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Supplying a Psychoactive Substance

Supplying a psychoactive substance is an offence under section 36ZF(2) 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:

  1. You supplied a substance
  2. The substance was a psychoactive substance, and
  3. You knew the substance was primarily being acquired for 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:

  1. 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
  2. Causing a state of dependence, including physical or psychological addiction.

The offence does not apply to:

  1. Prohibited drugs, prohibited plants or precursors under the Act
  2. Poisons, restricted substances or drugs of addiction under the Poisons and Therapeutic Goods Act 1966
  3. Therapeutic goods under the Therapeutic Goods Act 1989
  4. Foods under the Food Act 2013
  5. Alcohol or tobacco
  6. Plants, fungi or extracts thereof that are not, or do not contain, prohibited drugs or prohibited plants
  7. Controlled drugs, plants or precursors under the Criminal Code Act 1995, or
  8. Substances supplied by health practitioners under the Health Care Complaints Act 1993 provided they are supplied in the course of providing health services.

‘Consumption’ includes ingestion, injection, inhalation, smoking and any other introduction into the human body.

A court may be satisfied you knowingly or recklessly supplied 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:

  1. 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
  2. Whether it would be reasonable to find you supplied the substance for a lawful purpose

Duress and necessity are defences to the charge.

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