2016
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
Justice Legislation Amendment (Drug Offences) Bill 2016
SERIAL NO. 166
EXPLANATORY STATEMENT
GENERAL OUTLINE
The purpose of the Justice Legislation Amendment (Drug Offences) Bill 2016 is to ensure that the Misuse of Drugs Act contains relevant, up to date terminology and definitions, consistent with other Australian jurisdictions and current drafting practice.  The Bill will also ensure that offences and penalties are proportionate to the relevant criminal conduct.
The Bill will also amend all offences in the Misuse of Drugs Act and Misuse of Drugs Regulations so that they comply with the principles of criminal responsibility in Part IIAA of the Criminal Code.  In doing so, a number of evidentiary provisions of the Misuse of Drugs Act are also amended.
NOTES ON CLAUSES
Part 1	Preliminary matters
Clause 1.	Short Title
This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Justice Legislation Amendment (Drug Offences) Act 2016.
Clause 2.	Commencement
This is a formal clause which provides when the Act will commence.  The Act will commence on a day fixed by the Administrator by Gazette notice.
Part 2			Amendment of Misuse of Drugs Act
Clause 3.		Act amended
This Part of the Bill will amend the Misuse of Drugs Act.
Clause 4.		Section 3 amended
Clause 4 omits the definitions of adult, analyst, cultivate, dangerous drug, Indigenous community, manufacture, prohibited plant, steals and unlawful.  Many of these definitions are then updated either in section 3 or other sections of the Misuse of Drugs Act.  A number of these definitions are removed permanently as they are no longer required.
The definitions of ‘analyst’, ‘veterinarian’, ‘prohibited plant’ and ‘supply’ are redrafted to reflect current drafting practice.
Definitions are also added for ‘drug analogue’, ‘firearm’, ‘infringement notice’, ‘infringement notice offence’ and ‘prescribed amount’ as a result of other amendments to the Misuse of Drugs Act.
The definition of ‘adult’ in section 3(1) is removed, with the definition of ‘adult’ in section 17 of the Interpretation Act is to be relied upon.
Clause 4 amends the definition of ‘cultivate’ to complement section 43BG of the Criminal Code (complicity and common purpose) and will ensure that all participants in the cultivation are captured by the definition, including those who guard or conceal the prohibited plant.  The amended definition is consistent with the Model Criminal Code and other Australian jurisdictions.
The definition of ‘dangerous drug’ is amended to reflect current drafting practice and the provision of definitions for ‘Schedule 1 drug’ and ‘Schedule 2 drug’, given these terms have not previously been defined in the Misuse of Drugs Act.  The definition of ‘dangerous drug’ also reflects the extended definition contained in section 3(2) which includes drug analogues.
The definition of ‘Indigenous community’ is amended to reflect the fact that the Northern Territory National Emergency Response Act 2007 (Cth) was repealed by the Stronger Futures in the Northern Territory Act 2012 (Cth).  The amended definition no longer refers to section 4B, which is omitted (see clause 5 below), and instead simply refers to ‘an area prescribed by regulation’.  Consequentially to this amendment regulation 6A of the Misuse of Drugs Regulations is replaced with new regulation 2A, to reflect the fact that section 4B of the Misuse of Drugs Act is to be omitted (refer to clause 40 below).
Clause 4 also amends the definition of ‘manufacture’ so that it is consistent with the Model Criminal Code and other Australian jurisdictions.
The definition of ‘prohibited plant’ is amended to reflect current drafting practice.
New definitions are inserted for ‘Schedule 1 drug’ and ‘Schedule 2 drug’ as, despite frequent reference, these terms have not previously been defined in the Misuse of Drugs Act.
The definition of ‘steals’ is omitted to reflect the amendments to former section 11, now section 11Y (refer to clause 15 below).
The definition of ‘unlawful’ is omitted due to the operation of section 43BE under Part IIAA of the Criminal Code, which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.
Section 3(2)(b) is amended to reflect current drafting practice and the updated definition of drug analogue in section 4B (see clause 5 below).
Section 3(4) is amended to reflect current drafting practice.
The clause amends the definition of ‘takes part in’ in section 3(6) so that it is consistent with the Model Criminal Code and other Australian jurisdictions and will include a person who ‘exercises control or direction’. It also complements the amended definitions of ‘manufacture’ and ‘cultivate’.
The clause also makes a number of other amendments to reflect current drafting practice.
