Some of the most common drug offences are for possession, use and supply of prohibited drugs. Each drug offence has specific legal 'elements' which the prosecution must prove beyond reasonable doubt. In this section, we examine the necessary legal elements for the offence of use. These elements are established by the terms of the legislation, as interpreted by precedent court decisions.
Using an illegal drug (also known as 'self-administration') is an offence under section 12 of the Drug Misuse and Trafficking Act 1985 (NSW). The police must prove that the substance consumed was a prohibited drug. Obviously they cannot analyse the substance if it has been completely consumed, and blood tests can only be taken by a doctor after arrest. So for most convictions they must rely on admissions made by the accused.
Intoxication as a defence to criminal charges
Self-induced intoxication with illegal drugs does not generally provide a defence to a criminal charge (the exception is where the charge requires proof of a specific intention to do something).
The offence of administering a prohibited drug includes drink spiking, where a prohibited drug is added to someone's alcoholic drink, and the person is not aware and does not consent to the administration of the drug.
It is an offence to inject methadone. Methadone is legally prescribed subject to conditions on quantity and the 'purpose' of the prescription, which must be according to 'recognised therapeutic standards' (NSW Poisons and Therapeutic Goods Regulation 2008, reg 79).
The 'purpose' specified in methadone prescriptions is oral dose. Administration by any other method means the methadone is not lawfully prescribed under section 12(2) of the Drug Misuse and Trafficking Actand is illegal.
It is legal to possess and use some drugs, like methadone and the benzodiazepines (such as Serapax and Valium), if they have been prescribed by a doctor. It is only an offence to possess or use these drugs without a prescription.
Administering drugs to others
It is also an offence to administer a prohibited drug to someone else, for example by injecting them (Drug Misuse and Trafficking Act,section 13), or to allow someone to administer drugs (section 14). It is an offence even if the person consents to the drug being administered to them.
If someone dies
A person who injects someone else with a drug that causes their death may be charged with manslaughter. Manslaughter means causing an unlawful death where the intention was not to kill or inflict a serious injury, but to inflict a minor injury or commit some other criminal offence.
Getting medical help
If an overdose or other emergency situation involving drug use occurs, you should call an ambulance or seek other suitable medical help. It is obviously the best medical option for the person who has overdosed.
The ambulance service does not notify the police when it attends a drug overdose. Hospitals and doctors also do not notify the police if you go to them requesting medical attention.
Police sometimes do attend overdose scenes. But police guidelines are designed to encourage people to seek medical help when necessary. So police are directed not make arrests of an overdose victim or their friends, or any other people who are present at an overdose and may have also consumed drugs or be in possession of drugs.
The NSW government has licensed one medically supervised injecting centre, in Kings Cross. The injecting centre's licence is issued under section 36E of the Drug Misuse and Trafficking Act.
It is lawful for a person to use or possess a small quantity of a prohibited drug while in the injecting centre (section 36N).
Police guidelines encourage the exercise of discretion to not arrest or charge a person who is on their way to or from, or in the vicinity of, the injecting centre with possession offences. Supply offences in or near the injecting centre are policed. It is an offence for anyone except the operators of the licensed injecting centre to 'advertise or hold out in any way' that their premises are available for the administration of a prohibited drug (section 18A).
Discrimination against drug users
The social stigma attached to illicit drug use means that people who are identified as drug users can experience discriminatory treatment such as denial of services or accommodation.
Is drug addiction a disability?
Under both NSW and federal anti-discrimination laws, it is unlawful to discriminate against a person on the grounds of disability. Over a number of years, it had been frequently suggested that drug dependence was a form of disability, and therefore covered by the discrimination laws, but there was no case deciding the point.
Drug addiction and federal law
In Marsden v HREOC and Coffs Harbour RSL FCA 1619, a man was refused alcohol service at a club, and later expelled from club membership, because he was on a methadone program. He made a complaint of disability discrimination to the Human Rights and Equal Opportunity Commission (HREOC). The commission conducted an inquiry and concluded there had been no disability discrimination. Marsden appealed to the Federal Court, which decided that drug addiction could be classed as a disability for the purposes of the relevant federal legislation (the Disability Discrimination Act 1992 (Cth)).
Amendments to NSW law
In response to the Marsden decision, the NSW Government amended the NSW law (the Anti-Discrimination Act 1977) to legally allow discrimination against a person on the grounds of addiction to a prohibited drug - but only in employment.
Discrimination remains unlawful in other fields, including:
- providing goods and services
The NSW Act does not allow discrimination:
- against users of methadone or buprenorphine
- on the grounds of being hepatitis C or HIV positive, or having any other medical condition.
So, if a person is refused a job because they are on a methadone or buprenorphine program or are seropositive, they could make a claim for disability discrimination under the NSW Act.