of an artificial source of light or
heat;
"assessment service" means a drug assessment service accredited under
section 56A;
"authorised officer"—see section 50(1);
"basic offence"—where a provision differentiates between the penalty for
an aggravated offence and the penalty for a basic offence, the reference to a
basic offence is a reference to the offence in its non-aggravated form (see
section 43);
"cannabis" means a plant, or any part (including the seed) of a plant, of the
genus cannabis , but does not include cannabis resin or cannabis oil;
"cannabis oil" means a substance that contains chemicals of any one or more of
the following classes;
(a)
cannabinoids;
(b)
tetrahydrocannabinols;
(c)
alkyl homologues of tetrahydrocannabinols,
where the amount of soluble material in any quantity of the substance, when
dissolved in the solvent known as hexane, constitutes more than 85 per cent of
the weight of that quantity of substance;
"cannabis resin" means a substance that contains chemicals of any one or more
of the following classes:
(a)
cannabinoids;
(b)
tetrahydrocannabinols;
(c)
alkyl homologues of tetrahydrocannabinols,
where the amount of soluble material in any quantity of the substance, when
dissolved in the solvent known as hexane, constitutes more than 15 per cent
but not more than 85 per cent of the weight of that quantity of substance;
"child" means a person under the age of 18 years and, in relation to the
alleged commission of an offence, means a person who was, at the time of the
alleged commission of the offence, under that age;
"commercial quantity" of a controlled drug, controlled precursor or
controlled plant means—
(a) in
relation to a controlled drug or controlled precursor contained in a
mixture—
(i)
a quantity of the drug or precursor that equals or
exceeds the amount prescribed as a commercial quantity for the drug or
precursor (as the case may be) in its pure form; or
(ii)
a quantity of the mixture that equals or exceeds the
amount prescribed as a commercial quantity for any mixture containing the drug
or precursor (as the case may be); or
(iii)
a number of discrete dosage units of the mixture that
equals or exceeds the number of discrete dosage units prescribed as a
commercial quantity for any mixture containing the drug or precursor (as the
case may be); or
(b) in
relation to a controlled drug or controlled precursor that is not contained in
a mixture—
(i)
if the regulations prescribe an amount as a
commercial quantity for the drug or precursor (as the case may be) in its pure
form—a quantity of the drug or precursor that equals or exceeds the
amount so prescribed; or
(ii)
if the regulations do not prescribe an amount as a
commercial quantity for the drug or precursor (as the case may be) in its pure
form—a quantity of the drug or precursor that equals or exceeds the
amount prescribed as a commercial quantity for any mixture containing the drug
or precursor; or
(c) in
relation to a controlled plant—
(i)
a number of the plant that equals or exceeds the number
of plants prescribed as a commercial quantity for the plant; or
(ii)
a weight of the plant that equals or exceeds the weight
prescribed as a commercial quantity for the plant;
"Commonwealth Act" means the Therapeutic Goods Act 1989 of the
Commonwealth;
"Commonwealth Minister" means the Minister of the Commonwealth responsible for
the administration of the Commonwealth therapeutic goods laws;
"Commonwealth Secretary" means the Secretary of the Department of the
Commonwealth that is, under the Commonwealth Minister, responsible for the
administration of the Commonwealth therapeutic goods laws;
"Commonwealth therapeutic goods laws" means the Commonwealth Act and the
regulations, orders and manufacturing principles under that Act;
"controlled drug" means—
(a) a
drug of dependence; or
(b) a
substance declared by the regulations to be a controlled drug for the purposes
of this Act; or
(c) an
interim controlled drug,
but does not include a controlled plant;
"controlled plant" means a growing cannabis plant or a cutting of a cannabis
plant (provided that the cutting has been planted or otherwise placed in a
growing medium) or any other plant declared by the regulations to be a
controlled plant for the purposes of this Act;
"controlled precursor" means a substance declared by the regulations to be a
controlled precursor for the purposes of this Act;
"cultivate" a controlled plant means—
(a)
plant a seed, seedling or cutting of the plant or transplant the plant; or
(b)
nurture, tend or grow the plant; or
(c)
harvest the plant (including pick any part of the plant or separate any resin
or other substance from the plant); or
(d) dry
the harvested plant or part of the plant; or
(e) take
part in the process of cultivation of the plant;
"dentist" means a person registered under the Health Practitioner Regulation
National Law —
(a) to
practise in the dental profession as a dentist (other than as a student); and
(b) in
the dentists division of that profession;
"Department" means the department of the Minister to whom the administration
of this Act has been committed;
"discrete dosage unit", in relation to a controlled drug contained in a
mixture or a controlled precursor contained in a mixture, means an amount of
the mixture which is prepared or apparently prepared for the purpose of being
administered as a single dose;
"drug detection dog" means a dog that has completed training of a kind
