Drugs 1
Misuse Amendment
DRUGS MISUSE AMENDMENT
BILL 1995
EXPLANATORY NOTES
GENERAL OUTLINE
OBJECTIVES OF THE LEGISLATION
The objective of the legislation is to amend the Drugs Misuse Act 1986 to
allow recording of particulars of persons and companies purchasing
chemicals which can be used to manufacture illicit drugs. This will enable
police and environmental health officers to identify the purchasers of certain
prescribed chemicals. The recording of identification particulars will assist
in tracing the supply of chemicals and will provide a deterrent to their
purchase by persons involved in illicit drug manufacture.
REASONS FOR THE BILL
The abuse of amphetamine drugs is a growing problem throughout
Australia. In addressing this increase in drug abuse, the National Working
Party on Amphetamine Control recommended that a uniform approach be
adopted by all Australian States and Territories in relation to the
implementation of legislation to control chemicals which can be used to
produce illicit drugs. Such chemicals are referred to as controlled
substances.
CONSULTATION
Consultation has been undertaken with Queensland representatives of
several relevant industry organisations; the Australian Veterinary
Association Ltd; the Pharmacy Guild of Australia (Queensland Branch); the
Australian Medical Association (Queensland Branch); and relevant
government departments.
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Drugs Misuse Amendment
In general, all parties to the consultation process have indicated their
support for the proposed amendments.
NOTES ON PROVISIONS
This is a Bill for an Act to amend the Drugs Misuse Act 1986 and for
other purposes.
Clause 1 provides for the short title of the Bill.
Clause 2 provides for the commencement of the Bill.
Clause 3 states the Drugs Misuse Act 1986 is the principal legislation
amended by this Act.
Clause 4 applies sections 43K and 43L (procedure after thing seized) to
anything removed, seized or retained under "Part 3--Powers to Search
etc." of the Drugs Misuse Act 1986. Basically, Part 3 provides, amongst
other things, a police officer with the power to search any vehicle and any
thing found in a vehicle, on a person, or in a place, and seize anything that
may afford evidence of an offence under Part 2, or be liable for forfeiture
under Part 5.
This clause allows a person who would be entitled to the seized thing if it
was not in a police officer's possession, to inspect it and, if it is a document,
to take extracts from or make copies of it. The police officer may also make
copies or extracts of documents which are seized. The police officer must
return the seized thing at the end of 6 months unless prosecution
proceedings have commenced, or immediately if the officer stops being
satisfied that its retention is required as evidence.
This clause does not however apply to sections 14(7), 15(8), 15(9), and
18(5) of the Drugs Misuse Act 1986. These provisions relate to return of
seized items, where grounds of seizure was possible forfeiture under Part 5,
and secondly circumstances where clothing may be seized for examination.
Clause 5 inserts a new Part 5A--"Controlled Substances Information
Requirements" and provides for new sections 43A to 43V.
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Drugs Misuse Amendment
PART 5A--CONTROLLED SUBSTANCES
INFORMATION REQUIREMENTS
Section 43A defines the terms for the Part. Those terms are "authorised
officer", "controlled substance", "environmental health officer", "executive
officer", "obstruct", "official identity card", "prescribed documents",
"register", "relevant transaction", and "supply".
Section 43B limits the application of the provisions of Part 5A to the
supply of a controlled substance under a relevant transaction.
"Controlled substance" is defined in section 43A to mean a substance
listed in Schedule 6. The substance looses its character as a controlled
substance when it is compounded with other substances not included in
Schedule 6.
"Relevant transaction" is defined in section 43A. This definition refers to
the meaning given under section 43C.
Section 43C provides a relevant transaction for the supply of a controlled
substance is a transaction for the supply of the substance by a person to
anyone else in the ordinary course of the person's business. The meaning of
a relevant transaction may also be expanded by Regulation.
Section 43D sets out the requirements the supplier of a controlled
substance under a relevant transaction must satisfy when supplying a
controlled substance to a recipient. These requirements include: the
obtaining and keeping of prescribed documents; the obtaining of evidence
of the recipient's identity; and the keeping of a register of the supply, or any
loss or theft of a controlled substance. However, this section is subject to
section 43F, which deals with the liability of an employee of the supplier.
Section 43D in effect allows for the monitoring of relevant transactions.
Section 43E provides that the owner or a person in possession of a
controlled substance, for the purpose of supply under a relevant transaction,
must report a loss or theft of that substance to a police officer within 2 days
of discovery. However this section is subject to section 43F, which deals
with liability of an employees.
Section 43F sets out the employee's liability for an intentional breach or
recklessness in providing controlled substance information requirements,
when committed in the ordinary course of that persons employment.
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Drugs Misuse Amendment
Controlled substance information requirements refer to the supply of
controlled substances under relevant transactions(section 43D), and
reporting loss or theft of controlled substances (section 43E).
To be an employee to whom this section applies, the employee must be a
person who in the ordinary course of employment, has the task of
complying with the controlled substance information requirements for their
employer.
In effect, this section places liability upon the person who is physically
responsible for ensuring that the necessary details are recorded when a
relevant transaction takes place. The employee will not be liable if the failure
to record details was the result of an honest and reasonable mistake.
Section 43G provides for an offence, to give in an order for supply, a
false name or address, or to give false evidence of the identity of the person
to be supplied.
This section is aimed at the non-legitimate purchaser who provides false
information in order to escape the monitoring requirements of this Part.
Section 43H requires the authorised officer when exercising power under
this Part, to produce an official identity card for inspection, or to display the
official identity card so that it is clearly visible. Where production or display
of an official identity card is impractical, it must be done at the first
reasonable opportunity. This section does not apply to a police officer in
uniform.
