Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017

No. 40 of 2017

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purpose 12 Commencement 23 Principal Act 2

Part 2—Amendment of Principal Act 3

4 Definitions 35 Persons authorized to have possession etc. of poisons or

controlled substances 56 Definitions for Division 10 of Part II 57 Exception to Schedule 8 permit requirement—patients in

prisons, aged care services and hospitals 68 New Part IIIA inserted 69 Definitions for Division 1 of Part IV 910 Where can police powers under this Division be exercised? 911 Definitions for Part V 912 New section 80ZF inserted 913 Warrant to search premises 1014 Search without warrant 1015 Forfeiture of drug of dependence or substance before

conviction 1116 Appeals 1117 Destruction of drugs of dependence—health and safety

interests 1218 General regulations 1219 New section 145 inserted 1320 Part 3 of Schedule Eleven amended—methylamphetamine 1321 Part 3 of Schedule Eleven amended—synthetic cannabinoids 1322 Part 3 of Schedule Eleven amended—classes of synthetic

cannabinoids 1423 Part 3 of Schedule Eleven amended—synthetic substances 15

1

Part 3—Other amendments and repeal 16

Division 1—Confiscation Act 1997 16

24 Application for disposal order 1625 Offences—Forfeiture on court order 17

Division 2—Repeal 17

26 Repeal of amending Act 17═══════════════

Endnotes 18

1 General information 18

Drugs, Poisons and Controlled Substances Miscellaneous Amendment

Act 2017†

No. 40 of 2017

[Assented to 12 September 2017]

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purpose

The purpose of this Act is to amend the Drugs, Poisons and Controlled Substances Act 1981—

(a) to prohibit the production, sale and advertising of psychoactive substances; and

Victoria

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(b) to apply the search, seizure and forfeiture powers in Part VI of that Act and the forfeiture powers in section 77 of the Confiscation Act 1997 to psychoactive substances; and

(c) to add further drugs of dependence to Schedule Eleven to that Act; and

(d) to reduce the quantities of methylamphetamine that are treated as commercial quantities or large commercial quantities by that Act; and

(e) to authorise medical practitioners and nurse practitioners to administer, supply or prescribe a Schedule 8 poison to or for a person detained in a police gaol without a Schedule 8 permit.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 November 2017, it comes into operation on that day.

3 Principal Act

In this Act, the Drugs, Poisons and Controlled Substances Act 1981 is called the Principal Act.

Section Page

2

Part 2—Amendment of Principal Act4 Definitions

In section 4(1) of the Principal Act insert the following definitions—

"consume, in relation to a substance, includes the following—

(a) ingest the substance;

(b) inject the substance;

(c) inhale the substance;

(d) smoke the substance, or inhale fumes caused by heating or burning the substance;

(e) apply the substance externally to the body of a person;

(f) by any other means introduce the substance into any part of the body of a person;

psychoactive effect, in relation to a person, means—

(a) stimulation or depression of the person's central nervous system, resulting in hallucinations or in a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood; or

(b) causing a state of dependence, including physical or psychological addiction;

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psychoactive substance means—

(a) a substance that, when consumed by a person, has a psychoactive effect; or

(b) a substance that is represented as, or in any other way held out to be, a substance that, when consumed by a person, has a psychoactive effect; or

(c) a substance referred to in paragraph (a) or (b) that is contained in or mixed with another substance—

but does not include any of the following—

(d) a drug of dependence;

(e) a poison or controlled substance;

(f) a volatile substance within the meaning of Part IV;

(g) medicinal cannabis;

(h) a therapeutic good—

(i) included in the Register within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth; or

(ii) exempted from the operation of Part 3-2 of that Act by regulations made under section 18 of that Act; or

(iii) exempted from Division 2 of Part 3-2 of that Act under section 18A of that Act; or

(iv) that is the subject of an approval or authority under section 19 of that Act, if used in accordance with that approval or authority; or

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(v) that is the subject of an approval under section 19A of that Act, if used in accordance with that approval;

(i) food within the meaning of the Food Act 1984 that complies with the Food Standards Code within the meaning of that Act;

(j) liquor within the meaning of the Liquor Control Reform Act 1998;

(k) a tobacco product within the meaning of the Tobacco Act 1987;

(l) a chemical product within the meaning of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992;

(m) a plant or fungus or an extract of a plant or fungus;

(n) a prescribed substance or a substance that is in a prescribed class of substances;

public place has the same meaning as it has in the Summary Offences Act 1966;".

