Drug Misuse and Trafficking Act 1986
The Drug Misuse and Trafficking Act 1986 is the legislation that creates drug offences in NSW.
Below is the law relating to common offences in the Drug Misuse and Trafficking Act 1986.
Possessing a prohibited drug
The offence of possessing a prohibited drug is found in section 10 of the Drug Misuse and Trafficking Act 1986, which reads:
(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.
Section 21 provides for the maximum penalty for possessing a prohibited drug as follows:
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.
Read more about possessing a prohibited drug here
Supplying a prohibited drug
The offence of supplying a prohibited drug is found in section 25 of the Drug Misuse and Trafficking Act 1986, which reads:
(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).
The penalties for drug supply are found in division 2 of the Drug Misuse and Trafficking Act 1986.
Maximum imprisonment terms are outlined as follows:
Quantity | If Local Court | If District Court | If District Court + child is exposed in manufacture |
Small Qty | 2 years imprisonment and/or $5,500 fine | 15 years imprisonment and/or $220,000 fine | 18-years imprisonment and/or $264,000 fine |
Between Small and Commercial Qty | 2 years imprisonment and/or $11,000 fine | 15 years imprisonment and/or $220,000 fine | Same penalties as above |
Commercial Qty | Cannot be dealt with in Local Court | 20 years imprisonment and/or $385,000 fine | 25-years imprisonment and/or $462,00 fine |
Large Commercial Qty | Cannot be dealt with in Local Court | Life imprisonment and/or $550,000 fine | Life imprisonment and/or $660,000 fine |
The supply of cannabis has lower maximum penalties than other drugs. Those are as follows:
- If dealt with in the Local Court, the maximum penalty for supplying a small, trafficable, or indictable Quantity is $5,500 and/or 2 years’ imprisonment.
- If dealt with in the District Court, the maximum penalty for supplying a small, trafficable, or indictable Quantity is is $220,000 and/or 10 years’ imprisonment.
- The maximum penalty for more than commercial quantity is $385 000 and/or 15 years’ imprisonment.
- The maximum penalty for more than a large commercial quantity is $550 000 and/or 20 years’ imprisonment.
Learn more about drug supply here.
Drug weight categories
Drug weight categories are found in Schedule 1 of the Drug Misuse and Trafficking Act 1986.
Drug Weight Categories :
Prohibited Plant/Drug | Small Qty. | Trafficable | Indictable Qty |
Commercial Qty |
Large Commercial Qty. |
Cannabis Leaf | 30g | 300g | 1,000g | 25kg | 100kg |
Amphetamine | 1 g | 3.0 g | 5 g | 250.0 g | 1 Kg |
Cocaine | 1 g | 3 g | 5 g | 250.0 g | 1 Kg |
Heroin | 1 g | 3 g | 5 g | 250.0 g | 1 Kg |
Lysergic acid | 0.0008 g | 0.003 g | 0.005 g | 0.5 g | 2 Kg |
Methylamphetamine | 1 g | 3 g | 5 g | 250 g | 1 Kg |
MDMA/Ecstasy | 0.8 g | 0.75 g | 1.25 g | 125 g | 500 Kg |
Manufacture a prohibited drug
The offence of manufacturing a prohibited drug is found in section 24 of the Drug Misuse and Trafficking Act 1986, which reads:
(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.
The penalties for drug manufacture are found in division 2 of the Drug Misuse and Trafficking Act 1986.
Maximum imprisonment terms are outlined as follows;
Quantity | If Local Court | If District Court | If District Court + child is exposed in manufacture |
Small Qty | 2 years imprisonment and/or $5,500 fine | 15 years imprisonment and/or $220,000 fine | 18-years imprisonment and/or $264,000 fine |
Between Small and Commercial Qty | 2 years imprisonment and/or $11,000 fine | 15 years imprisonment and/or $220,000 fine | Same penalties as above |
Commercial Qty | Cannot be dealt with in Local Court | 20 years imprisonment and/or $385,000 fine | 25-years imprisonment and/or $462,00 fine |
Large Commercial Qty | Cannot be dealt with in Local Court | Life imprisonment and/or $550,000 fine | Life imprisonment and/or $660,000 fine |
Learn more about drug manufacturing here.
Cultivating a prohibited plant (cannabis)
The offence of cultivating a prohibited plant is found in sections 23 and 23A of the Drug Misuse and Trafficking Act 1986, which read:
23 Offences with respect to prohibited plants
(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.
23A Offences with respect to enhanced indoor cultivation of prohibited plants in presence of children
(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.
The penalties for cultivating a prohibited plant are found in Division 2 of the Drug Misuse and Trafficking Act 1986.
Where the number of prohibited plants is not more than the “indictable quantity”, the offence of cultivating a prohibited plant can be finalised in the Local Court with a maximum penalty of two years imprisonment unless the prosecutor or the person charged with the offence elects to have it dealt with on indictment.
When dealt with on indictment and finalised in the District Court, the penalties for this offence depend upon the quantity of the cultivated plant. For charges relating to cannabis, this is determined by the number of plants.
The quantity categories for cannabis are:
- Small quantity: 5 plants;
- Indictable quantity: 50 plants;
- Commercial quantity: 250 plants; and
- Large commercial quantity: 1,000 plants.
If dealt with on indictment, the cultivation a prohibited plant carries a maximum penalty of 10 years imprisonment and/or a fine of 2,000 penalty units (currently $220,000) where the offence involves less than a commercial quantity.
The cultivation of a prohibited plant carries a maximum penalty of 15 years imprisonment and/or a fine of 3,500 penalty units (currently $385,000) where the offence involves not less than a commercial quantity of cannabis plant.
If no less than a “large commercial quantity” is involved, the maximum penalty is 20 years imprisonment and or/ 5,000 penalty units ($550,000) where the offence involves cannabis, or life imprisonment in all other cases.
The penalties for cultivating prohibited plants by enhanced indoor means and to do so for a commercial purpose are the same as those without; however, the number of plants necessary to meet each quantity category is less. For cannabis plants cultivated by enhanced indoor means, the quantity categories are:
- Small quantity: 5 plants;
- Indictable quantity: 50 plants;
- Commercial quantity: 50 plants; and
- Large commercial quantity: 200 plants.
Cultivating prohibited plants by enhanced indoor means in the presence of a child aggravates these offences, and the maximum penalty becomes 24 years imprisonment and/or a fine of 6,000 penalty units (currently $660,000).
Learn more about the offence of cultivating a prohibited plant here.