This will enable suppliers of controlled substances to satisfy themselves
that the person is in fact an authorised officer under the Act.
Section 43I sets out the authorised officer's powers of entry and
inspection. Entry may be made into parts of the business premises open to
the public at a time when that part is in fact open to the public, or with the
consent of the person to any other part of the premises. The power of entry
does not bestow any greater power of entry upon an authorised officer than
that which exists for any other member of the public.
When on the supplier's premises, the authorised officer may require the
production of the register or other prescribed document, and may inspect,
take extracts from, and make copies of the register or prescribed
documents. The authorised officer may also inspect, examine, photograph
or film anything stored at the premises that may be a controlled substance.
In the process of exercising powers under this Part an authorised officer
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Drugs Misuse Amendment
may require reasonable help from the supplier. Failure by the supplier to
comply with this section without reasonable excuse constitutes an offence.
Section 43J provides when an authorised officer may seize things that are
evidence of the commission of an offence against this Part.
Section 43K requires that an authorised officer who seizes a thing, give a
receipt which generally describes each thing seized and the condition of each
thing, to the person from whom the thing was seized as soon as practicable
after the seizure of the thing. The section further provides that if it is not
practical for the authorised officer to give a receipt to the person from
whom the thing was seized, then the officer must leave the receipt in a
conspicuous and secure place at the place of seizure.
Section 43L permits a person who would normally be entitled to a thing,
except for its seizure under section 43J, to inspect it. If it is a document, the
person normally entitled to the document may take extracts from or make
copies of it.
The authorised officer may also make copies or extracts of documents
which are seized.
The authorised officer must return the seized thing at the end of 6 months
unless prosecution proceedings have commenced, or if immediately the
officer stops being satisfied that its retention as evidence, is required.
Section 43M provides that if the owner of a seized thing (pursuant to
section 43J) is convicted of an offence for which the thing seized was
retained as evidence, the court may order its forfeiture to the State.
Section 43N provides that a thing forfeited under section 43L may be
destroyed or disposed of as directed by the Commissioner.
Section 43O provides that an authorised officer may require a person
found committing an offence against this Part, or a person suspected on
reasonable grounds of having committed an offence against this Part, to
state that person's name and address.
The authorised officer must caution the person, that failure to state name
or address without reasonable excuse is an offence. The authorised officer
may also require evidence of correctness of name or address, if it is
suspected on reasonable grounds, that the name or address is false. It will
be a defence, if the person has a reasonable excuse for not complying with
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Drugs Misuse Amendment
the requirement to state name or address or provide evidence of correctness
thereof.
If the person required to give a name or address is also charged with
other offences under this Part for which they are later exonerated, then they
will also be exculpated from an offence under this section.
Section 43P provides that a police officer may arrest a person when that
person fails to provide evidence of the correctness thereof, but only where a
proceeding against the person by way of complaint and summons would
not be effective.
Section 43Q provides for an offence when an authorised officer is
obstructed in the execution of duty. This section does not restrict the use of
powers by a police officer for "Assault, etc." under the Police Service
Administration Act.
Section 43R relates to responsibilities for acts or omissions of
representatives of suppliers.
"Representatives" and "State of Mind" are defined in the provision.
"Representatives" means an executive officer, employee or agent of the
corporation, or an employee or agent of an individual. "State of mind" is
defined to include the person's knowledge, intention, opinion, belief or
purpose and the person's reasons for the intention, opinion, belief or
purpose.
Where in a proceeding for an offence against this Part it is relevant to
show a person's state of mind for an act or omission, it is enough to show
that the act or omission was done within the scope of the representative's
actual or apparent authority and the representative had the state of mind.
Actual and apparent authority are given their ordinary meaning. For
example actual authority may be shown by expressed verbal or written
authority to do something on behalf of the corporation or individual. It
would also extend to incidental powers of the expressed power. Apparent
authority is where the corporation or individual by their conduct represents
to a third party that the representative has authority, for example, to sell the
corporation's or individual's controlled substances.
The corporation or individual would be estopped from denying to that
third party the representatives "apparent" authority, unless the corporation
or individual took all reasonable steps to prevent the act or omission.
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Drugs Misuse Amendment
Section 43S requires executive officers of a body corporate to take action
to ensure that the corporation complies with this Part.
The corporation's executive officers become liable when the corporation
fails to comply with this Part.
Evidence that a corporation has been convicted for an offence against a
provision in this Part is evidence that the corporation's executive officers
have committed an offence of failing to ensure the corporation complies
with the relevant provision. This would usually mean that a successful
prosecution of the corporation would be obtained before pursuing a
prosecution of the corporation's executive officers.
A defence is available to an executive officer should that person, being in
a position to influence the conduct of the corporation in relation to the
offence, take all reasonable steps to ensure that the corporation complies
with the provisions in this Part.
It is also a defence if the executive officer where that person is not in a
position to influence the corporation in relation to the offence.
In effect an executive officer who is in a position to do something about
preventing the corporation from committing an offence against this Part will
have a defence if this person takes such action. Likewise should the
executive officer not be in a position to do something about preventing the
corporation from committing an offence against this Part, then that person
too will have a defence.
Section 43T provides for compensation from the State, where the
exercise of a power under this Part has caused an expense or loss.
Compensation must be just in the particular case before it is ordered by a
court of competent jurisdiction.
Section 43U provides an evidentiary provision to assist with the
identification of controlled substances. Where the container containing the
substance has a label upon it indicating that substance is a the controlled
substance and an authorised officer believes (and the court considers such
belief reasonable) that the container contained a controlled substance, then in
the absence of evidence to the contrary or the notice served under section
43U, the substance will be proved to be a controlled substance.
This saves the costly and time consuming procedure of having to analyse
a substance prior to a court proceeding ...