approved by the Commissioner of Police for the purpose of detecting the
presence of a controlled drug, controlled precursor or controlled plant;
"drug of dependence" means a poison declared by the regulations to be a
drug of dependence;
"electronic drug detection system" means—
(a) an
electronic device of a kind approved by the Commissioner of Police; or
(b) a
system, of a kind approved by the Commissioner of Police, that involves the
use of an electronic device,
for the purpose of detecting the presence of a controlled drug, controlled
precursor or controlled plant;
"general drug detection" means—
(a)
walking or otherwise placing a drug detection dog in the vicinity of a person
or property; or
(b)
using an electronic drug detection system in relation to a person or property
in a manner prescribed by regulation,
for the purpose of determining whether the dog or system (as the case may be)
detects the presence of a controlled drug, controlled precursor or
controlled plant (but does not include any other conduct by a person that
would constitute a search);
"interim controlled drug" means a substance declared to be an
interim controlled drug by a notice under section 12A;
"large commercial quantity" of a controlled drug, controlled precursor or
controlled plant means—
(a) in
relation to a controlled drug or controlled precursor contained in a
mixture—
(i)
a quantity of the drug or precursor that equals or
exceeds the amount prescribed as a large commercial quantity for the drug or
precursor (as the case may be) in its pure form; or
(ii)
a quantity of the mixture that equals or exceeds the
amount prescribed as a large commercial quantity for any mixture containing
the drug or precursor (as the case may be); or
(iii)
a number of discrete dosage units of the mixture that
equals or exceeds the number of discrete dosage units prescribed as a
large commercial quantity for any mixture containing the drug or precursor (as
the case may be); or
(b) in
relation to a controlled drug or controlled precursor that is not contained in
a mixture—
(i)
if the regulations prescribe an amount as a
large commercial quantity for the drug or precursor (as the case may be) in
its pure form—a quantity of the drug or precursor that equals or exceeds
the amount so prescribed; or
(ii)
if the regulations do not prescribe an amount as a
large commercial quantity for the drug or precursor (as the case may be) in
its pure form—a quantity of the drug or precursor that equals or exceeds
the amount prescribed as a large commercial quantity for any mixture
containing the drug or precursor; or
(c) in
relation to a controlled plant—
(i)
a number of the plant that equals or exceeds the number
of plants prescribed as a large commercial quantity for the plant; or
(ii)
a weight of the plant that equals or exceeds the weight
prescribed as a large commercial quantity for the plant;
"manufacture", in relation to a controlled drug means—
(a)
undertake any process by which the drug is extracted, produced or refined; or
(b) take
part in the process of manufacture of the substance;
"medical device" has the same meaning as in the applied provisions;
"medical practitioner" means a person registered under the Health Practitioner
Regulation National Law to practise in the medical profession (other than as a
student);
"medicine" has the same meaning as in the applied provisions;
"midwife" means a person registered under the Health Practitioner Regulation
National Law to practise in the midwifery profession as a midwife (other than
as a student);
"mixture"—see section 33OA(3);
"nurse" means a person registered under the Health Practitioner Regulation
National Law to practise in the nursing profession as a nurse (other than as a
student);
"nurse practitioner" means a nurse whose registration under the Health
Practitioner Regulation National Law is endorsed as being qualified to
practise as a nurse practitioner;
"owner", in relation to premises, includes the occupier of the premises;
"pharmacist" means a person registered under the Health Practitioner
Regulation National Law to practise in the pharmacy profession (other than as
a student);
"poison" means a substance declared by the regulations to be a poison for the
purposes of this Act;
"possession" of a substance or thing includes—
(a)
having control over the disposition of the substance or thing; and
(b)
having joint possession of the substance or thing;
"premises" means any land, building, structure, vehicle, vessel or aircraft;
"prescription drug" means a poison declared by the regulations to be a
prescription drug for the purposes of this Act;
"product" of a controlled plant includes—
(a) a
seed of the plant; and
(b) a
part of the plant (whether live or dead); and
(c) a
substance separated from the plant;
"registered health practitioner" has the same meaning as in the Health
Practitioner Regulation National Law ;
"school zone" means the grounds of a primary or secondary school and the area
within 500 metres of the boundary of the school;
"sell" means sell, barter or exchange, offer or agree to sell, barter or
exchange or expose for sale, barter or exchange;
"senior police officer" means a police officer of or above the rank of
Inspector;
"simple possession offence" means an offence against section 33L(1) other
than an offence relating to a prescribed controlled drug;
"substance" means any gaseous, liquid or solid substance and includes a plant