Clause 5.		Section 4B replaced
As noted above, in relation to clause 4, the definition of ‘Indigenous community’ in section 4B is omitted.
New section 4B inserts a new definition of ‘drug analogue’ which complies with the definition agreed to at a national level by the Intergovernmental Committee on Drugs.
The new definition does not narrow or broaden the current NT definition as the definition is already based on the Commonwealth Criminal Code, from which the national definition was based, however, aids the interpretation and identification of analogue drugs, by scientists, by reordering the definition, clarifying ambiguous references and removing duplicate references.
New section 4C is a standard clause that provides that Part IIAA of the Criminal Code applies to an offence against the Misuse of Drugs Act.  Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof.  Part IIAA also defines, or elaborates on, certain concepts commonly used in the creation of offences.
Clause 6.		Sections 5 to 8 replaced
This clause amends the offences contained in sections 5-8 of the Misuse of Drugs Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Current section 5, supplying a dangerous drug, is converted into 6 new provisions which cover relevant conduct (sections 5, 5A, 5B, 5C, 5D and 5E).
Amended section 5 provides for the offence of supplying a commercial quantity of a dangerous drug.  The fault element for section 5(1)(a) is intention and for section 5(1)(b) is recklessness.  Absolute liability applies to section 5(1)(c), regarding the quantity of the drug.
New section 5A provides for the offence of supplying less than a commercial quantity of a dangerous drug.  The fault element for section 5A(1)(a) is intention and for section 5A(1)(b) is recklessness.  Absolute liability applies to section 5A(1)(c), regarding the quantity of the drug.
Clause 6 also increases the monetary penalty for supplying a Schedule 2 dangerous drug (new section 5A) from 85 penalty units to 500 penalty units to reflect the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment is 5 years, the equivalent monetary penalty should be 500 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
New section 5B provides for the offence of supplying a commercial quantity of a dangerous drug, to a child.  The fault element for section 5B(1)(a) is intention and for section 5B(1)(b) is recklessness.  Absolute liability applies to section 5B(1)(c) and (d), regarding the quantity of the drug and the fact that the person who was supplied the drug was a child.
New section 5C provides for the offence of supplying less than a commercial quantity of a dangerous drug, to a child.  The fault element for section 5C(1)(a) is intention and for section 5C(1)(b) is recklessness.  Absolute liability applies to section 5C(1)(c) and (d), regarding the quantity of the drug and the fact that the person who was supplied the drug was a child.
New section 5D provides for the offence of supplying less than a commercial quantity of a dangerous drug, to an indigenous community.  The fault element for section 5D(1)(a) is intention and for section 5D(1)(b) is recklessness.  Absolute liability applies to section 5D(1)(c), (d) and (e), regarding the quantity of the drug, the fact that the drug was a Schedule 2 dangerous drug and the fact that the person supplied the drug in an indigenous community.
New section 5E replaces current section 5(1) and provides for the extraterritorial operation of sections 5 to 5D.
In converting offences so that they comply with Part IIAA of the Criminal Code, a number of offences have been reordered; current section 6, receiving or possessing tainted property, is now section 8 (see below).
Current section 7, cultivation, is converted into 5 new provisions which cover relevant conduct (sections 6, 6A, 6B, 6C and 6D).
Amended section 6 provides for the offence of cultivation of a commercial quantity of a prohibited plant.  The fault element for section 6(1)(a) is intention and for section 6(1)(b) is recklessness.  Absolute liability applies to section 6(1)(c), regarding the quantity of the prohibited plant.
New section 6A provides for the offence of cultivation of a traffickable quantity of a prohibited plant.  The fault element for section 6A(1)(a) is intention and for section 6A(1)(b) is recklessness.  Absolute liability applies to section 6A(1)(c), regarding the quantity of the prohibited plant.
New section 6B provides for the offence of cultivation of less than a traffickable quantity of a prohibited plant.  The fault element for section 6B(1)(a) is intention and for section 6B(1)(b) is recklessness.  Absolute liability applies to section 6B(1)(c), regarding the quantity of the prohibited plant.
Clause 6 also increases the monetary penalty for cultivation of less than a traffickable quantity of a prohibited plant (new section 6B) from 40 penalty units to 200 penalty units to reflect the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment is 2 years, the equivalent monetary penalty should be 200 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
New section 6C provides for the offence of cultivation of a commercial quantity of a prohibited plant, in the presence of a child.  This provision is a new offence to provide an aggravated penalty if a child is present.  The offence reflects the serious nature of offending involving children and is consistent with the higher maximum penalty which is provided for supplying a dangerous drug to a child.  The fault element for section 6C(1)(a) is intention and for sections 6C(1)(b) and (c) is recklessness.  Absolute liability applies to section 6C(1)(d), regarding the quantity of the prohibited plant.
