Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 9 - DANGERS TO THE COMMUNITY  

Part 9.2 - Psychoactive substances  

Division 320 - Psychoactive substances  

SECTION 320.3   Importing substances represented to be serious drug alternatives  

(1)  
A person commits an offence if:


(a) the person imports a substance; and


(b) at the time of the importation, the presentation of the substance includes an express or implied representation that the substance is a serious drug alternative.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

(2)  
For the purposes of paragraph (1)(b), the presentation of a substance includes, but is not limited to, matters relating to:


(a) the name of the substance; and


(b) the labelling and packaging of the substance and


(c) any advertising or other informational material associated with the substance.

(3)  
This section does not apply to a substance if it is:


(a) food (within the meaning of the Food Standards Australia New Zealand Act 1991 ) for which:


(i) there is a standard (within the meaning of that Act); or

(ii) in the form in which the substance is presented, there is a tradition in Australia and New Zealand of using the substance as food for humans; or


(b) goods that are listed goods, or registered goods, within the meaning of the Therapeutic Goods Act 1989 ; or


(c) therapeutic goods that are:


(i) exempt goods (within the meaning of that Act); or

(ii) exempt under section 18A of that Act; or

(iii) the subject of an approval or authority under section 19 of that Act; or

(iv) the subject of an approval under section 19A of that Act; or


(d) a substance or mixture of substances that is a chemical product (within the meaning of the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 ), and that:


(i) is a registered chemical product (within the meaning of that Code); or

(ii) is a reserved chemical product (within the meaning of that Code); or

(iii) is an exempt chemical product (within the meaning of subsection 69B(2) of the Agricultural and Veterinary Chemicals (Administration) Act 1992 ); or

(iv) is imported into Australia with the written consent of the Australian Pesticides and Veterinary Medicines Authority under subsection 69B(1B) of that Act; or


(e) a substance or mixture of substances that is an active constituent (within the meaning of that Code) for a proposed or existing chemical product (within the meaning of that Code), and that:


(i) is an approved active constituent (within the meaning of that Code); or

(ii) is an exempt active constituent (within the meaning of subsection 69B(2) of the Agricultural and Veterinary Chemicals (Administration) Act 1992 ); or

(iii) is imported into Australia with the written consent of the Australian Pesticides and Veterinary Medicines Authority under subsection 69B(1B) of that Act; or


(f) prescribed by, or included in a class of substances prescribed by, the regulations.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

(4)  
In a prosecution for an offence under subsection (1), it is not necessary to prove that:


(a) the representation of the substance to be a serious drug alternative related to a particular serious drug; or


(b) the defendant intended to cause any person to believe that the substance:


(i) was a particular serious drug; or

(ii) has a psychoactive effect that is the same as or similar to a particular serious drug; or

(iii) is a lawful alternative to a particular serious drug; or


(c) the defendant knew, or was reckless as to:


(i) the particular identity of the substance, or

(ii) whether the substance has a particular psychoactive effect.



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