Drug Misuse and Trafficking Act 1985 No 226

An offence under this Division shall be prosecuted summarily before the Local Court.

s 9: Am 2001 No 121, Sch 2.88 [1]; 2007 No 94, Sch 2.

(1)  A person who has a prohibited drug in his or her possession is guilty of an offence.

(2)  Nothing in this section renders unlawful the possession of a prohibited drug by—

(a)  a person licensed or authorised to have possession of the prohibited drug under the Poisons and Therapeutic Goods Act 1966,

(a1)  a person acting under a poppy licence under the Poppy Industry Act 2016,

(b)  a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the possession of the prohibited drug is for the purpose of scientific research, instruction, analysis or study,

(b1)  a person acting in accordance with a direction given by the Commissioner of Police under section 39Q,

(c)  a person for or to whom the prohibited drug has been lawfully prescribed or supplied, or

(d)  a person who—

(i)  has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and

(ii)  has the prohibited drug in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply.

s 10: Am 1986 No 47, Sch 2 (2); 1997 No 87, Sch 2 [1] [2]; 1998 No 160, Sch 1 [1]; 2009 No 106, Sch 2.8; 2016 No 6, Sch 1 [2]; 2016 No 37, Sch 1.1 [3]; 2020 No 30, Sch 2.13.

(1)  A person who has in his or her possession any item of equipment for use in the administration of a prohibited drug is guilty of an offence.

(1A)  Subsection (1) does not apply to or in respect of a hypodermic syringe or a hypodermic needle.

(1B)  Subsection (1) does not apply to or in respect of a person prescribed by the regulations, or a person who is of a class of persons prescribed by the regulations, who has in his or her possession any item of equipment that is required to minimise health risks associated with the intravenous administration of a prohibited drug.

(2)  Nothing in this section renders unlawful the possession of an item of equipment by—

(a)  a medical practitioner, dentist, veterinary practitioner, pharmacist, registered nurse or registered midwife acting in the ordinary course of his or her profession,

(b)  a member of any other prescribed profession acting in the ordinary course of that profession,

(c)  a person licensed or authorised to have possession of the item of equipment under the Poisons and Therapeutic Goods Act 1966,

(d)  a person authorised to have possession of the item of equipment by the Secretary of the Department of Health, or

(e)  a person for use in the administration of a prohibited drug lawfully prescribed or supplied.

s 11: Am 1987 No 48, Sch 7; 1987 No 145, sec 2; 1995 No 23, Sch 1.5 [1]; 2003 No 45, Sch 2.2 [4]; 2003 No 87, Sch 3.8 [2]; 2009 No 106, Sch 2.8; 2010 No 34, Sch 2.14 [2] [3].

(1)  In this section—

ice pipe means—

(a)  a device capable of being used for the administration of a prohibited drug by means of the smoking or inhaling of the smoke or fumes resulting from the heating or burning of the drug in a crystal or powder form, or

(b)  a device that is apparently intended to be such a device but that is not capable of being so used because it needs an adjustment, modification or addition,

and includes a device known as an ice pipe or a crack pipe, but does not include a device of a class or description prescribed by the regulations as not being an ice pipe for the purposes of this section.

shop includes—

(a)  so much of a building or place as is used for the sale, or supply in the course of commercial transactions, of goods, and

(b)  a stall or other structure used for such sale or supply of goods at a market or elsewhere,

but does not include anything prescribed by the regulations as not being a shop for the purposes of this section.

waterpipe means—

(a)  a device capable of being used for the administration of a prohibited drug, by means of the drawing of smoke or fumes (resulting from the heating or burning of the drug) through water or another liquid, or

(b)  a device that is apparently intended to be such a device but that is not capable of being so used because it needs an adjustment, modification or addition,

and includes a device known as a bong, but does not include a device of a class or description prescribed by the regulations as not being a waterpipe for the purposes of this section.

(2)  A person who—

(a)  sells a waterpipe or an ice pipe, or

(b)  supplies a waterpipe or an ice pipe in the course of or in connection with a commercial transaction,

is guilty of an offence.

(3)  A person who displays a waterpipe or an ice pipe—

(a)  in a shop, or

(b)  near but in connection with a shop,

is guilty of an offence, unless the person satisfies the court that the display was not for a commercial purpose.

(4)  For the purposes of this section, it is immaterial that the waterpipe or ice pipe was used or intended to be used for a purpose other than the administration of a prohibited drug.

s 11A: Ins 1987 No 156, sec 3. Am 2006 No 39, Sch 1 [1]–[3].

(1)  A person who has in his or her possession a tablet press or drug encapsulator is guilty of an offence.

(2)  It is a defence to a prosecution for an offence under subsection (1) if the defendant establishes—

(a)  that the tablet press or drug encapsulator is used in connection with an activity that is not unlawful, or

(b)  that the defendant otherwise has a reasonable excuse for possessing the tablet press or drug encapsulator.

s 11B: Ins 2006 No 107, Sch 1.15 [1]. Am 2013 No 80, Sch 6 [2]–[4]

(1)  A person who has in his or her possession a document that contains instructions for the manufacture or production of a prohibited drug is guilty of an offence.

(2)  It is a defence to a prosecution for an offence under subsection (1) if the defendant establishes—

(a)  that the defendant is licensed or authorised under the Poisons and Therapeutic Goods Act 1966 to manufacture or produce the prohibited drug to which the instructions relate, or

(b)  that the defendant is acting in accordance with an authority granted by the Director-General of the Department of Health where the Director-General is satisfied that the manufacture or production of the prohibited drug to which the instructions relate is for the purpose of scientific research, instruction, analysis or study, or

(c)  that the defendant is in possession of the document for the purposes of an activity that is not unlawful, or

(d)  that the defendant otherwise has a reasonable excuse for possessing the document.

s 11C: Ins 2007 No 57, Sch 4 [1].

(1)  A person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence.

(2)  Nothing in this section renders unlawful the administration or attempted administration by a person to himself or herself of a prohibited drug which has been lawfully prescribed for or supplied to the person.

(1)  A person who administers or attempts to administer a prohibited drug to another person is guilty of an offence.

(2)  Nothing in this section renders unlawful the administration or attempted administration of a prohibited drug to another person by—

(a)  a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or

(b)  a person authorised to do so by the Secretary of the Department of Health.

(3)  Nothing in this section renders unlawful the administration or attempted administration of a prohibited drug to a person for or to whom the prohibited drug has been lawfully prescribed or supplied.

s 13: Am 1986 No 47, Sch 2 (3); 2009 No 106, Sch 2.8.

(1)  A person who permits another person to administer or attempt to administer to him or her a prohibited drug is guilty of an offence.

(2)  Nothing in this section renders unlawful the giving of permission for the administration or attempted administration of a prohibited drug by a person for whom or to whom the prohibited drug has been lawfully prescribed or supplied.

A person who forges or fraudulently alters or utters, knowing it to be forged or fraudulently altered, a prescription of a medical practitioner, nurse practitioner, midwife practitioner or veterinary practitioner including a prohibited drug is guilty of an offence.

s 15: Am 1998 No 102, Sch 3.3 [2]; 2003 No 45, Sch 2.2 [5]; 2003 No 87, Sch 3.8 [2].

A person—

(a)  who knowingly by any false representation (whether verbal, or in writing, or by conduct)—

(i)  obtains from a medical practitioner, nurse practitioner, midwife practitioner or veterinary practitioner a prescription including a prohibited drug, or

(ii)  induces a pharmacist to dispense a forged or fraudulently altered prescription obtained in contravention of this paragraph knowing it to be forged or so altered or obtained, or

(b)  who is in actual possession of a forged or fraudulently altered prescription including a prohibited drug or a prescription obtained in contravention of paragraph (a), knowing it to be forged or so altered or so obtained,

is guilty of an offence.

s 16: Am 1998 No 102, Sch 3.3 [2]; 2003 No 45, Sch 2.2 [6]; 2003 No 87, Sch 3.8 [2].

