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Drug offences

07 Sep 2016 - 16:16 | Version 10 |

Contributed by ClementNg and current to 1 May 2016

This section deals with the law relating to the misuse of drugs. The governing law in the NT is found in the Misuse of Drugs Act 1990 (MDA) and a range of Commonwealth legislation namely:
  • Customs Act 1901 (CA)
  • Narcotic Drugs Act 1967 (NDA)
  • Psychotropic Substances Act 1976 (PSA).
These Commonwealth Acts are mainly concerned with the implementation of international treaties, to which Australia is a signatory, concerning illicit drugs. Although the provisions of the NDA allow the Commonwealth to prosecute for offences in the NT such as the manufacture of heroin, prosecutions are rare. In practice, the CA and the MDA cover all but the most unusual drug charges in the NT. Generally, the MDA provides harsher penalties than those found under equivalent legislation elsewhere in Australia.

In the MDA misuse refers to the unlawful possession, cultivation, manufacture and production, use and supply of a wide range of dangerous drugs, which constitute criminal offences. Drugs is defined to include prescription drugs such as morphine and testosterone. The full list of those drugs covered by the MDA is included in two lists, known as schedules, at the end of the Act. Certain other drugs are restricted in their use. Unless these restricted drugs have been lawfully prescribed by a registered medical practitioner, dentist or pharmacist, to possess, use or supply them amounts to a criminal offence.

Factors affecting penalties

Type of drug

As stated above, the MDA contains two schedules that set out the drugs that are illegal in the NT, except where those substances are lawfully prescribed. Essentially, the CA refers to the same substances.

Schedule 1 of the MDA lists only six prohibited drugs and they are considered to be the most harmful:
  • heroin
  • cocaine
  • phencyclidine (commonly known as PCP or angel dust)
  • lysergic acid (commonly known as LSD, acid or trips)
  • lysergide (also known as acid or trips);
  • methamphetamine (commonly known as 'ice' or 'speed')
Schedule 2 lists the remaining drugs that are considered illegal and/or dangerous. These include cannabis plant material, coca leaf, codeine, ketamine, methadone, mescaline, morphine, opium, pethidine and many more.

Quantity of drug

Each schedule also details the minimum quantities of each drug that comprise both traffickable and commercial amounts. The quantities vary according to the particular substance involved. Some examples are:
  • for cannabis plant material (that is, any part of the cannabis plant, including the flowering or fruiting tops, leaves, stalks and seeds), the traffickable quantity is 50 grams and the commercial quantity is 500 grams
  • for cannabis resin (often referred to as 'hashish'), the traffickable quantity is 10 grams and the commercial quantity is 100 grams
  • for amphetamine, the traffickable quantity is 2 grams and the commercial quantity is 100 grams
  • for methamphetamine, the traffickable quantity is 2 grams and the commercial quantity is 40 grams
  • for cannabis plants (that is cannabis that is actually still in the soil or equivalent), the quantities are based upon the number of plants irrespective of their size. The traffickable quantity is five to 19 plants and the commercial quantity is 20 plants or more
  • for morphine, the traffickable quantity is 2 grams and the commercial quantity is 100 grams
  • for heroin and cocaine, the traffickable quantity is 2 grams and the commercial quantity is 40 grams.
Both traffickable and commercial amounts have a direct impact on the maximum sentences that apply to offences under the MDA.

The Misuse of Drugs Amendment Act 2002 came into force on 1 August 2002. One of the amendments affected how the quantity of a drug in a mixture of substances is determined, for the purpose of deciding whether it is a traffickable or commercial quantity. Prior to the amendments the amount of drug was determined by analysing the substance to find out how much of it was the pure dangerous drug. For example, a bag of speed would be analysed to determine how much speed and how much mixture it contained. A person would only be charged with the amount of dangerous drug and not the mixture. If the bag of speed only contained one gram of speed and five grams of sugar mixture, the amount of drug would be determined as one gram. Under the new law, the amount of dangerous drug is determined as if all of the preparation or mixture were comprised of the dangerous drug. Under the new amendments, the bag of speed referred to in the previous example would be considered to be six grams of a dangerous drug. If the bag in fact contained more than one drug the legislation determines that [MDA 3(3)]:
  • if all dangerous drugs found in the preparation or mixture are Schedule 1 drugs, the traffickable or commercial quantity is to be determined as if all the preparation or mixture were comprised of the drug that has the least quantity specified in the schedule. For example, both heroin and lysergic acid are Schedule 1 drugs. A traffickable amount of heroin as set out in the Schedule is two grams, whereas a traffickable amount of lysergic acid is 0.002 grams. If a mixture of three grams of heroin and lysergic acid were found then the amount of drug would be determined as three grams of lysergic acid
  • if all dangerous drugs found in the preparation or mixture are Schedule 2 drugs, the traffickable or commercial quantity is to be determined as if all the preparation or mixture were comprised of the drug that has the least quantity specified in the schedule
  • if one or more dangerous drugs are found in the preparation and one is from Schedule 1 and one from Schedule 2, the traffickable or commercial quantity is to be determined as if all the preparation or mixture were comprised of the Schedule 1 dangerous drug. [MDA 3B].