New section 6D provides for the offence of cultivation of a traffickable quantity of a prohibited plant, in the presence of a child.  This provision is a new offence to provide an aggravated penalty if a child is present.  The offence reflects the serious nature of offending involving children and is consistent with the higher maximum penalty which is provided for supplying a dangerous drug to a child.  The fault element for section 6D(1)(a) is intention and for sections 6D(1)(b) and (c) is recklessness.  Absolute liability applies to section 6D(1)(d), regarding the quantity of the prohibited plant.
Current section 8, manufacture and production, is converted into 3 new provisions which cover relevant conduct (sections 6E, 6F and 6G).
The reference to ‘production’ in relation to the offences of manufacturing a dangerous drug is removed as the amended definition of ‘manufacture’ in section 3(1) of the Misuse of Drugs Act now includes production.
New section 6E provides for the offence of manufacture of a commercial quantity of a dangerous drug.  The fault element for section 6E(1)(a) is intention and for section 6E(1)(b) is recklessness.  Absolute liability applies to section 6E(1)(c), regarding the quantity of the dangerous drug.
New section 6F provides for the offence of manufacture of less than a commercial quantity of a dangerous drug.  The fault element for section 6F(1)(a) is intention and for section 6F(1)(b) is recklessness.  Absolute liability applies to section 6F(1)(c), regarding the quantity of the dangerous drug.
Clause 6 also increases the maximum penalty for manufacturing less than a commercial quantity of a Schedule 2 drug from seven to 14 years imprisonment.  This increase in penalty addresses the disparity between the maximum penalties for manufacturing less than a commercial quantity of a Schedule 1 substance (25 years imprisonment) and manufacturing less than a commercial quantity of a Schedule 2 substance (7 years imprisonment).  This increased penalty is also consistent with the Model Criminal Code penalty.  The provision of a period of imprisonment and not an equivalent monetary penalty is intentional, with reliance to be placed on section 38DA of the Interpretation Act if circumstances warrant a fine.
New section 6G provides for the offence of manufacture of a dangerous drug, in the presence of a child.  This provision is a new offence to provide an aggravated penalty if a child is present.  The offence reflects the serious nature of offending involving children and is consistent with the higher maximum penalty which is provided for supplying a dangerous drug to a child.  The fault element for section 6G(1)(a) is intention and for section 6G(1)(b) and (c) is recklessness.  Absolute liability applies to section 6G(1)(d), regarding the quantity of the dangerous drug.  As the commercial manufacture of dangerous drug already carries maximum penalties of life or 25 years imprisonment, and manufacture of a traffickable quantity carries maximum penalties of 25 or 14 years imprisonment, a separate physical element regarding the quantity of the substance has not been included.
Current section 9, possession, is converted into 5 new provisions which cover relevant conduct (sections 7, 7A, 7B, 7C and 7D).
Amended section 7 provides for the offence of possessing a commercial quantity of a dangerous drug.  The fault element for section 7(1)(a) is intention and for section 7(1)(b) is recklessness.  Absolute liability applies to section 7(1)(c), regarding the quantity of the drug.
New section 7A provides for the offence of possessing a traffickable quantity of a dangerous drug.  The fault element for section 7A(1)(a) is intention and for section 7A(1)(b) is recklessness.  Absolute liability applies to section 7A(1)(c), regarding the quantity of the drug.
Clause 6 also increases the monetary penalty for possession of a traffickable quantity of a Schedule 2 dangerous drug (new section 7A) from 85 penalty units to 500 penalty units to reflect the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment is 5 years, the equivalent monetary penalty should be 500 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
New section 7B provides for the offence of possessing less than a traffickable quantity of a dangerous drug.  The fault element for section 7B(1)(a) is intention and for section 7B(1)(b) is recklessness.  Absolute liability applies to section 7B(1)(c), regarding the quantity of the drug.