A person who knowingly by any false representation (whether verbal, or in writing, or by conduct), obtains or attempts to obtain a prohibited drug from a medical practitioner, nurse practitioner, midwife practitioner, dentist, pharmacist or veterinary practitioner is guilty of an offence.

s 17: Am 1986 No 47, Sch 2 (4); 1998 No 102, Sch 3.3 [3]; 2003 No 45, Sch 2.2 [7]; 2003 No 87, Sch 3.8 [2].

(1)  A person who, by any representation (whether verbal, or in writing, or by conduct), obtains or attempts to obtain—

(a)  a prohibited drug, or

(b)  a prescription that includes a prohibited drug,

from an authorised person without previously informing the authorised person of the quantity of that or any other prohibited drug or prohibited drugs for which the person has obtained prescriptions from authorised persons within the period of 2 months immediately preceding the time of the representation, where the failure or refusal to inform the authorised person is made with intent to deceive the authorised person, is guilty of an offence.

(2)  In this section—

authorised person means a medical practitioner, nurse practitioner or midwife practitioner.

s 18: Subst 1986 No 47, Sch 2 (5). Am 1998 No 102, Sch 3.3 [4]–[7]; 2003 No 45, Sch 2.2 [8].

(1)  A person responsible for any premises is guilty of an offence if—

(a)  the person advertises or holds out in any way that the premises are available for use for the administration of prohibited drugs (whether or not for financial or material reward), or

(b)  the person causes, suffers or permits any other person to advertise or hold out in any way that the premises are available for use for the administration of prohibited drugs (whether or not for financial or material reward).

(2)  For the purposes of this section, a person is responsible for premises if the person is the owner, lessee or occupier of the premises, or if the person participates in the management of the premises.

(3)  This section does not apply to or in respect of a licensed injecting centre within the meaning of Part 2A.

s 18A: Ins 1999 No 67, Sch 2.

(1)  A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a Schedule 9 substance (not being a prohibited drug within the meaning of this Act) is guilty of an offence.

(2)  A person who supplies, or who knowingly takes part in the supply of, a Schedule 9 substance (not being a prohibited drug within the meaning of this Act) is guilty of an offence.

(3)  A person who has in his or her possession a Schedule 9 substance (not being a prohibited drug within the meaning of this Act) is guilty of an offence.

Maximum penalty (subsection (3)): 20 penalty units or imprisonment for 12 months, or both.

(4)  Nothing in this section renders unlawful the manufacture, production, possession or supply of a Schedule 9 substance (not being a prohibited drug) by—

(a)  a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or

(b)  a person in accordance with an authorisation given by the Secretary of the Ministry of Health under section 17D of that Act,

or renders unlawful the taking part by any other person in the manufacture, production or supply of such a substance by a person to whom paragraph (a) or (b) applies or the possession of the substance by the other person for those purposes.

s 18B: Ins 2014 No 59, Sch 1.7 [2].

(1)  A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the firstmentioned offence.

(2)  A person does not commit an offence because of this section for any act or omission that is an offence under section 43B.

s 19: Am 2012 No 97, Sch 1.7 [1].

(1)  A person who, in New South Wales, aids, abets, counsels, procures, solicits or incites the commission of an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this Division, is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the firstmentioned offence in New South Wales.

(2)  A person does not commit an offence because of this section for any act or omission that is an offence under section 43B.

s 20: Am 1998 No 149, Sch 2.7 [1]; 2012 No 97, Sch 1.7 [2].

The penalty for an offence under this Division is a fine of 20 penalty units or imprisonment for a term of 2 years, or both, except as otherwise expressly provided by this Division.

s 21: Am 1988 No 17, Sch 1 (2); 2014 No 59, Sch 1.7 [3].

(1)  Subject to the provisions of this Division and the Criminal Procedure Act 1986, an offence under this Division is to be prosecuted on indictment.

(2)    (Repealed)

s 22: Am 2001 No 121, Sch 2.88 [2]; 2006 No 39, Sch 1 [4]; 2006 No 120, Sch 2.23.

(1)  A person who—

(a)  cultivates, or knowingly takes part in the cultivation of, a prohibited plant,

(b)  supplies, or knowingly takes part in the supply of, a prohibited plant, or

(c)  has a prohibited plant in his or her possession,

is guilty of an offence.

(1A)  A person who—

(a)  cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is—

(i)  not less than the small quantity applicable to the prohibited plants, and

(ii)  less than the commercial quantity applicable to those prohibited plants, and

(b)  cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose,

is guilty of an offence.

(1B)  If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the small quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) (a), and the person is liable to punishment accordingly.

(1C)  If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the person cultivated, or knowingly took part in the cultivation of, a prohibited plant for a commercial purpose, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) (a), and the person is liable to punishment accordingly.

(2)  A person who—

(a)  cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants,

(b)  supplies, or knowingly takes part in the supply of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, or

(c)  has a number of prohibited plants in his or her possession which is not less than the commercial quantity applicable to prohibited plants,

is guilty of an offence.

(3)  If, on the trial of a person for an offence under subsection (2) (other than in relation to the cultivation of prohibited plants by enhanced indoor means), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person is liable to punishment accordingly.

(3A)  If, on the trial of a person for an offence under subsection (2) in relation to the cultivation of prohibited plants by enhanced indoor means, the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of—

(a)  an offence under subsection (1A), if the jury is satisfied that the person contravened subsection (1A), or

(b)  an offence under subsection (1) (a), if the jury is not satisfied that the person contravened subsection (1A), but is satisfied that the person contravened subsection (1) (a),

and the person is liable to punishment accordingly.

(4)  Nothing in this section renders unlawful any act relating to the cultivation, supply or possession of a prohibited plant by—

(a)  a person—

(i)  who informs the court before which the person is prosecuted that the person proposes to adduce evidence as referred to in subparagraph (ii), and

(ii)  who adduces evidence which satisfies the court that, having regard to all the circumstances, including the person’s conduct, in which the act constituting the offence was done or preparatory to the doing of the act, the person did not know or suspect and could not reasonably be expected to have known or suspected that the prohibited plant was a prohibited plant, or

(a1)  a person acting under a poppy licence or poppy permit under the Poppy Industry Act 2016, or

(b)  a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the cultivation, supply or possession of the prohibited plant is for the purpose of scientific research, instruction, analysis or study, or

(c)  a person acting in accordance with a direction given by the Commissioner of Police under section 39Q.

(5)  Where a person informs a court as referred to in subsection (4) (a) (i), evidence of any previous conviction of the person for any offence, being evidence which may intend to rebut the evidence referred to in subsection (4) (a) (ii), may, with the leave of the court, be adduced by the prosecutor.

(6)  In this section and section 23A, cultivating a prohibited plant for a commercial purpose includes cultivating the plant—

(a)  with the intention of selling it or any of its products, or

(b)  with the belief that another person intends to sell it or any of its products.

s 23: Am 1986 No 47, Sch 2 (6); 1998 No 160, Sch 1 [2]; 2006 No 57, Sch 1 [5]–[7]; 2016 No 6, Sch 1 [2]; 2016 No 37, Sch 1.1 [4]; 2020 No 30, Sch 2.13.

(1)  A person who—

(a)  cultivates, or knowingly takes part in the cultivation of, a prohibited plant by enhanced indoor means, and

(b)  exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.

(2)  A person who—

(a)  cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants by enhanced indoor means which is not less than the commercial quantity applicable to those plants, and

(b)  exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.

(3)  A person who—

(a)  cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is—

(i)  not less than the small quantity applicable to the prohibited plants, and

(ii)  less than the commercial quantity applicable to those prohibited plants, and

(b)  cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose, and

(c)  exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.

(4)  If, on the trial of a person for an offence under subsection (2), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the commercial quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of—

(a)  an offence under subsection (3), if the jury is satisfied that the person contravened subsection (3), or

(b)  an offence under subsection (1), if the jury is not satisfied that the person contravened subsection (3), but is satisfied that the person contravened subsection (1),

and the person is liable to punishment accordingly.