Presumptions made under the law

On 14 December 2000 the MDA was amended to impose two presumptions with regard to the offences of cultivation, manufacture, production and possession of drugs. The effect of these presumptions is to deem an intention on the part of the offender in relation to the substance involved. Instead of the prosecution having to prove that intent, the onus falls on the offender to disprove it. For example, the MDA [s.37(6)(a)] presumes that where a traffickable quantity of a particular drug exists, the offender intended to 'supply' the dangerous drug. The MDA also presumes that where a commercial quantity of a particular drug exists, the offender intended to 'supply for commercial gain' [s.37(6)(b)].

It is important to note that the presumptions apply even when a specific charge relating to 'supplying a dangerous drug' has not been laid. In other words if, for example, a person is charged with possession of a traffickable quantity of cannabis, the presumptions still have to be overcome in the court proceedings. In practice, it may mean that the defendant has to give evidence on oath in court to rebut the presumption.

Either presumption, if found to be the case, has an effect on the sentence given to the offender.

Offences

There are five general types of drug offences under the MDA:
  • supplying
  • cultivation
  • manufacture and production
  • possession
  • administering (to self or to another person).

Supply

It is an offence to supply or take part in the supply of a dangerous drug to another person, whether or not that person is in the NT or some other place [MDA s.5(1)].

The word 'supply' has a very broad meaning [MDA s.3]. It is defined in the MDA to mean to give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration. The definition also includes offering to do one of these acts, doing or offering to do an act that is preparatory to or in furtherance of, one of these acts, and barter and exchange. In other words, to assist in weighing the drugs before they are packaged can fall within the extended definition of supply.

Persons can also be involved in supply if they participate in a step in the process of supply, or if they provide or arrange finance or provide the premises in which such a step is taken [MDA s.3(6)]. For example, a landowner who allows drugs to be sold from their property may be considered as being involved in the supply of those drugs.

The maximum penalties for supply are severe and depend on whether the substance is a Schedule 1 or Schedule 2 drug, and whether the amount is a commercial or non-commercial quantity. Examples of maximum penalties under this section are:
  • life imprisonment, where the supply of a Schedule 1 drug is by an adult to a child, and this applies to both a commercial quantity and a non-commercial quantity [MDA s.5(2)(a)(i), s5(2)(b)(i)]
  • supply of a non-commercial quantity of a Schedule 2 drug by an adult to a child carries a maximum penalty of 14 years and, where a commercial quantity is involved, 25 years [MDA s.5(2)(b)(ii)].
It should be noted that the law imposes harsher penalties if police can prove that the drugs are supplied in an indigenous community. For example, if an offender is found guilty of supplying any amount below 500 grams of cannabis in an indigenous community, the maximum penalty is nine years as opposed to five years. An indigenous community is defined as a 'prescribed area' under the relevant legislation (see s.4 of the Northern Territory National Emergency Response Act 2007 (Cth)).

See Table 1 below for details about specific drugs.

Note there is no reference to a traffickable quantity in this offence.
Table 1: Penalties for supply

Supplying cannabis
Supplier/receiver Quantity Maximum penalty
Adult to child Over 500gms 25 years in prison
Adult to adult Over 500gms 14 years in prison
Adult to child Less than 500gms 14 years in prison
Adult to adult Less than 500gms $13,005 fine or 5 years in prison
Supplying heroin or cocaine
Supplier/receiver Quantity Maximum penalty
Adult to adult Over 40gms 25 years in prison
Adult to child Less than 40gms Life in prison
Adult to adult Less than 40gms 14 years in prison
Supplying LSD (acid or trips)
Supplier/receiver Quantity Maximum penalty
Adult to child Over 0.1gm Life in prison
Adult to child Less than 0.1gm Life in prison
Adult to adult Less than 0.1gm 14 years in prison
Supplying amphetamines
Supplier/receiver Quantity Maximum penalty
Adult to child Over 100gms 25 years in prison
Adult to adult Over 100gms 14 years in prison
Adult to child Less than 100gms 14 years in prison
Adult to adult Less than 100gms $13,005 fine or 5 years in prison