5 Persons authorized to have possession etc. of poisons or controlled substances

In section 13(1)(c) of the Principal Act, for "opthalmic" substitute "ophthalmic".

6 Definitions for Division 10 of Part II

In section 31(1) of the Principal Act insert the following definition—

"police gaol has the same meaning as it has in section 3(1) of the Corrections Act 1986;".

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7 Exception to Schedule 8 permit requirement—patients in prisons, aged care services and hospitals

(1) In the heading to section 34F of the Principal Act, after "prisons," insert "police gaols,".

(2) After section 34F(a) of the Principal Act insert—

"(ab) a person being treated in a police gaol for the period in the police gaol and a period not exceeding 7 days after that person's release from the police gaol; or".

8 New Part IIIA inserted

After Part III of the Principal Act insert—

"Part IIIA—Psychoactive substances

56A Definitions

(1) In this Part—

advertisement means—

(a) any words, whether written or spoken; or

(b) any pictorial representation or design; or

(c) any other representation by any means at all;

produce means make, prepare, process, extract, refine, package or label.

(2) The definition of label in section 4(1) does not apply to this Part.

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56B Burden of proof

Section 104 does not apply to an offence against this Part.

56C Representation that not for human consumption not a defence

It is not a defence to a charge for an offence against this Part that any labelling of, or representation made about, a substance indicates that it is not for human consumption.

56D Offence to produce psychoactive substance

A person must not produce a substance that the person knows or reasonably suspects is a psychoactive substance.

Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both;

In the case of a body corporate, 1200 penalty units.

56E Offence to sell or supply psychoactive substance

(1) A person must not sell a substance that the person knows or reasonably suspects is a psychoactive substance.

Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both;

In the case of a body corporate, 1200 penalty units.

(2) A person must not, in the course of carrying out a commercial activity, supply to another person a substance that the person knows or

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reasonably suspects is a psychoactive substance.

Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both;

In the case of a body corporate, 1200 penalty units.

56F Offence to advertise psychoactive substance

(1) A person must not display or cause or permit to be displayed on or inside a public place or a vehicle or vessel that is in a public place an advertisement that the person intends as a promotion of the consumption, sale or supply of a psychoactive substance or psychoactive substances generally.

Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both;

In the case of a body corporate, 1200 penalty units.

(2) A person must not display or cause or permit to be displayed on or inside a public place or a vehicle or vessel that is in a public place an advertisement if the person knows that there is a substantial risk that the consumption, sale or supply of a psychoactive substance or psychoactive substances generally may be promoted by that advertisement.

Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both;

In the case of a body corporate, 1200 penalty units.".

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9 Definitions for Division 1 of Part IV

In section 57(1) of the Principal Act, in paragraph (a) of the definition of volatile substance, for "propellent" substitute "propellant".

10 Where can police powers under this Division be exercised?

Section 60C(2) of the Principal Act is repealed.

11 Definitions for Part V

In section 70(1) of the Principal Act, in Example 1 at the foot of the definition of aggregated large commercial quantity—

(a) for "800 grams" (where secondly occurring) substitute "450 grams";

(b) for "1 kilogram for methylamphetamine" substitute "750 grams for methylamphetamine";

(c) for "800/1000" (where secondly occurring) substitute "450/750";

(d) for "4/5" (where secondly occurring) substitute "3/5";

(e) for "11/5 or 2·2" substitute "10/5 or 2".

12 New section 80ZF inserted

Before section 81 of the Principal Act insert—

"80ZF Definitions

In this Part—

commercial supply means supply in the course of carrying out a commercial activity;

produce has the same meaning as it has in Part IIIA.".

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13 Warrant to search premises

In section 81(8) of the Principal Act, the definition of public place is repealed.

14 Search without warrant

(1) In section 82(f) of the Principal Act, for "boat vessel" substitute "boat, vessel".