(5)  If, on the trial of a person for an offence under subsection (3), the jury is not satisfied that the person cultivated, or knowingly took part in the cultivation of, a prohibited plant for a commercial purpose, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person is liable to punishment accordingly.

(6)  It is a defence to a prosecution for an offence under subsection (1), (2) or (3) if the defendant establishes that the exposure of the child to the prohibited plant cultivation process, or to substances being stored for use in that process, did not endanger the health or safety of the child.

(7)  If, on the trial of a person for an offence under subsection (1), (2) or (3), the jury—

(a)  is not satisfied that a child was exposed to the cultivation of a prohibited plant by enhanced indoor means, or to substances being stored for use in such a cultivation process, or

(b)  is satisfied that the defence referred to in subsection (6) has been made out,

the jury may acquit the person of the offence charged and find the person guilty of an offence under section 23 (1) (a), (2) (a) or (1A), respectively, and the person is liable to punishment accordingly.

(8)  In this section, child means a person who is under the age of 16 years.

s 23A: Ins 2006 No 57, Sch 1 [8].

(1)  A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug is guilty of an offence.

(1A)  A person who—

(a)  manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug, and

(b)  exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,

is guilty of an offence.

(2)  A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

(2A)  A person who—

(a)  manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug, and

(b)  exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,

is guilty of an offence.

(3)  If, on the trial of a person for an offence under subsection (2) or (2A), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (1A), respectively, and the person is liable to punishment accordingly.

(3A)  It is a defence to a prosecution for an offence under subsection (1A) or (2A) if the defendant establishes that the exposure of the child to the prohibited drug manufacturing or production process, or to substances being stored for use in that manufacturing or production process, did not endanger the health or safety of the child.

(3B)  If, on the trial of a person for an offence under subsection (1A) or (2A), the jury—

(a)  is not satisfied that a child was exposed to a prohibited drug manufacturing or production process, or to substances being stored for use in such a manufacturing or production process, or

(b)  is satisfied that the defence referred to in subsection (3A) has been made out,

the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly.

(4)  Nothing in this section renders unlawful the manufacture or production of a prohibited drug by—

(a)  a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or

(a1)  a person acting under a poppy licence under the Poppy Industry Act 2016, or

(b)  a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the manufacture or production of the prohibited drug is for the purpose of scientific research, instruction, analysis or study,

or renders unlawful the taking part by any other person in the manufacture or production of a prohibited drug by a person to whom paragraph (a), (a1) or (b) applies.

(5)  In this section, child means a person who is under the age of 16 years.

s 24: Am 1986 No 47, Sch 2 (7); 2006 No 39, Sch 1 [5]–[8]; 2009 No 106, Sch 2.8; 2016 No 37, Sch 1.1 [5] [6].

(1)  A person who has possession of—

(a)  a precursor, or

(b)  a drug manufacture apparatus,

intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence.

(2)  Nothing in this section renders unlawful the possession of a precursor or drug manufacture apparatus for use in the manufacture or production of a prohibited drug by—

(a)  a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or

(a1)  a person acting under a poppy licence under the Poppy Industry Act 2016, or

(b)  a person acting in accordance with an authority granted by the Director-General of the Department of Health where the Director-General is satisfied that the manufacture or production of the prohibited drug is for the purpose of scientific research, instruction, analysis or study.

(2A)    (Repealed)

(3)  In this section—

drug manufacture apparatus means an apparatus specified or described in the regulations as a drug manufacture apparatus for the purposes of this section.

precursor means a substance specified or described in the regulations as a precursor for the purposes of this section.

s 24A: Ins 2000 No 107, Sch 1 [1]. Am 2001 No 117, Sch 8; 2006 No 39, Sch 1 [9]; 2006 No 107, Sch 1.15 [2]; 2007 No 57, Sch 4 [2] [3]; 2016 No 37, Sch 1.1 [7]–[9].

(1)  A person who has in his or her possession a precursor of a quantity not less than the quantity prescribed by the regulations in relation to that precursor is guilty of an offence.

(2)  It is a defence to a prosecution for an offence under subsection (1) if the defendant establishes—

(a)  that the defendant is in possession of the precursor for the purposes of an activity that is not unlawful, or

(b)  that the defendant otherwise has a reasonable excuse for possessing the precursor.

(3)  In this section, precursor means a substance—

(a)  that is capable of being used to manufacture or produce a prohibited drug, and

(b)  that is specified or described in the regulations as a precursor for the purposes of this section.

s 24B: Ins 2007 No 57, Sch 4 [4].

(1)  A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.

(1A)  A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence.

(2)  A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

(2A)  A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug to a person under the age of 16 years is guilty of an offence.

(2B)  Where, on the trial of a person for an offence under subsection (1A) or (2A), the jury are satisfied that the person charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person to whom the prohibited drug was supplied was of or above the age of 16 years, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly.

(2C)  A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person is guilty of an offence.

(2D)  A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

(2E)  It is a defence to a prosecution for an offence under subsection (2C) or (2D) if the defendant establishes that the defendant had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person who was procured to supply, or take part in the supply of, the prohibited drug was of or above the age of 16 years.

(3)  Where, on the trial of a person for an offence under subsection (2) or (2D), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2C), respectively, and the person shall be liable to punishment accordingly.

(4)  Nothing in this section renders unlawful the supply of a prohibited drug by—

(a)  a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or

(b)  a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or

(b1)  a police officer to a person who has been granted an authority mentioned in section 10(2)(b) to possess the prohibited drug, or

(c)  a person acting in accordance with a direction given by the Commissioner of Police under section 39Q,

or renders unlawful the taking part by any other person in the supply of a prohibited drug by a person to whom this subsection applies.

(5)  Nothing in this section renders unlawful the administration of a prohibited drug to a person being cared for by another person in the circumstances described in section 10 (2) (d).

s 25: Am 1986 No 47, Sch 2 (8); 1995 No 23, Sch 1.5 [2] [3]; 1997 No 87, Sch 2 [3]; 1998 No 160, Sch 1 [3] [4]; 2006 No 39, Sch 1 [10]–[12]; 2009 No 106, Sch 2.8; 2016 No 6, Sch 1 [2]; 2020 No 30, Sch 2.13; 2024 No 3, Sch 6[1] [2].

(1) Offence provision A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.

Maximum penalty—3,500 penalty units or imprisonment for 20 years, or both.

(2) Same prohibited drug not necessary A person is liable to be convicted of an offence under this section whether or not the same prohibited drug is supplied on each of the occasions relied on as evidence of commission of the offence.

(3) Jury must be satisfied as to same 3 occasions of supply If, on the trial of a person for an offence under this section, more than 3 occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence.

(4) Alternative verdict—relevant supply offences If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant supply offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant supply offence, and the person is liable to punishment accordingly.

(5) Double jeopardy provisions A person who has been convicted of an offence under this section is not liable to be convicted—

(a)  of a relevant supply offence, or

(b)  of a separate offence under this section,

on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been convicted.

(6)  A person who has been acquitted of an offence under this section is not liable to be convicted—

(a)  except as provided by subsection (4)—of a relevant supply offence, or

(b)  of a separate offence under this section,

on the same, or substantially the same, facts as those relied on as evidence of commission of the offence in respect of which the person has been acquitted.

(7)  A person who has been—

(a)  convicted of a relevant supply offence, or

(b)  acquitted of a relevant supply offence,

is not liable to be convicted for an offence under this section on the same, or substantially the same, facts as those relied on as evidence of commission of the relevant supply offence.

(8) Liability for relevant supply offences not affected by offence under this section Subject to subsections (5) and (6), this section does not—

(a)  remove the liability of any person to be convicted of a relevant supply offence, or

(b)  affect the punishment that may be imposed for any such offence.

(9) Exemption—lawful supply Nothing in this section renders unlawful the supply of a prohibited drug by—

(a)  a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966, or

(b)  a person acting in accordance with an authority granted by the Director-General of the Department of Health where the Director-General is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study.

(10) Definitions In this section—

cannabis means cannabis leaf, cannabis oil, cannabis plant and cannabis resin.

relevant supply offence means any offence under this Act (other than under this section) relating to the supply of a prohibited drug.

s 25A: Ins 1998 No 73, Sch 1.