Cultivation

In the NT the most common illegal substance cultivated is cannabis. A charge can be laid against offenders if they have been involved with cultivating an illegal substance, or facilitated the cultivation, i.e. this could be a person who knowingly provided transport or access to a water supply.

Under the MDA, cultivation is defined to include growing, sowing, scattering seed, planting, nurturing, tending and harvesting.

A person is also considered to have cultivated if they do any of the following [MDA s.3(6)]:
  • participate in a step in the process of cultivation
  • provide or arrange finance for a step in the process
  • provide the premises for any step of the cultivation process as owner, lessee, occupier or manager. Table 2 below outlines the penalties for cannabis cultivation.
Table 2: Penalties for cannabis cultivation
Number of plants Maximum penalty
1-4 plants $6120 fine or 2 years in prison
5-19 plants 7 years in prison
20 plants or more 25 years in prison

On the spot fines

Since 30 June 1996 the police have had the discretion to issue infringement notices or 'on the spot' fines when a person over the age of 18 years is caught growing no more than two plants [MDA s.20A(a)] (see On the spot fines for minor cannabis offences ).

Manufacture and production

The term manufacture is defined in the MDA to include the process of extracting and refining the dangerous drug [s.3(1)]. A person who unlawfully manufactures or produces a dangerous drug or takes part in the manufacture or production of a dangerous drug is guilty of a crime [MDA s.8].

The definition of production includes:
  • preparing, packaging or producing
  • offering to prepare, package or produce
  • doing or offering to do an act preparatory to preparing, packaging or producing. An example would be purchasing ephedrine (or pseudoephedrine) for use in the production of methamphetamine.
Persons can also be prosecuted for manufacture or production if they become involved in any of the three activities mentioned above.

The penalties imposed for manufacture or production depend on the type of drug involved and the quantity produced. See Table 3 below.

Under amendments to the MDA passed in 2002 it is also an offence to have possession of a precursor, a substance which is intended to be used in the manufacture or production of a dangerous drug [s.8A]. The Misuse of Drugs Regulations contains a schedule of precursors, which includes items such as ephedrine and other substances used in the manufacture of drugs. The legislation states that proof of possession of a precursor by a person is evidence that the person intended the precursor to be used in the manufacture or production of a dangerous drug [s.8A(3)]. It is also an offence to supply a precursor to someone knowing it is intended to be used in the manufacture of drugs [s.8D]. A person can also commit an offence if they possess a document setting out how to manufacture or produce a dangerous drug if they also have in their possession equipment or implements that have been, or may be, used in producing a dangerous drug [s.8B]. An example of a document might be a leaflet on how to make speed. The word 'document' includes information stored electronically, that is, on a computer [Interpretation Act s.17]. The penalty for this offence is seven years imprisonment. Possessing articles for use in manufacture or production of dangerous drugs is an offence under section 8C of the MDA.

For information about the specifics regarding commercial and non-commercial quantities of each drug see Schedule 2 of the MDA.
Table 3: Penalites for manufacture or production - [s.8(2)]

Type of drug Quantity Maximum penalty
Schedule 1 commercial quantity life imprisonment
Schedule 1 non-commercial quantity 25 years
Schedule 2 commercial quantity 25 years
Schedule 2 non-commercial quantity 7 years

Possession

It is illegal to possess a dangerous drug [MDA s.9]. Under the MDA the definition of possession is not straightforward. Possession is defined to mean both actual possession and constructive possession. Actual possession is the illegal substance under the owner's control, for example, in the pocket of the jeans they are wearing. Constructive possession means the drugs are being held by another person or in another place on behalf of the owner, provided the owner still has control over, or access to, the drug(s). A person can therefore be charged with possession if the drugs are found in their luggage, the boot of their car or a room at their house, or even at their friend's place. Possession is defined broadly and it covers a variety of situations.

