Criminal Code Act 1995
Section 3
CHAPTER 9 - DANGERS TO THE COMMUNITY Part 9.1 - Serious drug offences
View history note
Hide history notePt 9.1 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
Div 301 substituted by No 167 of 2012, s 3 and Sch 1 item 16, applicable in relation to offences against Part
9.1
of the
Criminal Code
that are committed on or after 29 May 2013. No 167 of 2012, s 3 and Sch 1 item 24 contains the following transitional provisions:
Sections 301.7 and 301.8 of the
Criminal Code
, as so amended, provide that some conditions must be satisfied before new regulations can be made listing a substance or plant as belonging to a Criminal Code class. For the commencement of this item, see section 2 of this Act.
24 Transitional
-
listing of existing serious drugs and precursors by regulation
(1)
This item applies in relation to a substance or plant that, immediately before the commencement of this item, was listed under Division 314 of the
Criminal Code
as belonging to any of the following classes of substances or plants (the substance
'
s or plant
'
s
Criminal Code class
):
(a)
a controlled drug;
(b)
a controlled plant;
(c)
a controlled precursor;
(d)
a border controlled drug;
(e)
a border controlled plant;
(f)
a border controlled precursor.
(2)
Sections 301.7 and 301.8 of the
Criminal Code
, as amended by Part 1 of this Schedule, do not apply in relation to a regulation made for the purposes of Subdivision A of Division 301 of the
Criminal Code
(as so amended) listing the substance or plant as belonging to the same Criminal Code class as that to which it belonged immediately before the commencement of this item.
Note 1:
Note 2:
Div 301 formerly read:
Division 301 - Listing additional drugs, plants and precursors
Subdivision A - Interim regulations
SECTION 301.1 Interim regulations - controlled drugs and controlled plantsHistorySubdiv 301 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
(1)
The regulations may prescribe:
(a) a substance, other than a growing plant, as a controlled drug; or
(b) a growing plant as a controlled plant;if the conditions set out in subsection (2) are met.
(2)
The conditions are as follows:
(a) the Minister must be satisfied that taking the substance or plant concerned:
(i) would create a substantial risk of death or serious harm; or
(ii) would have a physical or mental effect substantially similar to that caused by taking a substance or plant already listed or described in section 314.1 or 314.2 ;
(b) the Minister must be satisfied that there is a substantial risk that the substance or plant will be taken without appropriate medical supervision.
(3)
However, the regulations must not prescribe a particular substance or plant under this section for a period that exceeds, or for periods that in total exceed, 12 months.HistoryS 301.1 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.2 Interim regulations - controlled precursors
(1)
The regulations may prescribe a substance (including a growing plant) as a controlled precursor if the condition set out in subsection (2) is met.
(2)
The condition is that the Minister must be satisfied that there is a substantial risk that the substance concerned will be used to unlawfully manufacture a controlled drug.
(3)
However, the regulations must not prescribe a particular substance under this section for a period that exceeds, or for periods that in total exceed, 12 months.HistoryS 301.2 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.3 Interim regulations - border controlled drugs and border controlled plants
(1)
The regulations may prescribe:
(a) a substance, other than a growing plant, as a border controlled drug; or
(b) a growing plant as a border controlled plant;if the conditions set out in subsection (2) are met.
(2)
The conditions are as follows:
(a) the Minister must be satisfied that taking the substance or plant concerned:
(i) would create a substantial risk of death or serious harm; or
(ii) would have a physical or mental effect substantially similar to that caused by taking a substance or plant already listed or described in section 314.4 or 314.5 ;
(b) the Minister must be satisfied that there is a substantial risk that the substance or plant will be taken without appropriate medical supervision.
(3)
However, the regulations must not prescribe a particular substance or plant under this section for a period that exceeds, or for periods that in total exceed, 12 months.HistoryS 301.3 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.4 Interim regulations - border controlled precursors
(1)
The regulations may prescribe a substance (including a growing plant) as a border controlled precursor if the condition set out in subsection (2) is met.
(2)
The condition is that the Minister must be satisfied that there is a substantial risk that the substance concerned will be used to unlawfully manufacture a controlled drug.
(3)
However, the regulations must not prescribe a particular substance under this section for a period that exceeds, or for periods that in total exceed, 12 months.HistoryS 301.4 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.5 Interim regulations - commercial, marketable and trafficable quantities
(1)
The regulations may prescribe:
(a) a quantity of a controlled drug or controlled plant as a commercial, marketable or trafficable quantity of the drug or plant; or
(b) a quantity of a controlled precursor as a commercial or marketable quantity of the precursor.
