drugs, poisons and controlled substances amendment act 2016file/16-002a.docx · web viewact no....

Drugs, Poisons and Controlled Substances Amendment Act 2016

No. 2 of 2016

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 23 Principal Act 2

Part 2—Amendment of the Drugs, Poisons and Controlled Substances Act 1981 3

4 Definitions 35 Trafficking in a drug of dependence to a child 36 Trafficking in a drug of dependence 37 New section 71AD inserted 48 Possession of substance, material, documents or equipment for

trafficking in a drug of dependence 59 Supply of drug of dependence to a child 510 New sections 71E and 71F inserted 611 Defence to prosecution for offences involving cultivation 712 New section 72D inserted 713 Adjourned bonds to be given in certain cases 814 Conspiring 915 Inciting etc. 916 New section 144 inserted 9

Part 3—Amendment of other Acts 11

Division 1—Amendment of the Confiscation Act 1997 11

17 Schedule 2—Offences—automatic forfeiture and civil forfeiture 11

Division 2—Amendment of the Residential Tenancies Act 1997 12

18 Drug-related conduct in public housing 12

Part 4—Repeal of amending Act 14

19 Repeal of amending Act 14═══════════════

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Endnotes 15

1 General information 15

Drugs, Poisons and Controlled Substances Amendment Act 2016†

No. 2 of 2016

[Assented to 16 February 2016]

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purposes

The purposes of this Act are—

(a) to amend the Drugs, Poisons and Controlled Substances Act 1981 to provide for further offences in relation to drugs of dependence; and

(b) to consequentially amend the Confiscation Act 1997 and other Acts.

Victoria

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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 20 October 2016, 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

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Part 2—Amendment of the Drugs, Poisons and Controlled Substances Act 1981

4 Definitions

In section 70(1) of the Principal Act insert the following definitions—

"public place has the same meaning as it has in section 3 of the Summary Offences Act 1966;

school has the same meaning as it has in section 1.1.3 of the Education and Training Reform Act 2006;".

5 Trafficking in a drug of dependence to a child

(1) In section 71AB of the Principal Act, for "A person" substitute "Subject to subsection (2), a person".

(2) At the end of section 71AB of the Principal Act insert—

"(2) A person who, without being authorised by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence to a child at a school or in a public place within 500 metres of a school is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).".

6 Trafficking in a drug of dependence

(1) In section 71AC of the Principal Act, for "A person" substitute "Subject to subsection (2), a person".

Part 4—Repeal of amending Act

Drugs, Poisons and Controlled Substances Amendment Act 2016No. 2 of 2016

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(2) At the end of section 71AC of the Principal Act insert—

"(2) A person who, without being authorised by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence at a school or in a public place within 500 metres of a school is guilty of an indictable offence and liable to level 3 imprisonment (20 years maximum).".

7 New section 71AD inserted

After section 71AC of the Principal Act insert—

"71AD Use of violence or threats to cause trafficking in drug of dependence

(1) A person must not intentionally cause another person to traffick in a drug of dependence by—

(a) threatening to harm that person or another person; or

(b) using violence against that person or another person.

Penalty: Level 6 imprisonment (5 years maximum).

(2) Nothing in subsection (1) prevents a person who trafficks a drug of dependence in the circumstances specified in that subsection from being liable for any offence of trafficking under this Part.

(3) Nothing in this section limits or affects the operation of—

(a) section 79 or 80; or

(b) section 322O, 322P, 323 or 324 of the Crimes Act 1958.".



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8 Possession of substance, material, documents or equipment for trafficking in a drug of dependence

(1) In section 71A(1) of the Principal Act, for "manufacture" substitute "trafficking".

(2) After section 71A(3) of the Principal Act insert—

"(4) Nothing in this section is limited by section 71E.".

9 Supply of drug of dependence to a child

(1) In section 71B(1) of the Principal Act, for "A person" substitute "Subject to subsection (1A), a person".