Where a prohibited drug is found in a person's home, the law now says it is sufficient proof that the person was in possession unless he or she can show that they didn't know and had no reason to suspect that the drug was there. In practice, it will mean defendants will now be required to give evidence in court to rebut this evidentiary presumption.

The penalty imposed for possession depends on the type of drug, the quantity involved, and whether the drugs where found in a private or public place. For example the maximum penalty for a traffickable quantity of a Schedule 1 drug, such as heroin, would be 14 years in prison if the person was found with the drugs when they were in a public place, say on the street, but only seven years if the drugs were found at their home. See Table 4 below.
Table 4: Penalties for possession
Quantity/ location Penalty
Possession of heroin/cocaine
40 gms or more 25 years in prison
Less than 40 gms in a public place 14 years in prison
Less than 40 gms in private 7 years in prison
Less than 2 gms in a public place $13,005 fine or 5 years in prison
Less than 2 gms in private $6,120 fine or 2 years in prison
Possession of LSD ('acid' or 'trips')
0.1 gm or more 25 years in prison
0.002-0.099 gm in a public place 14 years in prison
0.002-0.099 gm in private 7 years in prison
Less than 0.002 gm in a public place $13,005 fine or 5 years in prison
Less than 0.002 gm in private $6,120 fine or 2 years in prison
Possession of amphetamines (speed)
100gms or more 14 years in prison
2-99.9 gms $13,005 fine or 5 years in prison
Less than 2 gms in a public place $6,120 fine or 2 years in prison
Less than 2 gms in private $2,601 fine
Possession of cannabis plant material
500 gms or more 14 years in prison
50-499.9 gms $13,005 fine or 5 years in prison
Less than 50 gms in a public place $6,120 fine or 2 years in prison
Less than 50 gms in private $2,601 fine
Less than 50 gms (if over 18 years of age) $260.1 'on the spot' fine
Possession of cannabis resin or seed
100 gms or more 14 years in prison
10-99.9 gms $13,005 fine or 5 years in prison
Less than 10 gms in a public place $6,120 fine or 2 years in prison
Less than 10 gms in private $2,601 fine
Less than 10 gms (if over 18 years of age) $260.1 'on the spot' fine
Possession of cannabis oil
25 gms or more 14 years in prison
1-24.9 gms $13,005 fine or 5 years in prison
Less than 1 gm in a public place $6,120 fine or 2 years in prison
Less than 1 gm in private $2,601 fine

Administering

A person who takes a dangerous drug commits an offence called administering [MDA s.13]. A person is also guilty of this offence if they allow another person to administer a drug to them, for example, by person 'A' allowing person 'B' to inject a drug into A's arm [MDA s.14].

The maximum penalty for this offence is a $2,601 fine or imprisonment for two years.

Drug equipment

It is illegal to possess an object used to administer a drug, such as a bong or hashish pipe [MDA s.12]. When prosecuting this offence, the police have to prove that the 'possession' was 'unlawful', that is, without authorisation or excuse.

It is not an offence to possess hypodermic needles and syringes if they were supplied by a doctor, pharmacist or other authorised person. However, it is an offence if there is a failure to properly and safely dispose of a needle or syringe that has been used to administer a dangerous drug. A person who uses needles or syringes to inject dangerous drugs has to take all reasonable precautions to avoid danger being caused to someone else.

Any person other than a doctor, pharmacist or authorised person, who supplies hypodermic needles or syringes to administer a dangerous drug to another person, commits an offence - even if that person is not in the NT [MDA s.12(2)].

Forging prescriptions and deception

In the NT it is an offence to forge or fraudulently alter a medical prescription or be in possession of such a prescription. It is also illegal to obtain a prescription or drug by pretending to be someone else or faking symptoms [MDA ss.15-17].

The maximum penalty for all the above offences is a fine of $2,601 or two years imprisonment.

On the spot fines for cannabis offences

Since 30 June 1996 the police have had a discretion to issue infringement notices or 'on the spot' fines for some personal use cannabis offences. This does not mean that the use of cannabis has been legalised or decriminalised. It just means that offenders have an option to avoid going to court.

An infringement notice can only be issued to a person over the age of 18 years. An offender under the age of 18 can be referred to juvenile diversion programs or dealt with in the Youth Justice Court.