A person who conspires with another person or other persons to commit an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the firstmentioned offence.

(1)  A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as if the person had committed the firstmentioned offence.

(2)  A person does not commit an offence because of this section for any act or omission that is an offence under section 43B.

s 27: Am 2012 No 97, Sch 1.7 [3].

(1)  A person who, in New South Wales—

(a)  conspires with another person or persons to commit an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this Division, or

(b)  aids, abets, counsels, procures, solicits or incites the commission of an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this Division,

is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the offence which was committed outside New South Wales.

(2)  A person does not commit an offence because of this section for any act or omission that is an offence under section 43B.

s 28: Am 1998 No 149, Sch 2.7 [1]; 2012 No 97, Sch 1.7 [4].

A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless—

(a)  the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or

(b)  except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.

s 29: Am 1998 No 102, Sch 3.3 [8]; 2003 No 45, Sch 2.2 [9]; 2003 No 87, Sch 3.8 [2].

(1)  This section applies to the following offences—

(a)  an offence under section 23 (1) or 23A (1),

(b)  an offence under section 24 (1) or (1A),

(c)  an offence under section 25 (1), (1A) or (2C),

(c1)  an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b) or (c),

(d)  an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b) or (c), and

(e)  an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 23A (1), 24 (1) or (1A) or 25 (1), (1A) or (2C),

where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant or prohibited drug concerned in the commission of the offence is not more than the small quantity applicable to the prohibited plant or prohibited drug.

(2)  Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence to which this section applies.

(3)  If such an offence is dealt with summarily, the maximum penalty for the offence is a fine of 50 penalty units or imprisonment for 2 years, or both.

s 30: Am 1988 No 17, Sch 1 (3); 1995 No 22, Sch 2.4 [1]; 1995 No 23, Sch 1.5 [4]; 1998 No 149, Sch 2.7 [2] [3]; 1999 No 94, Sch 4.19; 2001 No 121, Sch 2.88 [3]; 2006 No 39, Sch 1 [13] [14]; 2006 No 57, Sch 1 [9] [10].

(1)  This section applies to the following offences—

(a)  an offence under section 23 (1) or 23A (1),

(b)  an offence under section 24 (1) or (1A),

(c)  an offence under section 25 (1), (1A) or (2C),

(c1)  an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b) or (c),

(d)  an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b) or (c), and

(e)  an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 23A (1), 24 (1) or (1A) or 25 (1), (1A) or (2C),

where the court is satisfied on the balance of probabilities that the number or amount of the prohibited plant or prohibited drug concerned in the commission of the offence is not more than the indictable quantity applicable to the prohibited plant or prohibited drug.

(1A)  This section also applies to an offence under section 24A or 24B.

(2)  Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence to which this section applies.

(3)  If such an offence is dealt with summarily, the maximum penalty for the offence is a fine of 100 penalty units or imprisonment for 2 years, or both.

s 31: Am 1988 No 17, Sch 1 (4); 1995 No 22, Sch 2.4 [2]; 1995 No 23, Sch 1.5 [4]; 1998 No 149, Sch 2.7 [4] [5]; 1999 No 94, Sch 4.19; 2000 No 107, Sch 1 [2]; 2001 No 121, Sch 2.88 [3]; 2006 No 39, Sch 1 [13] [14]; 2006 No 57, Sch 1 [9] [10]; 2007 No 57, Sch 4 [5].

(1)  Except as provided by sections 30 and 31, the penalty for—

(a)  an offence under section 23 (1),

(b)  an offence under section 24 (1),

(c)  an offence under section 25 (1),

(c1)  an offence under section 25 (1A),

(d)  an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (b), (c) or (c1),

(e)  an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (b), (c) or (c1), or

(f)  an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1), 24 (1) or 25 (1) or (1A),

is—

(g)  except as provided by paragraph (h), a fine of 2,000 penalty units or imprisonment for a term of 15 years, or both, or

(h)  where the offence relates to cannabis plant or cannabis leaf, a fine of 2,000 penalty units or imprisonment for a term of 10 years, or both.

(2)    (Repealed)

Note—

Offences referred to in this section may be dealt with summarily in certain cases. See Chapter 5 of and Schedule 1 to the Criminal Procedure Act 1986.

s 32: Am 1988 No 17, Sch 1 (5); 1995 No 22, Sch 2.4 [3]; 1995 No 23, Sch 1.5 [4]; 1998 No 149, Sch 2.7 [6]; 1999 No 94, Sch 4.19; 2001 No 121, Sch 2.88 [3]; 2018 No 4, Sch 1.7 [1]–[4].

(1)  This section applies to the following offences—

(a)  an offence under section 23 (1A) or (2), 24 (2) or 25 (2) or (2A),

(b)  an offence under section 26 of conspiring to commit an offence referred to in paragraph (a),

(c)  an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a),

(d)  an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1A) or (2), 24 (2) or 25 (2) or (2A).

(2)  The penalty for an offence is—

(a)  except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, or

(b)  where the offence relates to cannabis plant or cannabis leaf, a fine of 3,500 penalty units or imprisonment for 15 years, or both.

(3)  Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is—

(a)  except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both, or

(b)  where the offence relates to cannabis plant or cannabis leaf, a fine of 5,000 penalty units or imprisonment for 20 years, or both.

(4)  In this section—

large commercial quantity, in relation to a prohibited plant or prohibited drug, means the number or amount, if any, specified opposite the plant or drug in Column 5 of Schedule 1.

s 33: Subst 1988 No 17, Sch 1 (6). Am 1995 No 23, Sch 1.5 [5]; 1998 No 149, Sch 2.7 [6]; 2006 No 57, Sch 1 [11].

(1)  This section applies if—

(a)  a person is found guilty of an offence under section 25 (1A) or (2A), or

(b)  a person is found guilty of—

(i)  an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), or

(ii)  an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), or

(iii)  an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 25 (1A) or (2A).

(2)  The penalty for the offence is the penalty that would otherwise be imposed by this Act but increased—

(a)  in the case of a penalty for imprisonment for 2 years—to a penalty of imprisonment for 2 years and 6 months, and

(b)  in the case of the penalty for an offence under section 25 (2A)—to a penalty of a fine of 4,200 penalty units or imprisonment for 25 years, or both, and

(c)  in the case of any other penalty, whether a pecuniary penalty or imprisonment by one-fifth.

(3)  This section has effect despite any other provision of this Act.

s 33AA: Ins 1995 No 23, Sch 1.5 [6]. Am 1998 No 149, Sch 2.7 [6].

(1)  The penalty for an offence under section 24A is a fine of 2,000 penalty units or imprisonment for a term of 10 years, or both, except as provided by section 31.

(2)  The penalty for an offence under section 24B is a fine of 1,000 penalty units or imprisonment for a term of 5 years, or both, except as provided by section 31.

s 33AB: Ins 2000 No 107, Sch 1 [3]. Am 2007 No 57, Sch 4 [6].

(1)  This section applies to the following offences—

(a)  an offence under section 24 (1A) or (2A) or 25 (2C) or (2D),

(b)  an offence under section 26 of conspiring to commit an offence referred to in paragraph (a),

(c)  an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a),

(d)  an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 24 (1A) or (2A) or 25 (2C) or (2D).

(2)  The penalty for an offence under section 24 (1A) or 25 (2C), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 24 (1A) or 25 (2C), is a fine of 2,400 penalty units or imprisonment for 18 years, or both.

(3)  The penalty for an offence under section 24 (2A) or 25 (2D), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 24 (2A) or 25 (2D), is a fine of 4,200 penalty units or imprisonment for 25 years, or both.

(4)  Despite subsection (3), if the court is satisfied that an offence referred to in that subsection involved not less than the large commercial quantity of the prohibited drug concerned, the penalty for the offence is a fine of 6,000 penalty units or imprisonment for life, or both.