(2) After section 71B(1) of the Principal Act insert—

"(1A) A person who, without being authorised by or licensed under this Act or the regulations to do so—

(a) supplies a drug of dependence to a child at a school or in a public place within 500 metres of a school for the purposes of the supply of that drug of dependence by that child to another person, whether a child or adult; or

(b) supplies a drug of dependence to a child at a school or in a public place within 500 metres of a school for the use of that drug of dependence by that child—

is guilty of an indictable offence and liable to a penalty of not more than 1600 penalty units or level 3 imprisonment (20 years maximum) or both.".



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10 New sections 71E and 71F inserted

After section 71D of the Principal Act insert—

"71E Possession of document containing information about trafficking or cultivating a drug of dependence

(1) A person who, without being authorised by or licensed under this Act or the regulations to do so or otherwise without a reasonable excuse, possesses a document containing instructions for the trafficking or cultivation of a drug of dependence is guilty of an indictable offence and liable to a penalty of not more than 600 penalty units or level 6 imprisonment (5 years maximum) or both.Note

See the definition of document in section 38 of the Interpretation of Legislation Act 1984. See the definition of traffick in this Part which includes manufacturing a drug of dependence and also section 71(2).

(2) Section 104 does not apply to an offence against this section.

71F Publication of document containing instructions

(1) A person who, without being authorised by or licensed under this Act or the regulations to do so or otherwise without a reasonable excuse, publishes a document containing instructions for the trafficking or cultivation of a drug of dependence—

(a) with the intention that the instructions will be used by another person for the purposes of the trafficking or cultivation of a drug of dependence; or



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(b) knowing or being reckless as to whether the instructions will be used by another person for the purpose of the trafficking or cultivation of a drug of dependence—

is guilty of an indictable offence and liable to a penalty of not more than 1200 penalty units or level 5 imprisonment (10 years maximum) or both.

(2) For the purposes of subsection (1), it is irrelevant whether the document or the instructions contained in the document actually work to traffick or cultivate a drug of dependence.

(3) For the purposes of this section, publish includes sell, offer for sale, let on hire, exhibit, display, distribute and demonstrate.

(4) Section 104 does not apply to an offence against this section.".

11 Defence to prosecution for offences involving cultivation

In section 72C of the Principal Act, for "or 72B" substitute ", 72B or 72D(2)".

12 New section 72D inserted

After section 72C of the Principal Act insert—

"72D Permitting use of premises for trafficking or cultivation of drug of dependence

(1) An owner or occupier of land or premises who, without being authorised by or licensed under this Act or the regulations to do so, intentionally permits another person to use that land or those premises for trafficking in a drug of dependence is guilty of an indictable offence and liable to a penalty level 6 imprisonment (5 years maximum).



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(2) An owner or occupier of land or premises who, without being authorised by or licensed under this Act or the regulations to do so, intentionally permits another person to use that land or those premises for cultivating a drug of dependence is guilty of an indictable offence and liable to a penalty level 6 imprisonment (5 years maximum).

(3) For the purposes of this section, premises includes the following—

(a) residential dwellings, including temporary accommodation;

(b) commercial or industrial land and buildings;

(c) other structures on land;Examples

Caravans, cabins, sheds, outhouses, shipping containers.

(d) vehicles, including motor vehicles, aircraft, boats and vessels.".

13 Adjourned bonds to be given in certain cases

(1) After section 76(1)(ab) of the Principal Act insert—

"(ac) a person is charged with an offence under section 71E and at the hearing the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to cultivating or trafficking in a drug of dependence; and".

(2) In section 76(1)(b) of the Principal Act, for "or (ab)" substitute ", (ab) or (ac)".

(3) In section 76(1)(c) of the Principal Act, for "or (ab)" substitute ", (ab) or (ac)".



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14 Conspiring

In section 79(1) of the Principal Act—

(a) after "71AC," insert "71AD,";

(b) after "71B," insert "71E, 71F,";

(c) after "72B" insert ", 72D".