(2)
However, the regulations must not prescribe:
(a) a commercial quantity of a particular controlled drug, controlled plant or controlled precursor; or
(b) a marketable quantity of a particular controlled drug, controlled plant or controlled precursor; or
(c) a trafficable quantity of a particular controlled drug or controlled plant;for a period that exceeds, or for periods that in total exceed, 12 months.
(3)
If:
(a) there is no commercial, marketable or trafficable quantity specified in section 314.1 for a substance listed or described as a controlled drug in that section; or
(b) there is no commercial, marketable or trafficable quantity specified in section 314.2 for a substance listed or described as a controlled plant in that section; or
(c) there is no commercial or marketable quantity specified in section 314.3 for a substance listed or described as a controlled precursor in that section;regulations under subsection (1) may prescribe such a quantity of the drug, plant or precursor.
(4)
The regulations may prescribe a quantity of a border controlled drug, border controlled plant or border controlled precursor as a commercial or marketable quantity of the drug, plant or precursor.
(5)
However, the regulations must not prescribe:
(a) a commercial quantity of a particular border controlled drug, border controlled plant or border controlled precursor; or
(b) a marketable quantity of a particular border controlled drug, border controlled plant or border controlled precursor;for a period that exceeds, or for periods that in total exceed, 12 months.
(6)
If:
(a) there is no commercial or marketable quantity specified in section 314.4 for a substance listed or described as a border controlled drug in that section; or
(b) there is no commercial or marketable quantity specified in section 314.5 for a substance listed or described as a border controlled plant in that section; or
(c) there is no commercial or marketable quantity specified in section 314.6 for a substance listed or described as a border controlled precursor in that section;regulations under subsection (4) may prescribe such a quantity of the drug, plant or precursor.
HistoryS 301.5 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
Subdivision B - Emergency determinations
SECTION 301.6 Emergency determinations - controlled drugs and controlled plantsHistorySubdiv B inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
(1)
The Minister may, by legislative instrument, determine that:
(a) a substance, other than a growing plant, is a controlled drug; or
(b) a growing plant is a controlled plant.
(2)
The Minister must not make a determination under subsection (1) unless he or she is satisfied:
(a) that taking the substance or plant concerned:
(i) would create a substantial risk of death or serious harm; or
(ii) would have a physical or mental effect substantially similar to that caused by taking a substance or plant already listed or described in section 314.1 or 314.2 ; and
(b) that there is an imminent and substantial risk that the substance or plant will be:
(i) taken without appropriate medical supervision; or
(ii) imported and made available for taking without appropriate medical supervision.Note:
Sections 301.11 and 301.12 set out general rules for emergency determinations.
HistoryS 301.6 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.7 Emergency determinations - controlled precursors
(1)
The Minister may, by legislative instrument, determine that a substance (including a growing plant) is a controlled precursor.
(2)
The Minister must not make a determination under subsection (1) unless he or she is satisfied that there is an imminent and substantial risk that the substance will be:
(a) used to unlawfully manufacture a controlled drug; or
(b) imported and made available to be used in unlawfully manufacturing a controlled drug.Note:
Sections 301.11 and 301.12 set out general rules for emergency determinations.
HistoryS 301.7 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005
SECTION 301.8 Emergency determinations - border controlled drugs and border controlled plants
(1)
The Minister may, by legislative instrument, determine that:
(a) a substance, other than a growing plant, is a border controlled drug; or
(b) a growing plant is a border controlled plant.
(2)
The Minister must not make a determination under subsection (1) unless he or she is satisfied:
(a) that taking the substance or plant concerned:
(i) would create a substantial risk of death or serious harm; or
(ii) would have a physical or mental effect substantially similar to that caused by taking a substance or plant already listed or described in section 314.4 or 314.5 ; and
(b) that there is an imminent and substantial risk that the substance or plant will be:
(i) taken without appropriate medical supervision; or
(ii) imported and made available for taking without appropriate medical supervision.Note:
Sections 301.11 and 301.12 set out general rules for emergency determinations.
HistoryS 301.8 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.9 Emergency determinations - border controlled precursors
(1)
The Minister may, by legislative instrument, determine that a substance (including a growing plant) is a border controlled precursor.
(2)
The Minister must not make a determination under subsection (1) unless he or she is satisfied that there is an imminent and substantial risk that the substance will be:
(a) used to unlawfully manufacture a controlled drug; or
(b) imported and made available to be used in unlawfully manufacturing a controlled drug.Note:
Sections 301.11 and 301.12 set out general rules for emergency determinations.
