Drug Misuse and Trafficking Act Explained

At Andrew Byrnes Law Group, we are criminal defence lawyers with heaps of relevant experience defending and representing those charged with drug offences . Whether your charge is possession, supply, manufacturing, or trafficking, rest assured that we'll help you secure the possible outcome for your case.

The Drug Misuse and Trafficking Act 1985 is a New South Wales (NSW) law that contains criminal offences relating to the possession, supply, or production of drugs. The Act covers a broad range of substances including illegal drugs, controlled substances and prescription drugs. The legislation also deals with other matters relating to the possession, supply, or production of drugs.

Drug Misuse and Trafficking Act applies to anyone who has possession of a dangerous drug without holding a license for it. It does not apply to people who have in their possession small amounts for personal use as long as there is no intention to sell or supply it. This article will provide an overview of the key provisions of the Act.

What is the Drug Misuse and Trafficking Act (DMTA)?

The Drug Misuse and Trafficking Act ( DMTA ) is the primary drug control legislation in NSW. The Act seeks to prevent the misuse and trafficking of illicit drugs and to provide for their seizure and destruction.

The DMTA defines a number of offences relating to the possession, supply, manufacture, and cultivation of illicit drugs. These offences carry significant penalties, including imprisonment.

The Act also provides for a range of civil forfeiture orders which allow the police to seize assets that are suspected of being used in connection with drug offences.

The DMTA has been amended a number of times since it was first enacted in 1985, most recently in 2016. The 2016 amendments introduced a number of changes to the Act, including:

• making it an offence to possess or supply a prohibited plant, prohibited drugs, Schedule 9 substance, or psychoactive substance
• increasing the penalties for a range of drug offences
• introducing new civil forfeiture orders
• expanding the powers of police and other enforcement agencies.

The amendments also included a number of provisions aimed at minimising the harms associated with drug use, including:

• expanding the eligibility criteria for treatment and rehabilitation services
• drug exhibits to be destroyed unless there is a local court order to the contrary
• establishing a new offence of possessing or selling a drug utensil.

The DMTA remains the cornerstone of drug law reform in New South Wales and will continue to play an important role in protecting the community from the harms associated with illicit drugs.

Drug Offences Under DMTA

Possession of Precursor or Drug Manufacture Apparatus: A person who has possession of anything that can be used to manufacture a prohibited drug, including a chemical reactor, extractor, separator, or any other type of apparatus, (Section 24A)

Supply: A person 18 years old who knowingly takes part in the supply of a prohibited drug, and supplies to a person under 16 years old is guilty of an offence (Section 25)

Cultivation: A person who cultivates a prohibited plant by enhanced indoor means and exposes the cultivation process to a child is guilty of an offence. (Section 23A)

Manufacture: A person who knows and takes part in the manufacturing process or produces a prohibited drug; as well as a person who exposes the process to a child is guilty of an offence (Section 24)

Conspiring: An individual who collaborates with another person or people to commit an offence under this division is guilty of a crime and faces the same fines, penalties, and forfeiture as if he or she had committed the primary violation.

Aiding and abetting: A person who aids abets, advises, solicits, or incites the commission of an offence under this division is guilty of an offence and liable to the same penalties, pecuniary fines, and forfeiture as if he or she had committed the underlying crime. (Section 27)

Traffickable quantity: A person who has in his or her possession an amount of a prohibited drug that is not less than the traffickable quantity of the prohibited drug shall be considered to have the prohibited drug in his or her possession for supply.

Penalties for Offences

The penalties for drug offences under the DMTA are significant and can include imprisonment.

Supply: Under section 24, the penalty for imprisonment for 2 years—to a maximum penalty of imprisonment for 2 years and 6 months; while offence under section 25A or offence of supplying prohibited drugs on an ongoing basis is a penalty of 4,200 penalty units or imprisonment for 25 years or both.

Cultivation for Large Commercial Quantity: A fine of 5,000 penalty units or imprisonment for life, or both

Manufacture: The maximum penalty for an offence under section 24 (2A) is a fine of 4,200 penalty units or imprisonment for 25 years or both.

Conspiring: A fine of 3,500 penalty units or imprisonment for 20 years, or both

Defences of Drug Possession

The Drug Misuse and Trafficking Act 1985 (NSW) (the Act) is the primary drug legislation in New South Wales. The Act creates offences for the possession, use, cultivation and supply of prohibited drugs.

The penalties for drug offences under the Act are severe and can result in a term of imprisonment. However, there are a number of defences that may be available to an accused person.

Some of the common defences to drug offences include:

Duress: where a person is forced to commit an offence under the Act by threats of violence

Necessity: where a person commits an offence under the Act to prevent a greater evil

Self-defence: where a person uses force in self-defence, and their actions are proportionate to the threat they face.

Other defences that may be available include:

Mistaken identity: where the police have arrested the wrong person

Lack of knowledge: where a person did not know that the substance was a prohibited drug

Mental illness: where a person suffers from a mental illness that affects their ability to understand their actions.

If you have been charged with a drug offence, it is important that you seek legal advice as soon as possible. A lawyer will be able to advise you of the defences that may be available in your case. 

Protect Your Rights – Choose a Drug Defence Lawyer

Andrew Byrnes Law Group is a law firm that specialises in criminal defence law. We are experienced in all areas of criminal law, including drug offences.

Though we are based in Canberra, we have a wealth of experience in defending clients who have been charged with drug offences in NSW. We have a proven track record of achieving favourable outcomes for our clients.

We understand that being charged with a drug offence can be a daunting experience. The consequences of a conviction can be significant, including a prison sentence and a criminal record. We will review your case and provide you with advice on the best way to proceed.

If you have been charged with a drug offence, we urge you to contact us as soon as possible to discuss your options.

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