The manufacture or supply of psychoactive substances is an offence under section 36ZF of the Drug Misuse and Trafficking Act 1985 (NSW).

A person commits the offence if they manufacture or supply, or knowingly participate in the manufacture or supply of, a substance that they know, or are reckless as to whether, is a psychoactive substance intended for human consumption.

Elements

A person must not manufacture or knowingly take part in the manufacture of a psychoactive substance for supply to another person:

• knowing that it is being supplied to the person primarily for human consumption or for supply by that person to another person for that purpose, or
• being reckless as to whether it is being so supplied.

A person must not supply a psychoactive substance:

• knowing that it is being acquired primarily for human consumption, or
• being reckless as to whether it is being so acquired.

Considerations

The court may have regard to the following in determining whether a person knew or was reckless as to whether a substance was being acquired or supplied primarily for human consumption:

• any advertising matter published or displayed by the person, or usage instruction concerning the substance given by the person, whether before or after the commencement of this subsection, that indicates that the substance:
  • has or may have a psychoactive effect, or
  • has or may have a similar effect to a prohibited drug or may be used in a similar way to a prohibited drug

• whether it would be reasonable in all the circumstances to find that the substance concerned was being manufactured or supplied for a lawful purpose.

Penalties

The maximum penalty is 20 penalty units or imprisonment for 2 years, or both.

Definitions

Manufacture:

In relation to a psychoactive substance, means to make up, prepare, produce, process (including by extracting or refining), package or label the psychoactive substance.

Psychoactive substance:

Means any substance (other than a substance to which this Part does not apply) that, when consumed by a person, has the capacity to induce a psychoactive effect.

Psychoactive effect:

In relation to a person who is consuming or has consumed a psychoactive substance, means:

• stimulation or depression of the central nervous system of the person, resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or
• causing a state of dependence, including physical or psychological addiction.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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