or fungus;
"supply" means provide or distribute or offer to provide or distribute;
"traffic" in a controlled drug means—
(a) sell
the drug; or
(b) have
possession of the drug intending to sell it; or
(c) take
part in the process of sale of the drug;
"trafficable quantity" of a controlled drug or controlled plant means—
(a) in
relation to a controlled drug contained in a mixture—
(i)
a quantity of the drug that equals or exceeds the amount
prescribed as a trafficable quantity for the drug in its pure form; or
(ii)
a quantity of the mixture that equals or exceeds the
amount prescribed as a trafficable quantity for any mixture containing the
drug; or
(iii)
a number of discrete dosage units of the mixture that
equals or exceeds the number of discrete dosage units prescribed as a
trafficable quantity for any mixture containing the drug; or
(b) in
relation to a controlled drug that is not contained in a mixture—
(i)
if the regulations prescribe an amount as a
trafficable quantity for the drug in its pure form—a quantity of the
drug that equals or exceeds the amount so prescribed; or
(ii)
if the regulations do not prescribe an amount as a
trafficable quantity for the drug in its pure form—a quantity of the
drug that equals or exceeds the amount prescribed as a trafficable quantity
for any mixture containing the drug; or
(c) in
relation to a controlled plant—
(i)
a number of the plant that equals or exceeds the number
of plants prescribed as a trafficable quantity for the plant; or
(ii)
a weight of the plant that equals or exceeds the weight
prescribed as a trafficable quantity for the plant;
"treatment service" means a drug treatment service accredited under
section 56A;
"Tribunal" means the South Australian Civil and Administrative Tribunal
established under the South Australian Civil and Administrative Tribunal
Act 2013 ;
"vessel" means any ship, boat or other water craft;
"veterinary surgeon" means a person registered as a veterinary surgeon under
the Veterinary Practice Act 2003 ;
"volatile solvent" means a substance declared by the regulations to be a
volatile solvent for the purposes of this Act.
(2) A substance is an
analogue of another for the purposes of this Act if—
(a) they
both have substantially similar chemical structures; or
(b) they
both have substantially similar pharmacological effects.
(3) Subject to the
regulations, an analogue of a controlled drug (not being an analogue that is
itself declared by regulation to be a drug of dependence or a controlled drug)
is by virtue of this subsection a controlled drug.
(4) For the purposes
of this Act, a person takes part in the process of sale, manufacture or
cultivation of a controlled drug or controlled plant if the person directs,
takes or participates in any step, or causes any step to be taken, in the
process of sale, manufacture or cultivation of the drug or plant.
(5) For the purposes
of this Act, a step in the process of sale of a controlled drug includes,
without limitation, any of the following when done for the purpose of sale of
the drug:
(a)
storing the drug;
(b)
carrying, transporting, loading or unloading the drug;
(c)
packaging the drug, separating the drug into discrete units or otherwise
preparing the drug;
(d)
guarding or concealing the drug;
(e)
providing or arranging finance (including finance for the acquisition of the
drug);
(f)
providing or allowing the use of premises or jointly occupying premises.
(6) For the purposes
of this Act, a step in the process of manufacture of a controlled drug
includes, without limitation, any of the following when done for the purpose
of manufacture of the drug:
(a)
acquiring equipment, substances or materials;
(b)
storing equipment, substances or materials;
(c)
carrying, transporting, loading or unloading equipment, substances or
materials;
(d)
guarding or concealing equipment, substances or materials;
(e)
providing or arranging finance (including finance for the acquisition of
equipment, substances or materials);
(f)
providing or allowing the use of premises or jointly occupying premises.
(7) For the purposes
of this Act, a step in the process of cultivation of a controlled plant
includes, without limitation, any of the following when done for the purpose
of cultivation of the plant:
(a)
acquiring the plant or equipment, substances or materials;
(b)
storing the plant or equipment, substances or materials;
(c)
carrying, transporting, loading or unloading the plant or equipment,
substances or materials;
(d)
guarding or concealing the plant or equipment, substances or materials;
(e)
providing or arranging finance (including finance for the acquisition of the
plant or equipment, substances or materials);
(f)
providing or allowing the use of premises or jointly occupying premises.
(7a) For the purposes
of this Act, in determining the maximum penalty for an offence against this
Act, an offender is a "serious drug offender if the offender has, within
10 years of the commission of the offence, been previously convicted
of—
(a) 2 or
more offences against Part 5 Division 2 (other than Subdivision 4) or Division
3, being offences arising out of separate incidents; or
(b) 3 or
more offences against Part 5 (other than sections 33D, 33DA, 33I(2), 33K,
33L, 33LA, 33LAB or 33LB), being offences arising out of separate incidents.
(8) In
subsection (7)—
"materials" includes seeds, seedlings and cuttings.