(5)  In this section—

large commercial quantity, in relation to a prohibited drug, means the number or amount, if any, specified opposite the drug in Column 5 of Schedule 1.

s 33AC: Ins 2006 No 39, Sch 1 [15].

(1)  This section applies to the following offences—

(a)  an offence under section 23A (1), (2) or (3),

(b)  an offence under section 26 of conspiring to commit an offence referred to in paragraph (a),

(c)  an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a),

(d)  an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23A (1), (2) or (3).

(2)  Except as provided by sections 30 and 31, the penalty for an offence under section 23A (1), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 23A (1), is a fine of 2,400 penalty units or imprisonment for 12 years, or both.

(3)  The penalty for an offence under section 23A (2) or (3), or an offence referred to in subsection (1) (b)–(d) that relates to an offence under section 23A (2) or (3), is a fine of 4,200 penalty units or imprisonment for 18 years, or both.

(4)  Despite subsection (3), if the court is satisfied that an offence referred to in that subsection involved not less than the large commercial quantity of the prohibited plant concerned, the penalty for the offence is a fine of 6,000 penalty units or imprisonment for 24 years, or both.

(5)  In this section—

large commercial quantity, in relation to a prohibited plant, means the number or amount, if any, specified opposite the plant in Column 5 of Schedule 1.

s 33AD: Ins 2006 No 57, Sch 1 [12].

(1)  A person sentenced to imprisonment for life for an offence under this Division is to serve that sentence for the term of the person’s natural life.

(2)  Where a person is liable to imprisonment for life for an offence under this Division, the court may nevertheless pass a sentence of imprisonment of fixed duration.

(3)  This section applies to offences under this Division committed before or after the commencement of this section. However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the offence were instituted against the convicted person before the commencement of this section.

(4)  Nothing in this section affects the prerogative of mercy.

s 33A: Ins 1989 No 218, Sch 2.

A term of imprisonment imposed on a person by a court of summary jurisdiction in respect of the non-payment of a fine for an offence against any of the provisions of this Act may be ordered to commence at the expiration of any term of imprisonment imposed on that person for the same offence in addition to the fine.

A court which convicts a person of an offence against any of the provisions of this Act or the regulations may order that any article (other than a prohibited plant or prohibited drug) in respect of which the offence was committed shall be forfeited to Her Majesty and that any article so forfeited shall be destroyed or otherwise disposed of as the court thinks fit.

s 35: Subst 1986 No 47, Sch 1 (1).

Despite any other provision of this Act, it is not an offence against this Act for—

(a)  a person to manufacture, produce, possess or supply a substance listed in Schedule 2 if the substance is contained in a product from which the substance cannot be readily extracted or readily synthesized, or

(b)  a person to manufacture, produce, possess or supply a substance listed in Schedule 2 if the substance is contained in a product that is not for human consumption and the person manufactures, produces, possesses or supplies the product in connection with an activity that is not unlawful, or

(c)  a person to possess or supply a substance listed in Schedule 2 if the person possesses or supplies the substance for the purpose of its disposal as waste or its destruction.

s 35A: Ins 2007 No 57, Sch 4 [7].

(1)  Despite any other provision of this Part, this Part operates to allow the responsible authorities to issue only one licence in respect of only one premises.

(2)  However, nothing in this Part prevents the responsible authorities—

(a)  from issuing a further licence to a person other than the holder of an earlier licence, or

(b)  from issuing a further licence in respect of premises other than those specified in an earlier licence,

so long as the earlier licence is surrendered or revoked before the further licence takes effect.

(3)    (Repealed)

s 36A: Ins 1999 No 67, Sch 1. Am 2002 No 21, Sch 1 [1]; 2003 No 47, Sch 1 [1] [2]; 2007 No 17, Sch 1 [1]; 2010 No 81, Sch 1 [1]–[3].

The objects of this Part are as follows—

(a)  to reduce the number of deaths from drug overdoses,

(b)  to provide a gateway to treatment and counselling for clients of the licensed injecting centre,

(c)  to reduce the number of discarded needles and syringes and the incidence of drug injecting in public places,

(d)  to assist in reducing the spread of blood-borne diseases, such as HIV infection or Hepatitis C.

s 36B: Ins 1999 No 67, Sch 1. Am 2002 No 21, Sch 1 [2]; 2003 No 47, Sch 1 [3] [4]; 2007 No 17, Sch 1 [2]. Subst 2010 No 81, Sch 1 [4].

(1)  The Minister is to review this Part to determine whether the policy objectives of this Part remain valid and whether the terms of this Part remain appropriate for securing those objectives.

(2)  The review is to be undertaken as soon as possible after the period of 5 years from the commencement of the Drug Misuse and Trafficking Amendment (Medically Supervised Injecting Centre) Act 2010.

(3)  A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

s 36C: Ins 1999 No 67, Sch 1. Subst 2010 No 81, Sch 1 [4].

In this Part—

child means a person who is under the age of 18 years.

director, in relation to a licensed injecting centre, means a medical practitioner appointed as director of the centre, and includes any other medical practitioner appointed to act as director of the centre during the illness or absence of the director or during a vacancy in the office of the director.

internal management protocols, in relation to a licensed injecting centre, means the protocols finalised for the centre as referred to in section 36F or, if the protocols are amended or replaced as referred to in section 36M, the protocols as so amended or replaced.

law includes common law.

licence means a licence in force under this Part.

licensed injecting centre means the premises that are the subject of a licence.

prescribed drug means a prohibited drug or a substance prescribed by the regulations for the purposes of this definition.

qualified health professional means a medical practitioner, a registered nurse or a person having qualifications or experience specified or described by order of the Minister published in the Gazette.

responsible authorities means the Commissioner of Police and the Director-General of the Department of Health.

staff, in relation to a licensed injecting centre, includes—

(a)  all persons engaged to provide services at the centre, whether under a contract of employment or otherwise, and

(b)  all persons authorised to provide voluntary assistance at the centre in accordance with the centre’s licence conditions and internal management protocols.

The employer of a person referred to in paragraph (a) or (b) is the person by or on whose behalf the person so referred to is engaged to provide services or authorised to provide voluntary assistance, as the case requires.

supervisor, in relation to a licensed injecting centre, means the director of the centre or a qualified health professional nominated by the director to supervise the centre.

s 36D: Ins 1999 No 67, Sch 1. Am 2002 No 21, Sch 1 [3]; 2003 No 47, Sch 1 [5]; 2010 No 34, Sch 2.14 [2]; 2010 No 81, Sch 1 [5].

(1)  The responsible authorities may issue a licence authorising the holder of the licence to conduct specified premises as an injecting centre.

(2)  Nothing in this Part entitles a person to be issued with a licence, and the responsible authorities may refuse an application for a licence if the requirements of section 36F are not satisfied or for any other reason.

s 36E: Ins 1999 No 67, Sch 1.

(1)  A licence for the conduct of premises as an injecting centre must not be issued unless the responsible authorities are of the opinion—

(a)  that the internal management protocols for the proposed centre have been finalised and are of a satisfactory standard, and

(b)  that there is a sufficient level of acceptance, at community and local government level, for the establishment of an injecting centre at the premises, and

(c)  that the premises are suitable for use as an injecting centre, having regard to all relevant matters including the following—

(i)  public health and safety,

(ii)  the visibility of the premises from the street,

(iii)  the proximity of the premises to schools, child care centres and community centres,

(iv)  any matters prescribed by the regulations for the purposes of this section.

(2)  If a community drug action plan is in force in relation to the area within which the premises of the proposed injecting centre are situated, the responsible authorities must have regard to that plan in forming an opinion as to the matters referred to in subsection (1) (b) and (c).

(3)  Without limiting subsection (1), a licence for the conduct of premises as an injecting centre must not be issued unless the responsible authorities are of the opinion—

(a)  that any building work that is carried out for the purposes of the centre will be carried out in accordance with the Building Code of Australia, and

(b)  that any building that is used for the purposes of the centre will comply with the Building Code of Australia.

(4)  In subsection (3), building, Building Code of Australia and building work have the same meanings as they have in the Environmental Planning and Assessment Act 1979.

s 36F: Ins 1999 No 67, Sch 1.