Clause 6 also increases the monetary penalty for possession of less than a traffickable quantity of a dangerous drug (new section 7B).  The penalty for possession of a Schedule 1 dangerous drug will be increased from 40 penalty units to 200 penalty units to reflect the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment is 2 years, the equivalent monetary penalty should be 200 penalty units.  The penalty for possession of a Schedule 2 dangerous drug will be increased from 17 penalty units to 50 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
New section 7C provides for the offence of possessing a traffickable quantity of a dangerous drug, in a public place.  The fault element for section 7C(1)(a) is intention and for section 7C(1)(b) is recklessness.  Absolute liability applies to paragraphs (c) and (d) of section 7C(1), regarding the location of the offence and quantity of the drug.
No penalty is currently provided for possessing a traffickable quantity of a Schedule 2 dangerous drug in a public place.  Accordingly, a maximum penalty of 7 years imprisonment is provided.  This penalty reflects the fact that the maximum penalty for possessing a traffickable quantity of a Schedule 2 dangerous drug is 5 years imprisonment and the additional aggravation of possessing the drug in a public place necessarily increases the maximum penalty.  The provision of a period of imprisonment and not an equivalent monetary penalty is intentional, with reliance to be placed on section 38DA of the Interpretation Act if circumstances warrant a fine.
New section 7D provides for the offence of possessing less than a traffickable quantity of a dangerous drug, in a public place.  The fault element for section 7D(1)(a) is intention and for section 7D(1)(b) is recklessness.  Absolute liability applies to paragraphs (c) and (d) of section 7D(1), regarding the location of the offence and the quantity of the drug.
Clause 6 also increases the monetary penalty for possessing less than a traffickable quantity of a dangerous drug in a public place (new section 7D).  The penalty for possessing a Schedule 1 dangerous drug will be increased from 85 penalty units to 500 penalty units and the penalty for possessing a Schedule 2 dangerous drug will be increased from 40 penalty units to 200 penalty units.  This amendment reflects the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment for a Schedule 1 dangerous drug is five years, and two years for a Schedule 2 dangerous drug, the equivalent monetary penalties should be 500 and 200 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
Amended section 8 provides for the offence of receiving or possessing tainted property (currently section 6).  The fault element for section 8(1)(a) and (2)(a) is intention and for section 8(1)(b) and (2)(b) and (c) is knowledge.
Clause 7.		Section 8A amended
This clause amends the offence contained in section 8A of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 8A provides for the offence of possession of precursors of dangerous drugs.  The fault element for section 8A(1)(a) is intention and for section 8A(1)(b) is recklessness.  Amended section 8A(3) provides that the defendant has the legal burden of proof in relation to a defence raised under section 8A(2).  This position is unaltered from the current section but reflects the operation of section 43BV of the Criminal Code which provides that the defendant carries the legal burden of proof only if it is expressly imposed on the defendant, in legislation.
Current section 8A(3) is an averment and, if Part IIAA of the Criminal Code were to apply, would be governed by section 43BX.  Section 43BX of the Criminal Code provides that ‘A law that allows the prosecution to make an averment does not allow the prosecution to aver any fault element of the offence’.  Current section 8A(3) avers the main fault of the offence and can no longer apply as an averment.  Accordingly, clause 7 removes section 8A(3) as an averment and replaces it with section 8A(1)(a) which requires the prosecution to prove that the person possessed the precursor with the intent that it be used, by themselves or another, in the manufacture of a dangerous drug.
The clause also makes a number of other amendments to section 8A to reflect current drafting practice.
Clause 8.		Section 8B amended
This clause amends the offence contained in section 8B of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 8B provides for the offence of possession of a document containing instructions for manufacture of a dangerous drug or precursor.  The fault element for section 8B(1)(a) and (c) is intention and for section 8B(1)(b) and (d) is recklessness.  The fault element for section 8B(3)(a) and (c) is intention and for section 8B(3)(b) and (d) is recklessness.  Amended section 8B(5) provides that the defendant has the legal burden of proof in relation to a defence raised under sections 8B(2) or (4).  This position is unaltered from the current section but reflects the operation of section 43BV of the Criminal Code which provides that the defendant carries the legal burden of proof only if it is expressly imposed on the defendant, in legislation.
Current section 8B(5) is an averment and, if Part IIAA of the Criminal Code were to apply, would be governed by section 43BX.  Section 43BX of the Criminal Code provides that ‘A law that allows the prosecution to make an averment does not allow the prosecution to aver any fault element of the offence’.  Current section 8B(5) avers the main fault of the offence and can no longer apply as an averment.  Accordingly, clause 8 removes section 8B(5) as an averment and replaces it with section 8B(1)(d) and (3)(d) which requires the prosecution to prove that the person was reckless about the fact that the equipment, implement or other article has been, or may be, used in the manufacture of a dangerous drug or precursor.