An infringement notice imposes a fixed fine of $260.1 where:
  • the cannabis cultivated is not more than two plants; or
  • the cannabis possessed is less than 1 gm of oil, 10 gms of resin or seed or 50 gms of cannabis plant material.
Administrative costs may also have to be paid if the fine is not paid within 28 days from the date the notice is issued. If the penalty is paid, no conviction is recorded and no further action is taken. If the fine is not paid by the due date, the fines may increase and further actions may be taken against the person who was issued with the notice.

If person challenges the infringement notice, the matter goes to court, and if the court finds that the offence was committed, a conviction may be recorded against the offender.

Sentencing

Drug offences are heard either in the Supreme Court of the NT, the Court of Summary Jurisdiction or Youth Justice Court, commonly known as the Magistrates' Court (see Courts and tribunals, chapter 1). Serious offences go before the Supreme Court, which can impose the maximum sentence provided. Less serious cases are heard in the Magistrates' Court.

A person can generally have their case heard in the Magistrates' Court if they have been charged with supply, cultivation, manufacture and production, or possession or theft of dangerous drugs - provided the maximum penalty possible doesn't exceed 14 years in gaol [MDA s.22(1)]. In such cases, the maximum penalty a magistrate can impose is a fine of $13,005 or imprisonment for two years.

Despite s.22(1), this option is not open to a person who, if found guilty, could be declared to be 'a drug trafficker' under section 36A of the MDA - discussed below, [s.22(2)].

The factors a judge or magistrate can take into account when sentencing are many and varied. Each case will differ and it is dangerous to generalise. Factors for consideration include:
  • the quantity of the drug involved
  • the extent of any commercial dealing
  • whether the drugs were intended for personal use
  • any prior convictions, especially prior drug convictions
  • the offender's contribution to society and the local community
  • whether the offender supports and maintains a family
  • the offender's age, for example if the offender is young (under 21 years of age) or an aged pensioner
  • in relation to cannabis plants, the size and number where there was little likelihood of the plants maturing
  • any drug dependency by the offender, especially whether any positive steps have been taken for rehabilitation
  • other evidence of the offender's rehabilitation.

Fines

Following a finding of guilt, section 28 of the MDA provides that in addition to any other penalty for any of the offences referred to in this chapter, the court may also impose a fine. The fine may exceed the maximum amount that the relevant provision stipulates. For example, the fine imposed for possession of a less than trafficable quantity of Schedule 2 drug in a public place may exceed $6,120. If the offender defaults in paying the fine then the court can impose up to three years imprisonment - even if it exceeds the maximum prison sentence laid down in the provision.

Implications of section 36A

Where a person has been found guilty of an offence listed under section 36A(6) and that person has, within 10 years of the court's finding of guilt, is then found guilty on two or more occasions of an offence under subsection (6) - or a similar offence - the court must, upon application by the Director of Public Prosecutions, declare that offender to be a 'drug trafficker'.

Amongst the offences under subsection (6) are:
  • supply
  • cultivate
  • manufacture/produce or
  • possess
  • dangerous drugs
  • importation/ exportation of drugs
In this situation, the offences have to be determined by the Supreme Court, even if the offence was one which was capable of being determined by the Magistrates' Court. There are two very important implications in this situation:
  1. the Supreme Court can award the maximum sentence for the offence, i.e. the court is not confined to the maximum of $13,005 or two years imprisonment the Magistrates' Court is restricted to
  2. a declaration that an offender is a 'drug trafficker' exposes them (under section 94 of the Criminal Property Forfeiture Act) to the automatic forfeiture of all property and assets they own (or have effective control over), and that is in addition to any sentence imposed by the Supreme Court.

Minimum mandatory sentences

A principle of sentencing in most areas of criminal law is one that says that imprisonment is to be used as the 'sentence of last resort'. However, under parts of the MDA this principle can be reversed; the onus is on the offender to demonstrate why a gaol sentence should not be imposed (see below). This principle of sentencing is applied to all drug matters where the maximum penalty for the offence (with or without the option of a fine) is:
  • seven years imprisonment or more
  • less than seven years but the offence has an aggravating circumstance. Examples of aggravating circumstances are where the offender has a prior conviction for a drug offence anywhere in Australia, or where the offence was committed on licensed premises or in a playground, public swimming pool, school, video arcade or youth centre (including gymnasiums, roller skating rinks, bicycle tracks and discotheques) and includes carparks near such facilities [MDA s.37(1)].
In all of these circumstances, the court is required to impose a gaol sentence which includes a mandatory minimum sentence of 28 days imprisonment, unless 'particular circumstances' exist [MDA s.37(2)]. What these 'particular circumstances' are is not made clear in the MDA, but they are similar to the general sentencing factors affecting sentencing for drug offences. The Supreme Court has in past cases decided that 'particular circumstances' include combinations of the following:
  • the quantity of the drug involved
  • whether the drugs were intended for personal use
  • the absence of prior convictions of any kind
  • the absence of prior drug convictions
  • the offender's contribution to society and the local community
  • whether the offender supports and maintains a family
  • the offender's age, for example if the offender is young (under 21 years of age) or an aged pensioner
  • in relation to cannabis plants, the size and number where there was little likelihood of the plants maturing
  • any drug dependency by the offender, especially whether any positive steps have been taken for rehabilitation
  • evidence of the offender's rehabilitation
  • medical issues.
The above list is not exhaustive: what will constitute 'particular circumstances' will vary from case to case.