(1)  Except during any period of suspension, a licence remains in force until it is surrendered or revoked.

(2)  The holder of a licence may, after consultation with the responsible authorities or their representatives, surrender the licence.

s 36G: Ins 1999 No 67, Sch 1. Am 2002 No 21, Sch 1 [4]; 2010 No 81, Sch 1 [6].

(1)  A licence is subject to such conditions as may be imposed from time to time by the responsible authorities, either in the licence or in a separate order in writing served on the holder of the licence.

(2)  Conditions of the kind referred to in subsection (1) may not be imposed without prior consultation with the holder or proposed holder of the licence.

(3)  A licence is also subject to such conditions as are imposed by or under this Part or the regulations.

ss 36H–36J: Ins 1999 No 67, Sch 1.

The following provisions are conditions of a licence for an injecting centre—

(a)  No child is to be admitted to that part of the centre that is used for the purpose of the administration of prescribed drugs.

(b)  The centre’s internal management protocols are to be observed.

ss 36H–36J: Ins 1999 No 67, Sch 1.

(1)  A contravention of this Division or the regulations in relation to a licensed injecting centre, or of the licence conditions for a licensed injecting centre, may be dealt with—

(a)  by one or more of the following—

(i)  a warning or reprimand administered in writing by the responsible authorities,

(ii)  a fine (not exceeding an amount equal to 100 penalty units) imposed by the responsible authorities,

(iii)  suspension of the licence by the responsible authorities for a specified period or until further notice, or

(b)  by revocation of the licence by the responsible authorities.

(2)  If the contravention also gives rise to an offence—

(a)  the fact that action has been taken under this section in relation to the contravention does not prevent a penalty from being imposed for the offence, and

(b)  the fact that a penalty has been imposed for the offence does not prevent action from being taken under this section in relation to the contravention.

(3)  A fine imposed under this section is payable to either responsible authority within the period specified by the responsible authorities, and is to be paid into the Consolidated Fund.

(4)  If a licensee fails to pay a fine imposed under this section (in whole or in part), the responsible authorities may suspend or revoke the licence.

(5)  Nothing in this section prevents the responsible authorities from amending or imposing a condition as a consequence of a contravention referred to in subsection (1).

(6)  The responsible authorities are authorised to suspend or revoke a licence for the purposes of this section.

(7)  A contravention referred to in subsection (1)—

(a)  does not limit the operation of section 36O, except to the extent that the contravention gives rise to an offence under the regulations made for the purposes of this Part, and

(b)  does not limit the operation of section 36P.

(8)  A contravention relating to the admission of a child to a licensed injecting centre is not committed if the licensee establishes that, having regard to the relevant provisions of the centre’s internal management protocols, it was not apparent to the centre’s staff that the person concerned was a child.

ss 36H–36J: Ins 1999 No 67, Sch 1.

(1)  The responsible authorities may arrange for the ongoing or periodical review of any licensed injecting centre.

(2)  The responsible authorities must arrange for the review of the economic viability of a licensed injecting centre if they are satisfied that the service activity level of the centre has dropped below 75 per cent of the service activity level prescribed by the regulations.

(3)  Regulations referred to in subsection (2) may express the level of service activity as a specified number of client visits in any period or may express that level in any other manner.

(4)  The responsible authorities may revoke a licence if, after considering the results of a review under subsection (2), they are of the opinion that the licensed injecting centre has ceased to be economically viable.

s 36K: Ins 1999 No 67, Sch 1. Subst 2007 No 17, Sch 1 [3].

(1)  The responsible authorities may revoke a licence for any of the following reasons—

(a)  the responsible authorities are satisfied that it is more appropriate for a licence to be issued in respect of different premises,

(b)  the responsible authorities are satisfied that the licence holder is not a fit and proper person to hold the licence or, if the licence holder is a corporation, a director or person concerned in the management of the corporation is not a fit and proper person to hold a licence,

(c)  such other reasons as may be prescribed by the regulations.

(2)  A licence may also be revoked under section 36J or 36K.

s 36KA: Ins 2010 No 81, Sch 1 [7].

In considering the internal management protocols for a proposed injecting centre for the purposes of section 36F, the responsible authorities must have regard to whether provision needs to be made to ensure that any or all of the following requirements are met—

(a)  The centre must be under the supervision of a supervisor.

(b)  The supervisor must have a general oversighting role of the centre’s clinical operations and responsibility for ensuring the adequacy of the clinical procedures used in the centre. This paragraph does not prevent the supervisor from being personally involved in clinical activities in the centre.

(c)  All staff directly supervising injecting activities in the centre must be qualified health professionals.

(d)  The centre must contain or have satisfactory access to—

(i)  primary health care services, including medical consultation and medical assessment services, and

(ii)  drug and alcohol counselling services, and

(iii)  health education services, and

(iv)  drug and alcohol detoxification and rehabilitation services, and

(v)  the services of a methadone provider, and

(vi)  services for testing for blood-borne and sexually transmissible diseases, and

(vii)  services involving a needle and syringe exchange program.

(e)  Procedures are to be established to enable staff to ascertain in appropriate cases whether a person seeking admission to the centre is a child.

(f)  At least one member of staff—

(i)  must be a person with satisfactory qualifications or experience in child protection and youth support, and

(ii)  must be in attendance at the centre, or available on call to attend the centre, at all times while it is being used as an injecting centre.

(g)  The health and safety of staff and users of the centre are to be protected, having regard to the design and services of the centre.

(h)  Services are to be available and procedures established to ensure compliance or ability to comply, at or in connection with the centre, with the relevant requirements of—

(i)  this Part, and

(ii)  the regulations, and

(iii)  the centre’s licence conditions, and

(iv)  any other provisions of the centre’s internal management protocols.

(i)  Any requirements prescribed by the regulations for the purposes of this section.

pt 2A, div 3 (ss 36L, 36M): Ins 1999 No 67, Sch 1.

A licensed injecting centre’s internal management protocols may be amended or replaced, subject to the regulations and the centre’s licence conditions.

pt 2A, div 3 (ss 36L, 36M): Ins 1999 No 67, Sch 1.

(1)  In this section—

exempt quantity, in relation to a prescribed drug, means—

(a)  in the case of a prohibited drug, a small quantity of the drug (subject to paragraph (b)), or

(b)  in any case, such quantity of the drug as is prescribed by the regulations.

(2)  Despite any other provision of this Act or of any other Act or law (other than a provision prescribed by the regulations)—

(a)  it is not unlawful for a person at a licensed injecting centre—

(i)  to be in possession of (otherwise than for supply) no more than an exempt quantity of a prescribed drug, or

(ii)  to be in possession of an item of equipment for use in the administration of a prescribed drug, or

(iii)  to administer or attempt to administer to himself or herself no more than an exempt quantity of a prescribed drug, and

(b)  in particular, a person at a licensed injecting centre—

(i)  who has in his or her possession (otherwise than for supply) no more than an exempt quantity of a prescribed drug, or

(ii)  who has in his or her possession an item of equipment for use in the administration of a prescribed drug, or

(iii)  who administers or attempts to administer to himself or herself no more than an exempt quantity of a prescribed drug,

does not commit an offence under section 10, 11 or 12, or any other offence prescribed by the regulations, just because of that fact.

(3)  Subsection (2) does not affect the operation of—

(a)  the conditions of any recognizance to which a person is subject (whether under the Crimes Act 1900 or otherwise), or

(b)  any bail conditions to which a person is subject under the Bail Act 2013, or

(c)  the conditions of any program to which a person is subject under the Drug Court Act 1998.

(4)  Nothing in this section prevents a police officer from exercising a discretion not to charge a person with an offence under section 10 or 11—

(a)  in respect of the possession of a prescribed drug, or

(b)  in respect of the possession of an item of equipment for use in the administration of a prescribed drug,

while the person is travelling to or from, or is in the vicinity of, a licensed injecting centre.

(5)  The reference in subsection (4) to a discretion includes a reference to a discretion referred to in any guidelines applicable to police discretions.

s 36N: Ins 1999 No 67, Sch 1. Am 2014 No 5, Sch 2.17.

