Drug law in Australia
Please note: This information does not constitute legal advice and should not be relied upon in this way. The information is correct at the time of publication. For information specific to your situation contact a legal aid service in your state or territory.
Although we think of some drugs being legal, and others being illegal, many drugs are somewhere in between. Some substances are legal, but there are laws restricting their use or sale. Others are illegal to use, possess or produce.
A range of terms have been used to describe new psychoactive substances (NPS), including new and emerging drugs (NEDs), synthetics, legal highs, herbal highs, party pills, herbal ecstasy, bath salts, drug analogues and synthetic cannabis.
The laws surrounding NPS are complex, constantly changing and differ between states/territories, but in general they are increasingly becoming stronger.
In Queensland, New South Wales, and South Australia there is now a ‘blanket ban’ on possessing or selling any substance that has a psychoactive effect other than alcohol, tobacco and food.
In other states and territories in Australia specific NPS substances are banned and new ones are regularly added to the list. This means that a drug that was legal to sell or possess today, may be illegal tomorrow. The substances banned differ between these states/territories (G. Barnes, personal communication, April 23, 2014).
See below for an outline of laws relating to individual drugs in Australia. For more detailed information contact a legal aid service in your state or territory.
There are laws that govern how alcohol may be used. These laws may differ depending on the state, territory or local area. For example, in some areas local by-laws make it illegal to drink alcohol in public places such as beaches, parks and streets.
It is an offence for a person who is under 18 years of age to buy, receive or drink alcohol on licensed premises, unless they are with a parent or guardian.
In some states in Australia, it is also an offence to supply a person under 18 years of age with alcohol in a private home, unless the young person’s parent or guardian has given permission and the alcohol is supplied in a responsible manner. This is known as secondary supply.
It is illegal to drive under the influence of alcohol.
Penalties for breaking these laws can include fines, imprisonment and disqualification from driving.
Employers have legal obligations in relation to health and safety of their workers and people who visit their workplace. Find out more about the responsibilities of employers and employees.
Federal and state laws make it an offence to sell or supply tobacco products to people under 18 years of age. It is also illegal for anyone under 18 years to purchase tobacco products.
There are laws that regulate and restrict how tobacco products are advertised, promoted and packaged.
There are also laws and regulations that restrict smoking in public areas such as shopping centres, cafes and workplaces. Most states and territories have laws that ban smoking in cars with children.
Inhalant use is not a criminal offence in any Australian state or territory.
In recent years, some Australian states and territories have revised police powers to intervene in inhalant use in two main ways. Police are authorised to:
It is also illegal in some states and territories for shopkeepers to sell products to someone if they believe they are to be used for inhaling.
Use of amphetamines is restricted. They can only be prescribed by a medical practitioner for medical reasons.
Federal and state laws provide penalties for possessing, using, making, selling or driving under the influence of amphetamines without a prescription from an authorised person. There are also laws against forging or alerting a prescription or making false representation to obtain amphetamines or a prescription for them. Laws have been introduced that prevent the sale and possession of ice pipes in some states and territories.
Using benzodiazepines without a prescription from a doctor, or selling or giving them to someone else, is illegal. There are also laws against forging or altering a prescription or making false representation to obtain benzodiazepines or a prescription for them.2
In 2014, in response to concerns about the use and harms associated with the benzodiazepine, alprazolam (Xanax®), it was rescheduled under the Pharmaceutical Benefits Scheme (PBS) as a Schedule 8 drug. Doctors must now follow additional state and territory laws when prescribing alprazolam and must notify, or receive approval from, the appropriate health authority.1
The active ingredient in betel nut is arecoline, which is a Schedule 4 poison (prescription only medicine) and therefore is illegal to possess or sell without proper authority.
Using buprenorphine without a prescription from a doctor, or selling or giving it to someone else, is illegal. There are also laws against forging or altering a prescription or making false representation to obtain buprenorphine or a prescription for it.2
Legally produced ketamine is a restricted substance and only a doctor or vet may prescribe or administer it. All other ketamine is illegal in Australia.
Federal and state laws provide penalties for the illegal use, possession, production, selling or driving under the influence of ketamine. Penalties can include fines, imprisonment and disqualification from driving.
It is illegal to import khat into Australia for personal use. Khat can only be imported for medical and/or scientific use. Importing khat without a permit is subject to fines or prosecution. For more information visit the Australian Government’s Department of Health website.
The import, advertising and sale of kava in Australia are strictly controlled. Kava is listed as a controlled substance under the Customs (Prohibited Imports) Regulations Act.
Khat is not illegal in Australia, but its import is very strictly controlled. It is legal to import khat for personal use only. A person must obtain a Licence to Import khat.
For more information, see this 2012 publication from the National Drug Law Enforcement Research Fund (NDLERF) Law enforcement and khat: an analysis of current issues [PDF: 1.1MB](new window)
Under the Pharmaceutical Benefits Scheme (PBS), oxycodone is a Schedule 8 drug. Doctors must follow state and territory laws when prescribing oxycodone and must notify, or receive approval from, the appropriate health authority.
The following drugs are some of the drugs that are illegal in Australia. Federal and state laws provide penalties for possessing, using, making or selling them, or driving under their influence.
There are also laws that prevent the sale and possession of bongs and other smoking equipment in some states and territories. (For example, Victoria has passed legislation that will ban the sale of cannabis water pipes (bongs) from January 2012.)
Use of methamphetamine (ice) is against the law. Federal and state laws provide penalties for possessing, using, making, selling, importing or exporting, or driving under the influence of methamphetamine. The importation or exportation and the procuring of precursor drugs (such as pseudoephedrine) with the intention of manufacturing a controlled drug, is also against the law. Laws have been introduced that prevent the sale and possession of ice pipes in some states and territories.
Drug laws in Australia distinguish between those who use drugs and those who supply or traffic drugs.
The Federal Customs Act covers the importing of drugs, and each state has its own laws governing the manufacture, possession, distribution and use of drugs, both legal and illegal.
The Drugs, Poisons and Controlled Substances Act (DPCSA) includes these major drug offences:
Use includes smoking, inhaling of fumes, or otherwise introducing a drug of dependence, into a person's body (including another person's body).
Possession is the most common offence. Possession means having control or custody of a drug. Knowledge of such possession must be proven in court. Possession applies both to drugs found on the person or their property, unless it is proven the drugs do not belong to that person.
Cultivation is the act of sowing, planting, growing, tending, nurturing or harvesting a narcotic plant.
Trafficking is a very serious offence. It includes the preparing of a drug of dependence for trafficking; manufacturing a drug of dependence; or selling, exchanging, agreeing to sell, offering for sale or having in possession for sale, a drug of dependence. If this is done in commercial quantities, the penalties are extremely severe.
It is illegal to drive under the influence of drugs. Breaking this law carries penalties including disqualification from driving, heavy fines and/or imprisonment.
Some states have introduced random roadside testing for cannabis and amphetamines.
Penalties for breaking laws in relation to alcohol and other drugs may include fines, imprisonment and disqualification from driving.
Some states and territories have drug diversion programs that refer people with a drug problem to treatment and/or education programs where they can receive help, rather than going through the criminal justice system.
For information specific to your situation contact a legal aid service in your state or territory.
Read the September 2012 issue of PolicyTalk, "Drug policy reform: Moving beyond strict criminal penalties for drugs"
Last updated: 13 June 2014
The following content is from DrugInfo dot ADF dot org dot au
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