What are illegal drugs?
In NSW, it is an offence to possess, use, produce or supply a drug which has been declared prohibited. Most drug charges in NSW are laid under the Drug Misuse and Trafficking Act 1985.The Commonwealth Criminal Code covers offences involving importing and exporting drugs.
The Drug Misuse and Trafficking Act 1985
The NSW Drug Misuse and Trafficking Act 1985classifies a wide range of drugs as 'prohibited drugs' (and 'prohibited plants' in the case of cannabis, opium and coca). The Act creates offences for:
- use of prohibited drugs
- possession of prohibited drugs
- supply and trafficking of prohibited drugs (with the seriousness of the offence depending on the quantities involved)
- cultivation and possession of prohibited plants
- manufacture of prohibited drugs
- aiding and abetting and taking part in offences involving prohibited drugs or plants
- possession of drug-use implements.
The drugs covered by the Act are listed in a schedule. They include the common street drugs - cannabis (marijuana), heroin, ecstasy, amphetamines, LSD, cocaine, methadone - and many others.
Synthetic drugs are criminalised by a combination of the Poisons and Therapeutic Goods Act 1966 and the Drug Misuse and Trafficking Act 1985.
The Commonwealth Criminal Code
The Criminal Code is a federal law that aims, among other things, to prevent the import and export of prohibited drugs. The range of drugs (listed in a schedule to the Act) is similar to that in the Drug Misuse and Trafficking Act. Criminal Code offences include dealing with imported drugs after they have been brought into the country.
Confiscating proceeds of crime
There is both NSW and federal legislation that can be used to seize assets obtained through serious drug offences, and other offences. Some of these laws apply only after a person is convicted of an offence. Some apply without a conviction, or even without a criminal charge being laid.
These confiscation laws do not apply to minor drug offences, such as use and possession, or small-scale dealing. The Acts that come into operation after conviction are:
The Acts that apply regardless of criminal conviction are:
- Criminal Assets Recovery Act 1990 (NSW)
- Customs Act 1901 (Cth), sections 229A and 243B
- Proceeds of Crime Act 2002 (Cth).
How cases proceed
Cases run under these laws are civil, not criminal actions. This means that a person does not get a criminal record if the court orders forfeiture of their property, or the payment of a monetary penalty. It also means that the court must only be satisfied on the balance of probabilities (not beyond reasonable doubt) that the property in question is tainted. NSW cases are conducted in the Supreme Court, with proceedings brought by the NSW Drug Crime Commission. Federal cases are run in the Federal Court.
International treaties and conventions
Australia is a signatory to a number of international treaties and conventions about drugs and drug policy. These treaties are all prohibitionist in their basic intent. Countries that sign these treaties must agree to pass laws against using and trading of recreational drugs.
International treaties and conventions are not law in Australia. The only law in NSW is legislation passed by state or federal parliament and precedent decisions made by the courts. The legal status of the treaties is to guide the federal government. In some cases, treaties give the federal government constitutional power to pass laws it might not otherwise have had. New South Wales and other Australian states are not signatories to international treaties so they are not strictly legally bound by their terms, although there is a tradition that states and provinces should act consistently with treaties entered by their national governments.
The main international treaties about drugs that Australia has signed are:
- the Single Convention on Narcotic Drugs 1961
- the Convention on Psychotropic Substances 1971
- the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.
These treaties require the nations that sign them to pass laws imposing criminal penalties on drug use, possession and supply. However, the treaties also allow for flexibility. For example, they allow signatory countries to permit the use of prohibited drugs for medical purposes.
Importantly, the treaties also provide an option to divert drug offenders to rehabilitation and treatment programs, instead of imposing criminal punishments.