Despite any other provision of this Act or of any other Act or law (other than a provision prescribed by the regulations)—

(a)  it is not unlawful for a person to engage, participate or otherwise be involved in the conduct of a licensed injecting centre, and

(b)  in particular, a person who is engaged, participates or is otherwise involved in the conduct of a licensed injecting centre does not commit an offence under section 14 or 19, or any other offence prescribed by the regulations, just because of that fact.

s 36O: Ins 1999 No 67, Sch 1.

(1)  Anything done or omitted to be done in connection with the conduct of a licensed injecting centre does not subject—

(a)  the person by whom that thing was done or omitted, or

(b)  any other person (including the licensee, the State and any Minister of the Crown in right of the State),

to any action, liability, claim or demand if the thing was done or omitted to be done in good faith for the purpose of executing this Part, and was not done or omitted to be done in a reckless or grossly negligent manner.

(2)  This section does not affect any rights or obligations as between a member of the staff of a licensed injecting centre and his or her employer.

s 36P: Ins 1999 No 67, Sch 1.

(1)  Development for the purposes of a licensed injecting centre is permissible without the need for development consent under the Environmental Planning and Assessment Act 1979.

(2)  Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of development for the purposes of a licensed injecting centre.

s 36Q: Ins 1999 No 67, Sch 1. Am 2010 No 81, Sch 1 [8].

In any legal proceedings under this Act, a certificate purporting to be signed by either of the responsible authorities—

(a)  that premises specified in the certificate were or were not, on a date so specified, a licensed injecting centre, or

(b)  that a person specified in the certificate was or was not, on a date so specified, engaged in the conduct of a licensed injecting centre,

is prima facie evidence of the fact stated in the certificate without proof of the signature or of the official character of the person purporting to have signed the certificate.

s 36R: Ins 1999 No 67, Sch 1.

Without limiting section 45, the regulations may make provision, for the purposes of this Part, for or with respect to any of the following matters—

(a)  the standards for a licensed injecting centre, including the elaboration of internal management protocols for a licensed injecting centre,

(b)  the provisions to be observed in the operation of a licensed injecting centre,

(c)  the rules of conduct to be observed by persons using a licensed injecting centre,

(d)  the qualifications of persons engaged in the conduct of a licensed injecting centre,

(e)  the functions of persons engaged in the conduct of a licensed injecting centre,

(f)  the preparation, form and content of a community drug action plan,

(g)  the maintenance and amendment of a community drug action plan,

(h)  the public and community consultation processes to be undertaken with respect to the development and review of a community drug action plan.

s 36S: Ins 1999 No 67, Sch 1.

The amendments made to this Part by the Drug Misuse and Trafficking Amendment (Medically Supervised Injecting Centre) Act 2010 extend to a licence in force under this Part immediately before the commencement of that Act.

s 36T: Ins 2002 No 21, Sch 1 [5]. Am 2003 No 47, Sch 1 [6]; 2007 No 17, Sch 1 [4]. Subst 2010 No 81, Sch 1 [9].

(1)  This Part applies to a substance that a member of the NSW Police Force knows or suspects to be any of the following and that is in the custody of a member of the NSW Police Force (whether because it has been seized or for any other reason)—

(a)  a prohibited plant,

(b)  a prohibited drug,

(c)  a Schedule 9 substance,

(d)  a psychoactive substance.

(2)  For the purposes of this section, a substance is taken to be in the custody of a member of the NSW Police Force if it is in the custody of an analyst for the purposes of this Part or is being transported for any such purpose.

s 39A: Ins 1986 No 47, Sch 1 (2). Subst 2006 No 39, Sch 1 [17]; 2006 No 107, Sch 1.15 [7]; 2016 No 6, Sch 1 [3].

(1)  In this Part—

destroy means destroy or otherwise dispose of.

qualified police officer means a police officer of or above the rank of superintendent.

(2)  In this Part, a reference to the quantity of a drug is a reference to the quantity of the drug originally in the custody of a member of the NSW Police Force.

s 39B: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

A member of the NSW Police Force or other person is entitled to retain a substance to which this Part applies for the purpose of dealing with the substance in accordance with this Part and the regulations.

s 39C: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]; 2011 No 62, Sch 3.9 [1]. Subst 2016 No 6, Sch 1 [3].

After determining the quantity of a substance to which this Part applies, the identity of the substance may be determined on the basis of the testing and analysis of a representative sample of the substance in accordance with the regulations.

s 39CA: Ins 2018 No 29, Sch 1.12 [1].

The regulations may make provision for or with respect to the following matters—

(a)  the retention of all or part of a substance to which this Part applies,

(b)  the weighing, testing and analysis of substances to which this Part applies,

(c)  the recording, handling, storage, transport and destruction of substances to which this Part applies,

(d)  the return of substances to which this Part applies to persons lawfully entitled to them,

(e)  evidentiary certificates, and prima facie evidence, relating to the identity, quantity, mass, testing, analysis, retention, handling, storage and transport of substances for the purposes of this Part.

s 39D: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]; 2011 No 62, Sch 3.9 [1]. Subst 2016 No 6, Sch 1 [3].

A substance to which this Part applies is forfeited to the Crown, if it is not otherwise forfeited, if an order is made under this Part or the regulations that the substance is to be destroyed.

ss 39E–39H: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

(1)  A substance to which this Part applies may, subject to any requirements of this Part or the regulations, be destroyed in accordance with an order made under this Part or the regulations.

(2)  An order must not authorise the destruction of so much of an amount of a substance to which this Part applies that is required by the regulations to be retained.

ss 39E–39H: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

(1)  A qualified police officer may order in writing that a substance to which this Part applies is to be destroyed if the police officer is satisfied that no person has been charged with an offence with respect to the substance and no person is likely to be charged.

(2)  The substance (other than a prohibited plant) must not be destroyed earlier than 21 days after the day on which the substance first came into the custody of any member of the NSW Police Force.

(3)  Before the substance is destroyed, evidence of the substance is to be recorded by photographing or other means and the particulars (if any) prescribed by the regulations are to be recorded.

(4)  Subsection (3) does not apply to a prohibited drug, or suspected prohibited drug, if the quantity of the drug is less than the traffickable quantity in relation to the drug.

ss 39E–39H: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

A qualified police officer may order in writing that any prohibited plants to which this Part applies are to be destroyed if the police officer is satisfied that—

(a)  a person of a class prescribed by the regulations for the purposes of this section has issued a certificate identifying the plants as specified prohibited plants, and

(b)  evidence of the plants has been recorded by photographing or other means and the particulars (if any) prescribed by the regulations have been recorded.

ss 39E–39H: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

(1)  A qualified police officer may order in writing that a substance (other than a prohibited plant) to which this Part applies is to be destroyed if the police officer is satisfied that—

(a)  any samples of the substance that are required by the regulations to be taken and retained have been taken and retained, and

(b)  a certificate of analysis of one of the samples has been given to the defendant or accused person in any proceedings relating to the substance.

(2)  The substance must not be destroyed earlier than 28 days after the day on which written notice by a qualified police officer of the proposed destruction is served on the defendant or accused person in any proceedings for an offence relating to the substance.

(3)  Before the substance is destroyed, evidence of the substance is to be recorded by photographing or other means and the particulars (if any) prescribed by the regulations are to be recorded.

(4)  The Local Court may, on application by a member of the NSW Police Force, make an order authorising the destruction of a substance under this section if the Court is satisfied that—

(a)  written notice of the proposed destruction cannot practicably be served on the defendant or accused person, and

(b)  an order that the substance be destroyed has been made in accordance with this section.

Note—

A substance cannot be destroyed under this section while a quantity review application is being determined or before any consequent determination of the mass of the substance has been completed (see section 39M).