15 Inciting etc.

(1) In section 80(1) of the Principal Act—

(a) after "71AC," (where twice occurring) insert "71AD,";

(b) after "71B," (where twice occurring) insert "71E, 71F,";

(c) after "72B" (where twice occurring) insert ", 72D".

(2) In section 80(4) of the Principal Act—

(a) after "71AC," insert "71AD,";

(b) after "71B," insert "71E, 71F,";

(c) after "72B," insert "72D,".

16 New section 144 inserted

After section 143 of the Principal Act insert—

"144 Transitional provisions—Drugs, Poisons and Controlled Substances Amendment Act 2016

(1) The amendments made to section 71AB by section 5 of the Drugs, Poisons and Controlled Substances Amendment Act 2016 apply only to offences alleged to have been committed after the commencement of section 5 of that Act.



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(2) The amendments made to section 71AC by section 6 of the Drugs, Poisons and Controlled Substances Amendment Act 2016 apply only to offences alleged to have been committed after the commencement of section 6 of that Act.

(3) The amendments made to section 71B by section 9 of the Drugs, Poisons and Controlled Substances Amendment Act 2016 apply only to offences alleged to have been committed after the commencement of section 9 of that Act.

(4) For the purpose of subsections (1), (2) and (3), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of section 5, 6, or 9 of the Drugs, Poisons and Controlled Substances Amendment Act 2016 (as the case requires), the offence is alleged to have been committed before the applicable commencement.".



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Part 3—Amendment of other Acts

Division 1—Amendment of the Confiscation Act 1997

17 Schedule 2—Offences—automatic forfeiture and civil forfeiture

(1) In clause 1 of Schedule 2 to the Confiscation Act 1997—

(a) in subclause (ac), after "71AB" insert "(1)";

(b) after subclause (ac) insert—

"(aca) section 71AB(2) (trafficking in a drug of dependence to a child at a school or in a public place within 500 metres of a school) where—

(i) the drug of dependence is a drug specified in Part 3 of Schedule Eleven to that Act; and

(ii) the quantity of the drug of dependence trafficked is not less than the automatic forfeiture quantity specified in column 2B of Part 3 of Schedule Eleven to that Act applicable to that drug;".


(a) in subclause (ad), after "71AC" insert "(1)";

(b) after subclause (ad) insert—

"(ada) section 71AC(2) (trafficking in a drug of dependence at a school or in a public place within 500 metres of a school) where—



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(i) the drug of dependence is a drug specified in Part 3 of Schedule Eleven to that Act; and

(ii) the quantity of the drug of dependence trafficked is not less than the automatic forfeiture quantity specified in column 2B of Part 3 of Schedule Eleven to that Act applicable to that drug;".


(a) in subclause (c), for "(ad)" substitute "(aca), (ad), (ada)"; and

(b) in subclause (d), for "(ad)" substitute "(aca), (ad), (ada)"; and

(c) in subclause (e), for "(ad)" substitute "(aca), (ad), (ada)".

Division 2—Amendment of the Residential Tenancies Act 1997

18 Drug-related conduct in public housing

(1) After section 250A(1)(d) of the Residential Tenancies Act 1997 insert—

"(da) intentionally caused another person to traffick in a drug of dependence by threatening to harm that person or another person or by using violence against that person or another person; or

(db) intentionally permitted another person to use those premises or the common area for—

(i) trafficking in a drug of dependence; or

(ii) cultivating a drug of dependence; or".

(2) In section 250A(3) of the Residential Tenancies Act 1997, in the definition of preparatory item,



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for "manufacture" substitute "trafficking".



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Part 4—Repeal of amending Act19 Repeal of amending Act

This Act is repealed on 20 October 2017. 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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http://www.legislation.vic.gov.au/

† Minister's second reading speech—

Legislative Assembly: 11 November 2015

Legislative Council: 26 November 2015

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 to provide for further offences in relation to drugs of dependence, to consequentially amend the Confiscation Act 1997 and other Acts and for other purposes."

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