The reference to ‘or production’ is removed from section 8B as the amended definition of ‘manufacture’ in section 3(1) of the Misuse of Drugs Act now includes production.
The clause also makes a number of other amendments to section 8B to reflect current drafting practice.
Clause 9.		Section 8C amended
This clause amends the offence contained in section 8C of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 8C provides for the offence of possession of articles for use in manufacture of a dangerous drug or precursor.  The fault element for section 8C(1)(a) is intention and for section 8C(1)(b) is recklessness.  New section 8C(3) provides that the defendant has the legal burden of proof in relation to a defence raised under section 8C(2).  This position is unaltered from the current section but reflects the operation of section 43BV of the Criminal Code which provides that the defendant carries the legal burden of proof only if it is expressly imposed on the defendant, in legislation.
The reference to ‘or production’ is removed from the section 8C as the amended definition of ‘manufacture’ in section 3(1) of the Misuse of Drugs Act now includes production.
The clause also makes a number of other amendments to section 8C to reflect current drafting practice.
Clause 10.		Sections 8D to 11 replaced
In converting offences so that they comply with Part IIAA of the Criminal Code, a number of offences have been reordered.
Current section 8D, supplying a precursor knowing it is intended to be used in the manufacture or production of a dangerous drug, is now section 11X (see clause 15 below).
Current section 10, alternative verdicts, is now section 9.
Amended section 9 provides a list of offences of which the trier of fact may find the defendant guilty, if they are not satisfied beyond reasonable doubt that the person committed the prosecuted offence.  The alternative offences largely relate to the quantity of dangerous drug and the circumstances of the possession or supply.  The trier of fact may find the defendant guilty of an alternative offence, even if the defendant has not been prosecuted for or charged with the alternative offence.
In converting offences so that they comply with Part IIAA of the Criminal Code, a number of offences have been reordered; current section 11, theft of dangerous drugs, is now section 11Y (see clause 15 below).
Clause 11.		Section 11Q amended
This clause amends the offence contained in section 11Q(3) of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 11Q(3) provides for the offence of tampering, defacing, damaging or altering a drug premises notice.  The fault element for section 11Q(3)(a) is intention.  Absolute liability applies to section 11Q(3)(b), regarding the fact that a notice has been affixed to the premises.
The clause also replaces the term ‘member of the Police Force’ with ‘police officer’ to reflect current drafting practice and reliance on the definition of the term in section 17 of the Interpretation Act.
Clause 12.		Section 11S replaced
This clause amends the offences contained in section 11S of the Misuse of Drugs Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 11S(1) provides for the offence of obstructing entry to drug premises.  The fault element for section 11S(1)(a) is intention and for section 11S(1)(b) is recklessness.  Strict liability applies to section 11S(1)(c), regarding the fact that the person who has been obstructed is a police officer.
The offence at section 11S(1) and the related definition of obstruct at section 11S(4) are based on the standard obstruct offence which is applied across the Northern Territory statute book.
Amended section 11S(2) provides for the offence of intentionally warning another person about an impending search of drug premises.  The fault element for section 11S(2)(b) is intention.  Strict liability applies to section 11S(2)(a), regarding the fact that a search is about to begin or has begun.
New section 11SA replaces current section 11S(3) and separates section 11S(3) into a requirement and related offence.  
New section 11SA(1) provides that a police officer may require a person to provide their name and address if they are on or within 200 metres of drug premises, and, the officer reasonably believes the person is associated with the drug premises.  New section 11SA(2) then provides for the offence of failing to comply with a request made under section 11SA(1).  The fault element for section 11SA(2)(a) is intention and for section 11SA(2)(b) is recklessness.
Clause 13.		Section 11T amended
This clause amends the offence contained in section 11T the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 11T provides for the offence of breaching the peace on drug premises.  The fault element for section 11T(1)(a) is intention and for section 11T(1)(b) is recklessness.  Strict liability applies to section 11T(1)(c), regarding the fact that conduct occurs on drug premises.
The clause also replaces the term ‘member of the Police Force’ with ‘police officer’ to reflect current drafting practice and reliance on the definition of the term in section 17 of the Interpretation Act.
