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CRIMINAL CODE REGULATION 2005 (NO 2 OF 2005)
2005
CRIMINAL CODE
REGULATION 2005
Circulated by the authority
Jon Stanhope MLA
Attorney
General
The Criminal Code (Serious Drug Offences) Amendment Act 2004 (the Code
Amendment Act) amends the Criminal Code 2002 by inserting a new chapter
6, which deals with serious drug offences. The purpose of this regulation is to
specify the substances and plants that are ‘controlled drugs’,
‘controlled plants’ and ‘controlled precursors’ and the
quantities of each (eg. trafficable, commercial and large commercial) that apply
to the new offences in chapter 6.
Currently, the ACT’s drug laws
are governed by the Drugs of Dependence Act 1991 (DDA) and the
Drugs of Dependence Regulation 1993 (the 1993 Regulations), which
deal with both the legal and illegal trade in drugs. After the Code Amendment
Act commences on 6 March 2005, chapter 6 will be the major source for
offences directed at the illegal trade, whilst the DDA will be the primary
legislative tool for regulating the legal manufacture, supply, and use of
pharmaceuticals in the ACT.
This Regulation will operate for both chapter
6 and the DDA. This is similar to the current situation (in that the 1993
Regulations are the same for both the legal and illegal trade) and will ensure
consistency in the drugs that are regulated in the ACT. The DDA will also have a
separate Regulation that will apply this Regulation to the DDA and will also
include another schedule that is needed for the licensing scheme for the
manufacture of drugs in part 2 of the DDA.
This section sets out the name of the Regulation as the Criminal Code
Regulation 2005.
Subsection (1) provides that the regulation commences on the day the
Criminal Code (Serious Drug Offences) Amendment Act 2004 commences. For
the Act to operate effectively it is necessary to have the regulations in place
on the day of commencement.
Subsection 2 provides that item 39 in
schedule 1, part 1.1, ketamine, commences on 1 May 2005. It is
appropriate to delay the commencement of this item. Ketamine is available
presently on prescription and it’s listing in this Regulation as a
controlled drug will subject it to tighter control. Ketamine has been abused in
relation to drink spiking. 1 May 2005 is the date it is to be scheduled in the
Standard for the Uniform Scheduling of Drugs and Poisons (SUSDP).
This section provides that the dictionary is part of the regulation.
This section provides that notes are explanatory and not part of the
regulation.
This section explains what a ‘controlled drug’ is for the
purposes of chapter 6 of the Criminal Code. A controlled drug is a substance
listed in schedule 1 of this Regulation and any ‘associated drug’ or
‘related drug’. The substances listed in schedule 1 of this
regulation are taken from schedules 8 and 9 of SUSDP report no. 19. The
SUSDP forms the basis for the scheduling and control of substances in Australia,
and was the basis upon which the lists of ‘drugs of dependence’ and
‘prohibited substances’ were prepared for the 1993 Regulations. The
schedule uses the Criminal Code heading, ‘controlled drugs’ but also
incorporates the terms ‘drugs of dependence’ and ‘prohibited
substances’, which are terms that are used in the DDA.
‘Associated drugs’ are the active principles of a substance
mentioned in schedule 1 or any salt or derivative (a preparation or mixture) of
such a drug. A ‘related drug’ is a substance that bears a specific
chemical relationship to a schedule 1 drug but is not specifically listed.
Similar provisions have existed in ACT drug schedules since 1989 (see the
Drugs of Dependence Ordinance 1989).
This section explains that a ‘controlled plant’ is a growing
plant referred to in schedule 2. The list has been taken from schedule 1 of
the DDA, which will be repealed by the Code Amendment Act, except for
mitragyna speciosa, which is an additional plant that has been added to the
SUSDP and accordingly added to schedule 2. In addition the entry for
psilocibin has been corrected to psilocybe. No quantities have been listed
except for cannabis and the papaver species (opium), two substances shown to
have a market in Australia.
‘Controlled precursors’ are those substances that can be used to
make a controlled drug. For example, psuedoephidrine is commonly contained in
cold and flu tablets. It is also a key chemical component for methamphetamine.
The list of precursors in schedule 3 has been prepared from the list of category
1 substances in the Code of Practice for Supply Diversion into Illicit Drug
Manufacture and additional substances listed in other Australian jurisdictions.
The Plastics and Chemicals Industries Association and Science Industry Australia
produce the Code of Practice. The list predominantly reflects current trends in
the production, supply and use of amphetamine type substances. Quantities have
been set with regard to the amount of precursor it takes to manufacture the
controlled drug it makes.
The penalties in chapter 6 are structured according to the quantity involved in the offence. This section makes clear that the quantities that are ‘trafficable’, ‘commercial and ‘large commercial’ for each substance listed are the quantities listed in columns 3, 4, and 5 for each substance.
This section makes clear that the quantities listed in schedule 1 are a pure quantity for the quantity listed in columns 3, 4, and 5. The provision is intended reinforce the effect of section 601(2) of the Criminal Code 2002.