It should be remembered that while the court is obliged to impose the minimum mandatory period of imprisonment, it can bring down a longer sentence.

As already stated, the penalties under the MDA are harsh, the law is often complex and the consequences can be serious.

Search and seizure

Warrants for drug searches are issued under the PAA [ss.117, 120B].

A search warrant can be issued if police suspect on reasonable grounds that anything connected with a criminal offence may be concealed on a person [PAA s.117(1)] or contained on any land, vehicle or vessel [PAA s.117(2)]. A search warrant can permit police (and other people assisting them) to search people, their clothing, any property in the person's immediate control, or any land, vehicle or vessel belonging to that person. In the case of prohibited drugs, the search warrant extends to situations where the police reasonably believe that drugs will be brought on or into land, an aircraft, vehicle or ship, or be concealed on a person, or their property, within the following 72-hour period [PAA s.120B].

A warrant also authorises the police to search:
  • any person found in the location specified in the warrant, and their personal property
  • any person who enters the search area after the police arrive.
Police can use 'reasonable force' to enter premises for searches. While searching they can open cupboards and containers, cupboards or drawers. In some circumstances the search can also extend to ripping open mattresses or couches.

Provided that the way in which a search was conducted was reasonable, police have no obligation to repair any damage caused during the search. If a person thinks that police have caused unreasonable and inappropriate damage, they should make a claim to the Commissioner of Police and request legal advice.

A person named in a warrant, or in the location covered by the warrant, has the right to ask to be shown the warrant. However, there is no legal obligation on police to provide the person with their own copy of the warrant.

Under certain circumstances police can enter onto 'land', such as someone's property, without a warrant to conduct a search. The circumstances have to be serious and urgent enough to justify the search. An example would be where police reasonably believed that drugs were on premises and about to be disposed of [PAA s.119].

Police can, without a warrant, stop and detain any aircraft, vehicle or ship, and any person in or onboard, if they reasonably believe a dangerous drug may be found [PAA s.120C]. A similar power exists to stop, search and detain any person in a public place if police suspect that person possesses a dangerous drug. What is considered 'reasonable' depends on the particular circumstances of each case. Some examples would be:
  • police see a person apparently involved in a drug purchase - this would likely amount to a 'reasonable' basis for a search.
However, if
  • police stop a driver of a car for speeding, in the absence of other relevant factors this would not amount to a 'reasonable' basis for a search
  • police stop a person simply because of their age and race - this would not amount to sufficient basis for a search.
Females may only be searched by a female police officer or a medical doctor of either gender [PAA s.120E]. If neither is available, another female authorised by a police officer, such as a nurse, can do the search.

There are restrictions on how far such a body search can go. Unless the police have a specific warrant authorising a more intimate search, a basic search can only extend to the clothing and the obvious body parts. This would not extend to body cavities, except the mouth, ears and nose to the extent that these can be examined without any external apparatus. There is no age limit applicable to searches. However, in the case of juveniles, an appropriate adult should normally be present for the search, unless the urgency of the situation precludes this. In such a situation, police carrying out the search, or authorising it, would have to justify it.

Under s.35A of the MDA, police may seek an order from the Supreme Court when it is believed that a person has swallowed a dangerous drug, or may have concealed a dangerous drug on/in their body. Such court order will permit investigations by X-ray, ultrasound, etc., and an internal examination can be carried out by an appropriately qualified person.