Clause 14.		Section 11V amended
Clause 14 amends section 11V of the Misuse of Drugs Act to update references to offences, as a result of the conversion and reordering of offences.  The reference to ‘sections 5 or 8’ is replaced with ‘Part II, Division 1, Subdivision 1 or section 6E(1), 6F(1) or 6G(1)’.
Clause 15.		Section 11X and 11Y inserted
In converting offences so that they comply with Part IIAA of the Criminal Code, a number of offences have been reordered.
Current section 8D, supplying a precursor knowing it is intended to be used in the manufacture or production of a dangerous drug, is now section 11X.
New section 11X provides for the offence of supplying a precursor for use in the manufacture of a dangerous drug.  The fault element for section 11X(1)(a) is intention, for section 11X(1)(b) is recklessness and for section 11X(1)(c) is knowledge.  The available statutory defences under current section 8D remain unchanged and are included in new section 11X(2).  In accordance with new section 11X(3), the defendant has the legal burden of proof in relation to a defence raised under section 11X(2).   This position is unaltered from the current section but reflects the operation of section 43BV of the Criminal Code which provides that the defendant carries the legal burden of proof only if it is expressly imposed on the defendant, in legislation.
The reference to ‘or production’ is removed from the section 11X (formerly section 8D) as the amended definition of ‘manufacture’ in section 3(1) of the Misuse of Drugs Act now includes production.
Clause 15 also increases the maximum penalty for supplying a precursor for use in the manufacture of a dangerous drug from seven to 10 years.  This increase in penalty reflects the fact that supply of precursors play a pivotal role in assisting the drug manufacturing trade.  Further, supplying a substance with the knowledge that it will be used to manufacture a dangerous drug is far more serious than the offence of possessing a precursor, for which the penalty is currently seven years imprisonment.  The provision of a period of imprisonment and not an equivalent monetary penalty is intentional, with reliance to be placed on section 38DA of the Interpretation Act if circumstances warrant a fine.
Clause 15 also increases the maximum penalty for manufacturing less than a commercial quantity of a Schedule 2 drug from seven to 14 years imprisonment.  This increase in penalty addresses the disparity between the maximum penalties for manufacturing less than a commercial quantity of a Schedule 1 substance (25 years imprisonment) and manufacturing less than a commercial quantity of a Schedule 2 substance (seven years imprisonment).  This increased penalty is also consistent with the Model Criminal Code penalty.  The provision of a period of imprisonment and not an equivalent monetary penalty is intentional, with reliance to be placed on section 38DA of the Interpretation Act if circumstances warrant a fine. 
In converting offences so that they comply with Part IIAA of the Criminal Code, a number of offences have been reordered.  Current section 11, theft of dangerous drugs, is now section 11Y.
New section 11Y provides for the offence of theft of a dangerous drug.  The fault element for section 11Y(1)(a) is intention and for section 11Y(1)(b) is recklessness.
The offence at 11Y is based on the offence of stealing under sections 209 and 210 of the Criminal Code.  Although the offending conduct may be duplicated under these provisions of the Criminal Code, the offence in the Misuse of Drugs Act has been retained so that separate maximum penalties for the theft of Schedule 1 and 2 dangerous drugs can be applied.
Clause 16.		Section 12 amended
This clause amends the offences contained in section 12 of the Misuse of Drugs Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 12(1) provides for the offence of possessing a thing for use in the administration of a dangerous drug.  The fault element for section 12(1)(a) is intention and for section 12(1)(b) is recklessness.
Amended section 12(2) provides for the offence of supplying a hypodermic syringe or needle for use in the administration of a dangerous drug.  The fault element for section 12(2)(a) is intention and for section 12(2)(b) is recklessness.
In accordance with new section 12(3A), the defendant has the legal burden of proof in relation to a defence raised under section 12(3).  This position is unaltered from the current section but reflects the operation of section 43BV of the Criminal Code which provides that the defendant carries the legal burden of proof only if it is expressly imposed on the defendant, in legislation.
Amended section 12(4) and new section 12(4A) replace current section 12(4).  By separating section 12(4), there is a clear requirement and related offence.  New section 12(4) requires a person in possession of a hypodermic syringe or needle to take reasonable care.  New section 12(4A) then provides for the offence of failing to comply with the requirement under section 12(4).  The fault element for section 12(4A)(a) is intention and for section 12(4A)(b) is recklessness.
Amended section 12(5) provides for the offence of failing to correctly dispose of a hypodermic syringe or needle.  The fault element for section 12(5)(a) is knowledge, for section 12(5)(b) is intention and for section 12(5)(c) is recklessness.