(2) At the end of section 82 of the Principal Act insert—

"(2) If a police officer has reasonable grounds for suspecting that there is a psychoactive substance—

(a) on or in a vehicle in a public place; or

(b) on an animal in a public place; or

(c) in the possession of a person in a public place; or

(d) on or in a boat or vessel, underway or not; or

(e) on or in an aircraft—

the police officer may with any assistance that the police officer thinks necessary do any of the following—

(f) search the vehicle, animal, person, boat, vessel or aircraft;

(g) seize and carry away any instrument, device or substance which the police officer reasonably believes to be used or capable of being used for or in the production, sale, commercial supply or preparation for sale or commercial supply of any psychoactive substance;

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(h) seize and carry away the psychoactive substance—

and deal with it according to law.".

15 Forfeiture of drug of dependence or substance before conviction

(1) In section 83(1) of the Principal Act—

(a) in paragraph (a), after "dependence" insert ", a psychoactive substance";

(b) for paragraph (b) substitute—

"(b) an instrument, device or substance is an instrument, device or substance that is or has been used or is capable of being used for or in—

(i) the cultivation, manufacture, sale or use or in the preparation for cultivation, manufacture, sale or use of a drug of dependence; or

(ii) the production, sale, commercial supply or preparation for sale or commercial supply of a psychoactive substance—";

(c) for "dependence or poison" (where twice occurring) substitute "dependence, psychoactive substance or poison";

(d) in paragraph (c), after "dependence," insert "psychoactive substance,".

(2) In section 83(5) of the Principal Act, after "dependence" insert ", psychoactive substance".

16 Appeals

In section 90(1) and (6) of the Principal Act, for "drug related offence" substitute "offence in relation to a drug of dependence or a psychoactive substance".

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17 Destruction of drugs of dependence—health and safety interests

(1) In the heading to section 91 of the Principal Act, after "dependence" insert "and psychoactive substances".

(2) In section 91(1) of the Principal Act—

(a) in paragraph (b)—

(i) after subparagraph (i) insert—

"(ia) a psychoactive substance; or";

(ii) in subparagraph (iii), for "dependence; and" substitute "dependence; or";

(iii) after subparagraph (iii) insert—

"(iv) an instrument, device or substance that is or has been used or is capable of being used for or in the production, sale, commercial supply or preparation for sale or commercial supply of a psychoactive substance; and";

(b) after "drug of dependence," insert "psychoactive substance,".

(3) In sections 91(4) and 94(1)(c) of the Principal Act, after "provision of" insert "Part IIIA or".

18 General regulations

After section 132(r) of the Principal Act insert—

"(s) prescribing substances, or classes of substances, that are not psychoactive substances;".

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19 New section 145 inserted

After section 144 of the Principal Act insert—

"145 Transitional—Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017

(1) The amendment made to Schedule Eleven by sections 20 to 23 of the Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017 apply only to offences alleged to have been committed after the commencement of the applicable section.

(2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of the applicable section of the Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017, the offence is alleged to have been committed before that commencement.".

20 Part 3 of Schedule Eleven amended—methylamphetamine

In Part 3 of Schedule Eleven to thePrincipal Act, for the item relating to "METHYLAMPHETAMINE" substitute—

"METHYLAMPHETAMINE

500·0 g 750·0 g 50·0 g 250·0 g 30·0 g 3·0 g - 0·75 g".

21 Part 3 of Schedule Eleven amended—synthetic cannabinoids

In Part 3 of Schedule Eleven to the Principal Act, after the item relating to "1-(5-FLUOROPENTYL)-INDOLE-3-CARBOXYLIC ACID 8-QUINOLINYL ESTER (5F-PB-22)" insert—

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"N-[1-(AMINOCARBONYL)-2-METHYLPROPYL]-1-PENTYLINDAZOLE-3-CARBOXAMIDE (common name AB-PINACA)

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

N-[1-(AMINOCARBONYL)-2-METHYLPROPYL]-1-(CYCLOHEXYLMETHYL)INDAZOLE-3-CARBOXAMIDE (common name AB-CHMINACA)

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

N-[1-(METHOXYCARBONYL)-2,2-DIMETHYLPROPYL]-1-(CYCLOHEXYLMETHYL)INDOLE-3-CARBOXAMIDE (common name MMB-CHMINACA)

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

N-[1-(AMINOCARBONYL)-2-METHYLPROPYL]-1-[(4-FLUOROPHENYL)METHYL]-INDAZOLE-3-CARBOXAMIDE (common name AB-FUBINACA)

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g".