Drug premises

Amendments to the MDA that came into force on 1 August 2002 further extended police powers of search and seizure in relation to drugs. The amendments created procedures that allowed police to have suspected premises (residential, commercial or licensed) declared a drug premises. The Commissioner of Police may apply to the court for a 'drug premises order' if a dangerous drug is found at the same premises on two or more separate occasions within 12 months [MDA s.11D(3)]. There is no requirement for the the owner, landlord or tenant to be served with any notice [MDA s.11H]. The order is in effect for 12 months from the date it was made but it only comes into effect once the requisite person is served with the order. The notice must specify that a 'Drug Premises Notice' will be affixed to the premises within seven days, unless an application for revocation is made [MDA s.11N].

A drug premises order enables the police to enter the premises without a warrant and conduct a search [MDA s.11R (1)(a)]. They may also search any person in the drug house, including clothing and any property in the person's immediate control, where that person is reasonably suspected of carrying anything connected with an offence under the MDA. Under section 11R(3) of the MDA, police are also allowed to :
  • use reasonable force to break into, enter and search a drug house
  • use reasonable force to open any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in a drug house
  • use reasonable force to search a person.
It is an offence to prevent, delay or obstruct a police officer from entering the premises to conduct a search, or to warn another person that the police have begun or are about to begin a search [MDA s.11S]. The owner, tenant or landlord may apply to the court to get the drug house order revoked [MDA s.11P]. When considering such an application the court must be satisfied of either of the following:
  • on the balance of probabilities, dangerous drugs are no longer being or likely to be supplied from the premises
  • it would be unjust to keep the order in force.

Implications under 'Drug Premises'

When rented residential premises are declared to be 'drug premises', the landlord can terminate the tenancy of this premises on 14 days notice [s88A of Residential Tenancies Act; MDA s.11U(1)].

When business or liquor-licensed premises are declared to be 'drug premises', the landlord can issue a Notice requiring vacant possession of the business premises within 14 days [Business Tenancies (Fair Dealings) Act s.126 ; MDA s.11U(3)].

In addition, as far as liquor-licensed premises are concerned, the Commissioner of Police may seek to have the liquor licence suspended [Liquor Act s.49A; MDA s.11W].

Seizure

When conducting a search, police can seize any substance they reasonably believe to be a dangerous drug [PAA s.120BA]. They can also seize any thing, money or security they suspect on reasonable grounds to be connected with or derived from a dangerous drug.

Under the MDA a member of the police force above the rank of Commander may also order the destruction of a dangerous drug [s.19B(1)]. They can do this whether or not a person has been or is to be charged with an offence in relation to the dangerous drug [MDA s.19B(2)].

Forfeiture of property

Police can seize anything believed to be a dangerous drug found in the course of a search. When a charge (including summons) is taken to court, a judge or magistrate can order that the drug be forfeited, regardless of whether or not the person has been convicted of an offence relating to it [MDA s.34].

The court also has the power to forfeit property that relates to an offence [MDA s.34]. The prosecution can apply to have property relating to an offence, such as a car or plane used to courier drugs, land used to grow drugs, a shed used for storing drugs, or money made from dealing in drugs, forfeited to the government. This power only extends to situations where a person had been found guilty of a drug offence and the property in question relates to the offence. An example would be hydroponic equipment, lights, power boards and so on, used in the cultivation of cannabis where the offender was convicted of cultivating cannabis.

Anyone who has a claim or entitlement to the property to be forfeited, other than the offender, has the right to intervene in the application to preserve their interests.

Note: this power is in addition to proceedings under the Criminal Property Forfeiture Act.

Receiving tainted property

It is an offence to receive or possess 'tainted property', which is property that was obtained directly or indirectly from the supply of a dangerous drug anywhere in Australia [MDA s.6]. To be found guilty of this offence, the person who received the tainted property must have known or believed that it was obtained from supplying dangerous drugs. The maximum penalty for this offence is 25 years imprisonment.

Federal offences

The Customs Act 1901 (Cth) (CA) is a Federal law that relates to the movement and control of dangerous drugs into and out of Australia. It contains many offences not related to drugs, such as quarantine and customs duty matters. It also creates some drug offences similar to those in the MDA, but also covers other types of drug-related activity, such as importation.

The CA prohibits the importation of any narcotics listed in a schedule of the Act, including barbiturates, morphine, methadone, heroin, cocaine, opium, cannabis, pethidine, LSD and amphetamines.

A person charged under the CA, or other Commonwealth legislation relating to dangerous drugs, should seek legal advice immediately (see Legal aid ).

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