Clause 16 also amends the monetary penalty for offences under sections 12(1), (2), new section 12(4A) and section 12(5) from 17 penalty units or two years imprisonment to 50 penalty units and 6 months imprisonment.  The increase addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act, including the new offences relating to drug paraphernalia which will carry a maximum penalty of 200 penalty units or two years imprisonment.
The clause also makes a number of other amendments to section 12 to reflect current drafting practice.
Clause 17.		Sections 13 to 17 replaced
This clause amends the offences contained in sections 13 and 14 of the Misuse of Drugs Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 13 provides for the offence of self-administering a dangerous drug.  The fault element for section 13(a) is intention and for section 13(b) is recklessness.
Clause 17 also increases the monetary penalty for self-administering a dangerous drug (section 13) from 17 penalty units or two years imprisonment to 50 penalty units and 6 months imprisonment.  The increase addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act, including the new offences relating to drug paraphernalia which will carry a maximum penalty of 200 penalty units or two years imprisonment.
Amended section 14 provides for the offence of allowing another person to administer a dangerous drug.  The fault element for section 14(a) is intention and for section 14(b) is recklessness.
Clause 17 also increases the monetary penalty for allowing another person to administer a dangerous drug (section 14) from 17 penalty units or 2 years imprisonment to 50 penalty units and 6 months imprisonment.  The increase addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act, including the new offences relating to drug paraphernalia which will carry a maximum penalty of 200 penalty units or 2 years imprisonment.
Clause 17 also repeals sections 15, 16 and 17 of the Misuse of Drugs Act to avoid duplication with the Criminal Code.  The offending conduct, subject of sections 15, 16 and 17, is covered by sections 227, 258 and 260 of the Criminal Code and there is no need to duplicate the offences in the Misuse of Drugs Act.
New section 15 provides for the new offences of displaying or supplying a cocaine kit, water pipe or ice pipe.
New section 15(1) provides for the offence of displaying a cocaine kit, water pipe or ice pipe.  The fault element for section 15(1)(a) is intention and for section 15(1)(b) is recklessness.
New section 15(2) provides for the offence of supplying a cocaine kit, water pipe or ice pipe.  The fault element for section 15(2)(a) is intention and for section 15(2)(b) is recklessness.  The offence is not to be predicated on a commercial transaction and, consistent with the definition of ‘supply’ in section 3(1) of the Misuse of Drugs Act, will be made out if a person were to ‘give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration or in expectation of fee, reward or consideration’ a cocaine kit, water pipe or ice pipe to another.  Given the broad definition of ‘supply’, a person who gives away pipes etc without seeking payment will be unable to circumvent the operation of the provision.
The definitions of ‘cocaine kit’, ‘ice pipe’ and ‘water pipe’ are based on interstate definitions and have been drafted so that they remain technologically neutral.  This means that the device can be used for administering any dangerous drug and is not restricted to methylamphetamine or cannabis (the most common drugs administered by pipes).  By including a device, ‘whether in its original form or with an adjustment or modification’, a person will not be able to avoid the operation of the legislation by selling components for pipes etc. that require assembly.  The need for the device to be intended for use in the administration of a dangerous drug also addresses concern in other jurisdictions regarding the reference to a device that is ‘capable of being used’, as technically many items are ‘capable’ of being used in this way.  Accordingly, the definition is designed to capture items that are specifically made, modified or designed for use in the administration of a dangerous drug.  On this basis, items that are designed and used to administer licit substances will not be prohibited under the new provisions (for example a tobacco pipe or ‘shisha’ which is used to inhale flavoured tobacco), unless they are modified to administer dangerous drugs.  The provisions will also not apply to an ‘exempt pipe’ prescribed by regulation.
By allowing for an additional means of administering a dangerous drug to be added by way of regulation, the offences will also be applicable even if the technology used to administer dangerous drugs changes.
The definition of ‘shop or stall’ has been drafted broadly to include traditional ‘shops’ (ie business premises) in addition to market stalls, pop-up shops, car boot sales, garage sales, lawn sales etc.  This will mean that a person selling pipes etc. at a market will not be exempt from operation of the provision.  An ‘opt out’ provision has also been included in the definition of ‘shop or stall’ to allow for certain premises to be excluded.  This is necessary so that the legislation can cater for a situation whereby certain drugs are legalised, for example a medicinal form of cannabis, which may need to be administered by a particular device.