(5)  This section does not apply to a prohibited drug, or suspected prohibited drug, if the quantity of the drug is less than the traffickable quantity in relation to the drug.

s 39I: Ins 1986 No 47, Sch 1 (2). Am 1998 No 160, Sch 1 [5] [6]; 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

(1)  A qualified police officer may order in writing that a prohibited drug, or suspected prohibited drug, is to be destroyed if the amount of the drug is less than the traffickable quantity in relation to the drug.

(2)  The substance must not be destroyed earlier than 28 days after the end of any proceedings for an offence relating to the substance (including the end of any appeal proceedings or, if no appeal is made, the end of the period within which an appeal may be made).

ss 39J–39L: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

(1)  A qualified police officer may order in writing that a substance or article (whether or not it consists of or includes a substance to which this Part applies) is to be destroyed if the police officer is satisfied that—

(a)  the substance or article has been seized and is being retained for the purpose of proceedings for an offence under this Act, and

(b)  an analyst has certified in writing that, in the interests of health or safety, the substance or article is required to be destroyed, and

(c)  evidence of the substance or article has been recorded by photographing or other means and, if practicable, the particulars (if any) prescribed by the regulations have been recorded, and

(d)  if practicable, any samples of any substance that are required by the regulations to be taken and retained have been taken and retained.

(2)  The substance or article must not be destroyed earlier than 28 days after the day on which written notice by a qualified police officer of the proposed destruction is served on the defendant or accused person in any proceedings for an offence relating to the substance or article.

(3)  Despite subsection (2), a substance or article may be destroyed at any time if an analyst certifies in writing that, in the interests of health or safety, the substance or article is required to be destroyed before the expiry of the period specified by that subsection.

(4)  The Local Court may, on application by a member of the NSW Police Force, make an order authorising the destruction of a substance or article under this section if the Court is satisfied that—

(a)  written notice of the proposed destruction cannot practicably be served on the defendant or accused person, and

(b)  an order that the substance or article be destroyed has been made in accordance with this section.

Note—

A substance cannot be destroyed under this section while a quantity review application is being determined or before any consequent determination of the mass of the substance has been completed (see section 39M).

ss 39J–39L: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

A qualified police officer may make an order to destroy a substance in accordance with a provision of this Division at any time if the officer is of the opinion that, because of the amount of the substance or for any other reason, the substance could not reasonably be securely retained for the period of notice that would otherwise be required under that provision.

ss 39J–39L: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]. Subst 2016 No 6, Sch 1 [3].

(1)  This section applies if a certificate as to the initial mass of a substance to which this Part applies is given under the regulations by a member of the NSW Police Force or an analyst.

(2)  The Local Court may, on the application of a defendant or accused person in any proceedings for an offence relating to the substance, make a quantity review order for a substance.

(3)  The application must be made not later than 60 days after the certificate is served on the defendant or accused person.

(4)  The Local Court may make a quantity review order only if it is satisfied that—

(a)  there has been a substantial failure to comply with this Act or the regulations in respect of the substance, or

(b)  there is a real doubt as to the accuracy of the certificate issued by the member of the NSW Police Force or analyst in respect of the substance.

(5)  A quantity review order made by the Local Court may require—

(a)  that a member of the NSW Police Force make all of the substance in the custody of the NSW Police Force available to an employee of the Ministry of Health for determination of the mass of the substance, and

(b)  that the person to whom the substance is made available determine, or arrange the determination of, the mass of the substance, and

(c)  that a further certificate under the regulations specifying the mass of the substance so determined be provided to the applicant.

(6)  If an application is made for a quantity review order for a substance in accordance with this section, the substance, including any sample previously provided for analysis, may be destroyed under another provision of this Part or the regulations only if—

(a)  the application is withdrawn or refused, or

(b)  the application is granted and a certificate has been provided to the applicant in accordance with the quantity review order.

(7)  Subsection (6) does not prevent the destruction of a substance in accordance with this Part if destruction is necessary before that subsection is complied with in the interests of health or safety or because the substance cannot reasonably be securely retained.

s 39M: Ins 1986 No 47, Sch 1 (2). Am 2006 No 107, Sch 1.15 [8]; 2011 No 62, Sch 3.9 [1]. Subst 2016 No 6, Sch 1 [3].

If—

(a)  a person who was legally represented before the Local Court on the trial of an offence with respect to a substance to which this Part applies pleaded guilty to the offence, and

(b)  an appeal is made against any determination of the Local Court with respect to the offence, and

(c)  before the appeal is heard, the substance is destroyed after an order for its destruction is made under this Part or the regulations,

any particular in the court attendance notice as to the nature, quantity or mass of the substance is, for the purposes of the appeal, presumed to be true.

s 39N: Ins 1986 No 47, Sch 1 (2). Am 1998 No 160, Sch 1 [7]. Subst 2016 No 6, Sch 1 [3].

(1)  A court may, on the application of a person who is lawfully entitled to a substance to which this Part applies or on its own motion, make an order that the substance be returned to the person if the substance has not been destroyed under this Part or the regulations.

(2)  This Part does not prevent an order being made under section 43 of the Criminal Procedure Act 1986 in relation to a substance to which this Part applies.

(3)  An application for an order under this section, and an order under this section, may be made despite sections 39C and 39E.

(4)  An application for an order under this section may be made to—

(a)  a court in which proceedings for an offence relating to the substance have been commenced, or

(b)  if proceedings have not commenced, or any such proceedings have been completed, the Local Court.

(5)  This section is subject to section 39.

s 39O: Ins 1986 No 47, Sch 1 (2). Subst 2016 No 6, Sch 1 [3].

(1)  A member of the NSW Police Force who seizes a substance to which this Part applies or has custody of a substance to which this Part applies must return the substance to the owner or person who had lawful possession of the thing before it was seized or came into custody if the member of the NSW Police Force is satisfied that—

(a)  its retention as evidence is not required, and

(b)  it is lawful for the person to have possession of the substance.

(2)  This section is subject to any order made for the destruction of the substance under this Part or any other provision of this Act and to any order made under section 39O.

(3)  This section is subject to section 39.

s 39P: Ins 1986 No 47, Sch 1 (2). Subst 2016 No 6, Sch 1 [3].

pt 3A, div 2A: Ins 2002 No 128, Sch 1. Rep 2016 No 6, Sch 1 [3].

s 39PA: Ins 2002 No 128, Sch 1. Am 2010 No 97, Sch 2.7 [1]. Rep 2016 No 6, Sch 1 [3].

pt 3A, div 2B: Ins 2006 No 39, Sch 1 [18]. Rep 2016 No 6, Sch 1 [3].

s 39PB: Ins 2006 No 39, Sch 1 [18]. Am 2006 No 94, Sch 3.10; 2006 No 107, Sch 1.15 [9]–[11]. Rep 2016 No 6, Sch 1 [3].

(1)  The Commissioner of Police may, by order in writing, direct that any substance to which this Part applies that has been seized by a police officer be retained by a police officer specified in the direction for the purpose of its being used in connection with—

(a)  a controlled operation under the Law Enforcement (Controlled Operations) Act 1997, or

(b)  an integrity testing program under Part 10A of the Police Act 1990.

(2)  A direction under this section may be given in relation to a substance—

(a)  whether it is intended for immediate use or for use at some later time, and

(b)  whether it is intended for use by the police officer specified in the direction or for use by some other person.

(3)  A direction under this section is subject to the following conditions—

(a)  that the substance to which the direction relates is to be kept securely until it is used in connection with a controlled operation or integrity testing program,

(b)  any other condition that the Commissioner of Police considers appropriate.

(4)  A direction under this section need not identify a particular controlled operation or integrity testing program and a particular controlled operation or integrity testing program need not be in contemplation before a direction under this section may be made.

(5)  Despite any other Act or law to the contrary, the functions of the Commissioner of Police under this section may not be delegated except to—

(a)  a Deputy Commissioner of Police, or

(b)  a person who is appointed to a NSW Police Force Senior Executive Service position and to whom the function under section 6 (1) of the Law Enforcement (Controlled Operations) Act 1997 of authorising the conduct of a controlled operation has been delegated in accordance with that Act.

s 39Q: Ins 1986 No 47, Sch 1 (2). Subst 2016 No 6, Sch 1 [3].