Memorandum – Law on Synthetic / Psychoactive Drugs and Loopholes

Memorandum

General Information

What are synthetic/psychoactive Drugs?

Synthetic Drugs are designed to copy the effects of illegal drugs such as cannabis, cocaine and ecstasy. They are made up of new chemical substances to substitute the ones that are banned to avoid legal ramifications.

Psychoactive Drugs or psychotropic substances are chemical substances that act primarily on the central nervous system where it alters the brain function, resulting in temporary changes in perception, mood, consciousness and behavior.

Note: synthetic/psychoactive drugs do not have a long lasting effect on the body. An individual can take such substances of an evening and will be clear if tested the next morning at work.

Issue

There have been loopholes in the legislation of each state as the law only banned specific ingredients and formulas. Manufacturers would tweak the chemical formula and introduce chemical derivatives of the banned substances to sidestep legislation and stay ahead of authorities.

The changes to the legislation in all states moves towards a precautionary approach being taken so that the substances no longer have to be analysed and proven to contain the compounds that are already banned.[1]

 

Western Australia

Misuse of Drugs Act 1981 (WA)

The Misuse of Drugs Act 1981 (WA) is the current legislation in WA regarding the misuse of certain drugs and plants including the possession, sale, supply, manufacture, cultivation and trafficking of such drugs and plants

Schedule 1 bans specific substances, including:

  • Cocaine, ecgonine, heroin, morphine and their respective salts
  • Opium
  • Any preparation, admixture, extract, or other substance containing not less than
    • 2% of morphine, the percentage of morphine being for the purpose of this item calculated as in respect of anhydrous morphine; or
    • 1% of cocaine or ecgonine
  • Any derivative of cocaine
  • Cannabis or cannabis resin or any other cannabis derivative

Penalties for possession of the above are set out in section 14.

Penalties for sale/supply set out in section 15 & 17.

Misuse of Drugs Amendment (Psychoactive Substances) Bill 2015

On 15 October 2015 the Misuse of Drugs Amendment (Psychoactive Substances) Bill 2015 was passed to amend the Misuse of Drugs Act 1981 (WA), to regulate the manufacture, sale, supply and promotion of psychoactive substances. The amendments are broad.

The amendment to the legislation, inserts a new passage, Part IIIB into the Misuse of Drugs Act 1981 (WA).

Section 8P of Part IIIB, provides that if the substance is represented in any way as being a psychoactive substance (eg if a person promotes or pretends they have a psychoactive substance) it is taken to be a psychoactive substance and the person representing this can be charged.

Section 8Q of Part IIIB, provides that manufacturing, selling or supplying a psychoactive substance holds penalties of $48,000.00 and/or 4 years jail or both

Section 8R of Part IIIB, provides that promoting/advertising of psychoactive substances carries a fine of $24 000 or imprisonment for 2 years or both.

Section 8T of Part IIIB, gives officers power to seize the product and prosecute owners for selling, supplying and advertising

 

New South Wales

Drug Misuse and Trafficking Act 1985 (NSW)

The Drug Misuse and Trafficking Act 1985 (NSW) prohibits the cultivation, manufacture, supply, possession and use of certain drugs. It has allowed a loophole as synthetic drug producers can adapt the chemical composition of synthetic drugs to evade specific regulatory bans.

It is an offence under section 24(1) to manufacture, produce, or knowingly to take part in the manufacture or production of a prohibited drug which carries a penalty (on indictment) of 15 years and/or 2,000 penalty units where the offence involves less than a commercial quantity: s 32(1).

To manufacture, produce, or knowingly to take part in the manufacture or production of not less than the commercial quantity of a prohibited drug is an offence under section 24(2) which carries a penalty of 20 years and/or 3,500 penalty units: s 33(2). Where not less than a “large commercial quantity” is involved the penalty is life imprisonment and/or 5,000 penalty units: s 33(3).

Supplying or knowingly taking part in the supply of prohibited drugs is an offence under section 25(1) which carries a penalty of 10 years imprisonment and/or 2000 penalty units where the offence involves less than a commercial quantity and relates to cannabis plant/leaf. In other cases not relating to cannabis plant/leaf, the penalty is 15 years and/or 2000 penalty units: s 32(1).

Supplying or knowingly taking part in the supply of not less than a commercial quantity is an offence under section 25(2) which carries a penalty of 15 years imprisonment and/or 3,500 penalty units where the offence relates to cannabis plant/leaf. In other cases, the penalty is 20 years and/or 3,500 penalty units: s 33(2). Where not less than a “large commercial quantity” is involved the penalty is 20 years imprisonment and/or 5,000 penalty units where the offence relates to cannabis plant/leaf. In other cases, the penalty is life imprisonment and/or 5,000 penalty units: s 33(3).

