What are the new laws and when do they commence?
New laws that commenced on 1 November 2017 insert new offences into new Part IIIA of the Drugs, Poisons and Controlled Substances Act 1981. These new provisions will make it an offence to produce, sell, supply in the course of carrying out a commercial activity, or advertise psychoactive substances.
The government has introduced the new psychoactive substance laws to specifically target new synthetic drugs, which are developed to mimic the effects of other illicit drugs of dependence such as cannabis and MDMA (also commonly known as ecstasy). While many synthetic drugs or classes of drugs are already prohibited as illicit drugs of dependence, the diversity of substances available and the speed with which new drugs are developed means the existing controls—which apply to specific substances based on their chemical composition—remain a step behind those responsible for producing and supplying them in Victoria.
What are psychoactive substances?
The new laws do not provide a definitive list of psychoactive substances. Instead, the definition of a psychoactive substance—which is based on that used in laws in the Commonwealth, New South Wales and Western Australia—captures any substance that:
- when consumed by a person, can stimulate or depress the central nervous system, resulting in hallucinations or some other significant disturbance in, or significant change to motor function, thinking behaviour, perception, awareness or mood, or can cause a state of dependence including physical or psychological addiction; or
- is represented as, or in any other way held out to be, a substance that, when consumed by a person has such a psychoactive effect, regardless of whether the substance does indeed have such an effect.
However, a psychoactive substance does not include the following types of substances, many of which are already regulated:
- a poison or controlled substance within the meaning of the Drugs, Poisons and Controlled Substances Act 1981
- a volatile substance within the meaning of Drugs, Poisons and Controlled Substances Act 1981
- medicinal cannabis
- a therapeutic good:
- included in the Register within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth
- exempted from the operation of Part 3-2 of that Act by regulations made under section 18 of that Act
- exempted from Division 2 of Part 3-2 of that Act under section 18A of that Act
- that is the subject of an approval or authority under section 19 of that Act, if used in accordance with that approval or authority, or
- that is the subject of an approval under section 19A of that Act, if used in accordance with that approval
- food within the meaning of the Food Act 1984 that complies with the Food Standards Code within the meaning of that Act
- liquor within the meaning of the Liquor Control Reform Act 1998
- a tobacco product within the meaning of the Tobacco Act 1987
- a chemical product within the meaning of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992, or
- a plant or fungus or an extract of a plant or fungus.
These exclusions do not apply where the substance is mixed with another substance that is a psychoactive substance. For example, a tobacco product mixed with another substance that has a psychoactive effect when consumed or which is represented as having a psychoactive effect when consumed would be a psychoactive substance.
The definition of psychoactive substance is intended to be capable of covering a broad range of substances, including those that may only become available in the future. However, the requirement that any disturbance or change to motor function, thinking behaviour, perception, awareness or mood be significant ensures that the new laws do not capture otherwise legitimate products that may have some very low-level psychoactive effects.
For example, while products such as chocolate, coffee and caffeine-based energy drinks may make a person feel good or slightly more alert when they consume it, it is not intended that these substances would be captured on the basis that the changes resulting from consumption are not considered significant (these substances are also excluded from the definition of psychoactive substances as types of food within the meaning of the Food Act 1984, where they comply with the Food Standards Code).
By contrast,a substance that makes a consumer feel 'high' or results in the consumer feeling a state of euphoria or a loss of control is intended to be captured by the new laws.
When is a substance represented as having a psychoactive effect?
As outlined above, the new laws will capture any substance that is represented as, or in any other way held out to be, a substance that, when consumed by a person has such a psychoactive effect, regardless of whether the substance does indeed have such an effect.
Representations may be explicit. For example, oral or written comments likening the effects of the substance to those of another drug of dependence, getting 'high', or helping a person party. However, there may be many other ways in which a substance could be represented as having a psychoactive effect depending on the circumstances of each individual case. This could include:
- the branding or name of a substance—for example, selling the substance under a name commonly known as a psychoactive substance
- the marketing of a substance—for example, substances marketed as 'legal highs', 'herbal highs'
- the packaging of a substance—for example, packaging that includes images of marijuana leaves, or psychedelic imaging
- the form of the substance—for example, pills, capsules or dried leaves that are designed to look like a drug of dependence, and
- the location at which the substance is being sold—for example, selling ‘research chemicals’ or ‘bath salts’ in a tobacconist.
It should also be noted that the new laws provide that a substance sold with a warning (such as on the packaging) that it is 'not for human consumption' is not determinative. Substances with such a warning could still fall within the definition of a psychoactive substance if they otherwise meet the definition of a psychoactive substance.
What conduct is prohibited under the offence of producing a psychoactive substance?
The new laws prohibit the production of psychoactive substances. The offence will apply where a person produces a substance knowing or suspecting that it is a psychoactive substance.
Produce is defined to mean make, prepare, process, extract, refine, package or label. That means, the offence applies not just to producing the psychoactive substance itself but also to such conduct as the packaging or labelling of psychoactive substances.
What conduct is prohibited under the offences of selling or supplying a psychoactive offence?
The new laws create two new offences relating to the sale and supply of psychoactive substances.
The first offence will apply where a person sells a substance that they know or reasonably suspect is a psychoactive substance.
Sell is defined broadly and includes offering or exposing for sale and agreeing to sell.
The second offence applies where a person supplies, in the course of carrying out a commercial activity, a substance that they know or reasonably suspect is a psychoactive substance.
This second offence is intended to ensure that persons cannot avoid criminal liability by offering to supply a psychoactive substance for free when, for example, a customer purchases a certain product or spends a certain amount on other items—the free steak knives scenario.
What conduct is prohibited under the offences of advertising a psychoactive substance?
The new laws create two new offences relating to the advertising of psychoactive substances.
Under these offences, it will be illegal for a person to:
- display or cause or permit to be displayed on or inside a public place or a vehicle or vessel that is in a public place an advertisement; and
- either intend that the advertisement promote the consumption or sale of a psychoactive substance, or be aware of a substantial risk that the advertisement may have that effect.
Advertisement is defined broadly to mean any words, whether spoken or written, any pictorial representation or design or any other representation by any means at all. This could include signs, banners, posters, and audio, visual and audio visual recordings.
What are the penalties for producing, selling, supplying and promoting psychoactive substances?
Under the new laws, anyone caught producing, selling, or promoting synthetic drugs faces up to two years in prison and/or a fine of over $38,000. Where the offence is committed by a body corporate, the maximum fine rises to over $190,000.