Manufacturing or knowingly taking part in the manufacture of a psychoactive substance for supply is an offence under section 36ZF(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 2 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You manufactured or knowingly took part in the manufacture of a substance
- The substance was a psychoactive substance
- You did so for the supply of the substance to another person, and
- You knew you were supplying the substance for the primary purpose of human consumption or were reckless in that regard.
The definition of ‘substance’ extends to any plant, fungus or natural organism.
A ‘psychoactive substance’ is one that, when consumed by a person, has the capacity to produce a psychoactive effect.
A ‘psychoactive effect’ means:
- Stimulation or depression of the central nervous system 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.
The offence does not apply to:
- Prohibited drugs, prohibited plants or precursors under the Act
- Poisons, restricted substances or drugs of addiction under the Poisons and Therapeutic Goods Act 1966
- Therapeutic goods under the Therapeutic Goods Act 1989
- Foods under the Food Act 2013
- Alcohol or tobacco
- Plants, fungi or extracts thereof that are not, or do not contain, prohibited drugs or prohibited plants
- Controlled drugs, plants or precursors under the Criminal Code Act 1995, or
- Substances supplied by health practitioners under the Health Care Complaints Act 1993 provided they are supplied in the course of providing health services.
To ‘manufacture’ includes to make up, prepare, produce, process, package or label.
You ‘knowingly took part in the manufacture’ if you:
- Took or participated in any step of the manufacture process, or caused any such step to be taken
- Provided or arranged finance for any step in the manufacture process
- Provided the premises for any step in the manufacture process, or suffered or permitted any such step to be taken in a premises for which you were the owner, lessee, occupier or manager.
‘Consumption’ includes ingestion, injection, inhalation, smoking and any other introduction into the human body.
A court may be satisfied you knowingly or recklessly manufactured a substance, even though the usage instructions indicated it was not for human consumption.
When deciding your state of knowledge, the court may have regard to:
- Any advertising, display or usage instructions indicating the substance has or may have a psychoactive effect, or an effect similar to a prohibited drug, and
- Whether it would be reasonable to find you supplied the substance for a lawful purpose.
Duress and necessity are defences to the charge.