Schedule 1 adopts a quantity-based penalty regime and specifies over 240 prohibited drugs or plants.

Analogue drugs are also prohibited under schedule 1 if in relation to the prohibited drug, they are any of the following:(a) a structural isomer having the same constituent groups as the drug,(b) a structural modification obtained in one or more of the following ways:(i) the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures,(ii) the addition of hydrogen atoms to 1 or more unsaturated bonds,(iii) the addition of 1 or more of the following groups having up to 6 carbon atoms in any alkyl residue, namely, alkoxy, cyclic diether, acyl, acyloxy, monoalkylamino and dialkylamino groups,(iv) the addition of 1 or more of the following groups having up to 6 carbon atoms in the group and being attached to oxygen, namely, alkyl, alkenyl and alkynyl groups (for example, ester groups and ether groups),(v) the addition of 1 or more of the following groups having up to 6 carbon atoms in the group and being attached to nitrogen, sulphur or carbon, namely, alkyl, alkenyl and alkynyl groups,(vi) the addition of 1 or more of the following groups, namely, halogen, hydroxy, nitro and amino groups,(vii) the replacement of 1 or more of the groups specified in subparagraphs (iii)-(vi) with 1 or more other groups so specified,(viii) the conversion of a carboxyl or an ester group into an amide group.

Poisons and Therapeutic Goods Act 1996 (NSW)

The Poisons and Therapeutic Goods Act 1996 (NSW) is also in force in NSW relating to the regulation, control and prohibition of the supply and use of poisons, restricted substances, drugs of addiction, certain dangerous drugs and certain therapeutic goods.

Section 8, refers to the NSW Poisons List. The List adopts the ten Schedules of the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP or Poisons Standard) as in force at any time.[2] The poisons standard is determined by the Commonwealth.[3]

Drugs and Poisons Legislation Amendment (New Psychoactive and other Substances) Act 2013

The Drugs and Poisons Legislation Amendment (New Psychoactive and other Substances) Act 2013 proposed amendments to the current legislations to capture psychoactive substances.

The amendments insert a new Part 2C to the Drug Misuse and Trafficking Act 1985 (NSW), creating offences for possession, supply, manufacture and advertising psychoactive substances.

Under section 36ZF & 36ZG of Part 2C, supply, manufacturing or advertisement of any psychoactive substance is now prohibited regardless of any usage instructions that the substance is not psychoactive or is not intended for human consumption, with maximum penalty of 20 penalty units or imprisonment for 2 years, or both.

Section 40 has also been inserted and provides that if a substance is represented as being a psychoactive substance for the purpose of supply it will be taken to be a psychoactive substance

The amendments also amend the Poisons and Therapeutic Goods Act 1996 (NSW) by adding further substances to the Poisons List in a ninth schedule.[4] The ninth schedule contains the substances in the current Poisons Standard within the meaning of part 6-3, Scheduling of Substances, of the Commonwealth Therapeutic Goods Act 1989. Further, the Drug Misuse and Trafficking Act 1985 is amended to prohibit the possession, manufacture and production of schedule 9 substances other than prohibited drugs, unless authorised under the Poisons Act.

 

Victoria

Drugs, Poisons and Controlled Substances Act 1981 (VIC)

Drugs and poisons are controlled in Victoria under the Drugs, Poisons and Controlled Substances Act 1981 (VIC) and also Drugs, Poisons and Controlled Substances Regulations 2006.

Drugs and poisons are defined under the Act as being in the Poisons Code or in the Commonwealth Standard for the Uniform Scheduling of Drugs and Poisons. Only these defined substances are controlled. They include:

  • prescription medicines
  • pharmacy-only medicines
  • drugs of dependence
  • many household, industrial and agricultural chemicals.[5]

Drugs of dependence in Schedule 11

Synthetic cannabinoids are controlled as drugs of dependence in Schedule 11 or as Schedule 9 poisons.

No person in Victoria is authorised to possess or supply any of the individually listed synthetic cannabinoids or their derivatives, the chemical classes of synthetic cannabinoids, or synthetic cannabinomimetics. Consumer products known to contain synthetic cannabinoids and others advertised as ‘legal highs’ cannot be legally possessed or supplied in Victoria.

Eight individual synthetic cannabinoids and their derivatives, and eight chemical classes of synthetic cannabinoids were added permanently as drugs of dependence to Schedule 11 to the Act on 8 November 2013. Another three synthetic cannabinoids and derivatives were added via the Drugs, Poisons and Controlled Substances (Drugs of Dependence – Synthetic Cannabinoids) Regulations 2013 on 11 December 2013. There are significant penalties for possession and for more serious offences, such as trafficking.[6] This captures all currently known synthetic cannabinoids, as well as emerging synthetic substances that fit within the identified classes.