22 Part 3 of Schedule Eleven amended—classes of synthetic cannabinoids

In Part 3 of Schedule Eleven to the Principal Act, after the item relating to "INDOLE-3-CARBOXYLIC ACID, QUINOLINYL ESTERS" insert—

"AZAINDOLE-3-CARBOXAMIDES with any modification on the azaindole or amide nitrogens, whether or not further modified on the azaindole ring

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

INDAZOLE-3-CARBOXAMIDES whether or not with any modification on the indazole or amide nitrogens, whether or not further modified on the indazole ring

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

INDAZOLE-3-CARBOXYLATES with any modification on the indazole nitrogens or the carboxylate oxygen, whether or not further modified on the indazole

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

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ring

INDOLE-3-CARBOXAMIDES with any modification on the indole or amide nitrogens, whether or not further modified on the indole ring

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

INDOLE-3-CARBOXYLATES with any modification on the indole nitrogen or the carboxylate oxygen, whether or not further modified on the indole ring

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

PYRAZOLE-3-CARBOXAMIDES with any modification on the pyrazole or amide nitrogens, whether or not further modified on the pyrazole ring

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g

PYRAZOLE-5-CARBOXAMIDES with any modification on the pyrazole or amide nitrogens, whether or not further modified on the pyrazole ring

- 10·0 kg - 1·0 kg - 3·0 g - 1·0 g".

23 Part 3 of Schedule Eleven amended—synthetic substances

At the end of Part 3 of Schedule Eleven to the Principal Act insert—

"3,4-DICHLORO-N-([1-(DIMETHYLAMINO)CYCLOHEXYL]METHYL)BENZAMIDE (common name AH-7921)

750·0 g 1·0 kg 250·0 g 500·0 g 30·0 g 3·0 g - 1·0 g

N-[(1-AMINOCYCLOHEXYL)METHYL]BENZAMIDES, including those with any modification on the amino- or amido-nitrogens, whether or not further modified on the aromatic or cyclohexyl rings

750·0 g 1·0 kg 250·0 g 500·0 g 30·0 g 3·0 g - 1·0 g".

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Part 3—Other amendments and repeal

Division 1—Confiscation Act 199724 Application for disposal order

(1) In section 77(1) of the Confiscation Act 1997—

(a) in paragraph (a), after "a drug of dependence" insert ", a psychoactive substance";

(b) for paragraph (b) substitute—

"(b) an instrument, device or substance that is or has been used or is capable of being used for or in—

(i) the cultivation, manufacture, sale or use or in the preparation for cultivation, manufacture, sale or use of a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981; or

(ii) the production, sale, commercial supply or preparation for sale or commercial supply of a psychoactive substance within the meaning of the Drugs, Poisons and Controlled Substances Act 1981; or".

(2) After section 77(2) of the Confiscation Act 1997 insert—

"(3) In this section, commercial supply has the same meaning as it has in Part VI of the Drugs, Poisons and Controlled Substances Act 1981.".

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25 Offences—Forfeiture on court order

After item 5A of Schedule 1 to the Confiscation Act 1997 insert—

"5B. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981—

(a) section 56D (producing a psychoactive substance);

(b) section 56E(1) or (2) (selling or supplying a psychoactive substance);

(c) section 56F(1) or (2) (advertising a psychoactive substance).".

Division 2—Repeal26 Repeal of amending Act

This Act is repealed on 1 November 2018.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1)of the Interpretation of Legislation Act 1984).

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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Endnotes

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† Minister's second reading speech—

Legislative Assembly: 9 March 2017

Legislative Council: 2 May 2017

The long title for the Bill for this Act was "A Bill for an Act to amend the Drugs, Poisons and Controlled Substances Act 1981 in relation to psychoactive substances, methylamphetamine and opioid substitution therapy and for other purposes."