HistoryS 301.9 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.10 Emergency determinations - commercial, marketable and trafficable quantities
(1)
The Minister may, by legislative instrument, determine that:
(a) a quantity of a controlled drug or controlled plant is a commercial, marketable or trafficable quantity of the drug or plant; or
(b) a quantity of a controlled precursor is a commercial or marketable quantity of the precursor.
(2)
If:
(a) there is no commercial, marketable or trafficable quantity specified in section 314.1 for a substance listed or described as a controlled drug in that section; or
(b) there is no commercial, marketable or trafficable quantity specified in section 314.2 for a substance listed or described as a controlled plant in that section; or
(c) there is no commercial or marketable quantity specified in section 314.3 for a substance listed or described as a controlled precursor in that section;the Minister may, under subsection (1), determine such a quantity of the drug, plant or precursor.
(3)
The Minister may, by legislative instrument, determine that a quantity of a border controlled drug, border controlled plant or border controlled precursor is a commercial or marketable quantity of the drug, plant or precursor.
(4)
If:
(a) there is no commercial or marketable quantity specified in section 314.4 for a substance listed or described as a border controlled drug in that section; or
(b) there is no commercial or marketable quantity specified in section 314.5 for a substance listed or described as a border controlled plant in that section; or
(c) there is no commercial or marketable quantity specified in section 314.6 for a substance listed or described as a border controlled precursor in that section;the Minister may, under subsection (3), determine such a quantity of the drug, plant or precursor.
Note:
Sections 301.11 and 301.12 set out general rules for emergency determinations.
HistoryS 301.10 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.11 General rules - period of effect, publication etc.
(1)
A determination under this Subdivision has effect:
(a) from the time it is registered (within the meaning of the Legislative Instruments Act 2003 ); and
(b) for the period of 28 days from that registration or such shorter period as is specified in the determination.
(2)
However, despite paragraph (1)(b), if:
(a) the Minister has made a determination under this Subdivision; and
(b) exceptional circumstances have prevented the making of regulations to the same effect;the Minister may, by legislative instrument, extend the period during which the determination is in force by no more than 28 days.
(3)
The Minister must not make more than one determination under sections 301.6 to 301.9 in relation to a particular substance or plant.
(4)
If the Minister makes a determination under this Subdivision, the Minister must, on or before the day on which the determination is registered:
(a) make a public announcement of the determination; and
(b) cause a copy of the announcement to be published:
(i) on the internet; and
(ii) in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory.HistoryS 301.11(4) amended by No 8 of 2010, s 3 and Sch 5 item 137, by substituting " internet " for " Internet " (wherever occurring), effective 1 March 2010.
(5)
An announcement made under subsection (4) is not a legislative instrument.HistoryS 301.11 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
SECTION 301.12 General rule - inconsistency with regulations
301.12
Despite subsections 301.11(1) and (2) , a determination made under this Subdivision has no effect to the extent that it is inconsistent with a regulation made under Subdivision A .HistoryS 301.12 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
Div 301 inserted by No 129 of 2005, s 3 and Sch 1 item 1, effective 6 December 2005.
A border controlled drug is a substance, other than a growing plant, that is: (a) listed by a regulation as a border controlled drug; or (b) a drug analogue of a listed border controlled drug; or (c) determined by the AFP Minister as a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).
Note 1:
Some conditions must be satisfied before:
Note 2:
For the meaning of drug analogue , see section 301.9 .
S 301.4 amended by No 98 of 2023, s 3 and Sch 2 items 6 and 7, by substituting " (1) A " for " For the purposes of this Part, a " and substituting " 301.13(2) " for " 301.8(2) " in para (b) of note 1, effective 28 November 2023.
S 301.4 amended by No 31 of 2018, s 3 and Sch 2 item 113(7), by substituting " AFP Minister " for " Minister " in para (c), effective 11 May 2018. For transitional rules, see note under s 72.28 .
S 301.4 substituted by No 167 of 2012, s 3 and Sch 1 item 16, applicable in relation to offences against Part 9.1 of the Criminal Code that are committed on or after 29 May 2013. For former wording and transitional provisions see note under Div 301 heading.
(2)
However: (a) the regulations may provide that a listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to particular offences against this Part, or particular elements of those offences; and (b) if the regulations so provide, then the listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to those offences or elements.
S 301.4(2) inserted by No 98 of 2023, s 3 and Sch 2 item 8, effective 28 November 2023.
(3)
To avoid doubt, if a listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to particular offences against this Part, or particular elements of those offences, then a drug analogue of the listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to those offences or elements.
S 301.4(3) inserted by No 98 of 2023, s 3 and Sch 2 item 8, effective 28 November 2023.