Classes of synthetic cannabinoids are already controlled in Victoria as schedule 9 poisons under the national poisons standard and hence the unauthorised supply, possession and use of these substances is prohibited under Victoria’s poisons control regime. (similar provision now exist in NSW under the amendments to the Poisons and Therapeutic Goods Act 1996 (NSW)).

It is an offence under section 73 of the Drugs, Poisons and Controlled Substances Act to possess a drug of dependence.

Legal Loophole

Current laws in VIC ban the individually listed synthetic cannabinoids or their derivatives, the chemical classes of synthetic cannabinoids, or synthetic cannabinomimetics under schedule 11. Consumer products known to contain synthetic cannabinoids are not legal.

I.e. synthetic drugs based on their chemical structure are illegal.

Manufacturers can get around this by tweaking the formula of products after they are banned to create products not on the banned list.

Drugs, Poisons and Controlled Substances Miscellaneous Amendment Bill 2017

On 8 March 2017, Drugs, Poisons and Controlled Substances Miscellaneous Amendment Bill 2017 was introduced.

First Reading Passed Date: 03/08/2017

Second Reading Date Moved: 03/09/2017

The Bill intends to amend the Drugs, Poisons and Controlled Substances Act 1981 (VIC) to insert new offences prohibiting the production, sale, commercial supply and advertisement of substances that either have a psychoactive effect when consumed, or are represented as having such an effect (subject to appropriate exclusions). ie apply a blanket ban similar to current laws in WA and NSW.

Will apply to substances based on their effects, or purported effects, when consumed and will compliment current laws on drugs of dependence.

Section 56E of the Bill will make it an offence to sell or supply psychoactive substances that a person knows or reasonably suspects is a psychoactive substance, and the penalty is 240 penalty units or 2 years imprisonment or both, or 1200 penalty units for bodies corporate.

Section 56F(1) makes it an offence for a person to 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 and subsection (2) applies where a person displays or causes or permits 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. The penalty is 240 penalty units or 2 years imprisonment or both, or 1200 penalty units for bodies corporate.

The amendments will also add additional substances to schedule 11.

In addition, commercial trafficable quantities will be significantly reduced with amendments to section 70(1), being:

  • for “800 grams” (where secondly occurring) substitute “450 grams”;
  • for “1 kilogram for methylamphetamine” substitute “750 grams for methylamphetamine”;
  • for “800/1000″ (where secondly occurring) substitute ” 450/750″;
  • for “4 20 /5″ (where secondly occurring) substitute ” 3 /5″;
  • for “11/5 or 2·2″ substitute ” 10/5 or 2″.

 

Summary

The proposed new laws on psychoactive drugs in Victoria appear to be the same/similar as the amendments to legislation in WA and NSW that is now in force regarding psychoactive drugs.

Similar laws already exist in Victoria in relation to the supply/possession of individually listed synthetic cannabinoids or their derivatives, the chemical classes of synthetic cannabinoids, or synthetic cannabinomimetics. However, the new proposed laws would be wider (capturing substances based on their effects) and will compliment the current laws.

The second reading of new proposed VIC law is set for 3 September 2017. Following this there still needs to be a third reading (if necessary) and then presented for Royal Asset. I don’t expect it to come into operation until at least October/November this year.

Encl.

  1. List of Principal Amendments – Drugs, Poisons and Controlled Substances Miscellaneous Amendment Bill 2017
  2. Explanatory Memorandum – Drugs, Poisons and Controlled Substances Miscellaneous Amendment Bill 2017

[1]http://www.abc.net.au/news/2015-05-19/synthetic-drug-laws-amended-to-restrict-sale-and-supply/6481206

[2] http://www.health.nsw.gov.au/pharmaceutical/pages/legislation.aspx

[3] https://www.tga.gov.au/publication/poisons-standard-susmp

[4] http://23.101.218.132/Prod/parlment/hansart.nsf/V3Key/LC20130918052?open&refNavID=HA8_1

http://www.police.nsw.gov.au/__data/assets/pdf_file/0006/274740/Synthetic-Drugs-Outlawed-Under-New-Legislation-20131007_.pdf

[5] https://www2.health.vic.gov.au/alcohol-and-drugs/aod-policy-research-legislation/aod-legislation/drugs-and-poisons-act

[6] https://www2.health.vic.gov.au/public-health/drugs-and-poisons/drugs-poisons-legislation/synthetic-cannabinoids

Leave a Reply

Your email address will not be published. Required fields are marked *