Clause 18.		Section 19Y amended
This clause amends the offences contained in section 19Y of the Misuse of Drugs Act so that they comply with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 19Y(4) provides for the offence of contravening a direction given by a police officer under s19Y(1)(a).  The fault element for section 19Y(4)(a) is intention and for section 19Y(4)(b) is recklessness.
Amended section 19Y(5) provides for the offence of contravening a direction by a police officer to provide the person’s name, address and date of birth.  The fault element for section 19Y(5)(a) is intention and for section 19Y(5)(b) is recklessness.
Clause 19.		Part IIB replaced
Clause 19 replaces current infringement notice provisions in Part IIB with new infringement notice provisions which comply with current drafting practice.
The references to infringement notice offences in Part IIB are also updated to reflect the reordering and conversion of offences.
The clause also increases the value of an infringement notice offence from 1.7 to 2 penalty units so that it may be expressed in whole dollars.
Clause 20.		Section 20 amended
Clause 20 renumbers section 20 as section 21 to reflect the reordering of provisions in the Misuse of Drugs Act.
Clause 21.		Section 21 repealed
Clause 21 repeals section 21 as, following conversion to Part IIAA of the Criminal Code, each of the offences involving a child (sections 5B, 5C, 6C, 6D and 6G) specifically provides for absolute liability or recklessness (fault element) regarding the fact that a child was involved (physical element).  Accordingly, section 21 is no longer required.
Clause 22.		Section 22 amended
Clause 22 amends section 22(1) of the Misuse of Drugs Act to update references to offences as a result of the conversion and reordering of offences.  The reference to ‘section 5, 7, 8, 9 or 11’ is replaced with ‘Part II, Division 1, Subdivision 1, 2 o4 3 or section 11Y’.
The clause also amends section 22(1) by removing the jurisdictional limit regarding the maximum penalty that may be imposed if an offence against the Misuse of Drugs Act is dealt with summarily (currently 85 penalty units or 2 years imprisonment).  Reliance is instead to be placed on section 122 of the Sentencing Act, which provides that, if hearing a matter summarily, the Court of Summary Jurisdiction must not impose a sentence of greater than 250 penalty units or 5 years imprisonment.  This amendment addresses the disparity between the maximum penalties available under the Misuse of Drugs Act and the jurisdictional limit and also ensures that drug offences are not subject to lower maximum penalties if dealt with summarily, compared with other criminal offences.
It should be noted that from 1 May 2016, the Local Court (Repeals and Related Amendments) Act 2016 will amend section 122 of the Sentencing Act, by increasing the jurisdictional limit of the Court of Summary Jurisdiction from 250 penalty units to 500 penalty units.
Clause 23.		Section 24 amended
This clause amends the offence contained in section 24(2) of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 24(2) provides for the offence of disclosing an informer’s details.  The fault element for section 24(2)(a) is intention and for section 24(2)(b) is recklessness.  The available statutory defences under section 24(3) remain.  In accordance with new section 24(4), the defendant has the legal burden of proof in relation to a defence raised under section 24(3).  This position is unaltered from the current section but reflects the operation of section 43BV of the Criminal Code which provides that the defendant carries the legal burden of proof only if it is expressly imposed on the defendant, in legislation.
Clause 23 also increases the monetary penalty for disclosing an informer’s details (section 24(2)) from 85 penalty units to 200 penalty units to reflect the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment is 2 years, the equivalent monetary penalty should be 200 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
The clause also replaces the term ‘member of the Police Force’ with ‘police officer’ to reflect current drafting practice and reliance on the definition of the term in section 17 of the Interpretation Act.
As a result of the reordering of offences, the reference to ‘Division 1’ in section 24(1) has been removed.
Clause 24.	Section 25 amended
As a result of the reordering of offences, the reference to ‘Division 1’ in sections 25(1) and 25(2) has been removed.
The clause also replaces the term ‘member of the Police Force’ with ‘police officer’ to reflect current drafting practice and reliance on the definition of the term in section 17 of the Interpretation Act.
The clause also makes a number of other amendments to section 25 to reflect current drafting practice.
Clause 25.		Section 26 amended
This clause amends the offence contained in section 26(5) of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 26(5) provides for the offence of contravening an order under section 26(1).  The fault element for section 26(5)(a) is intention and for section 26(5)(b) is recklessness.
Clause 25 also increases the monetary penalty for contravening an order (section 26(5) from 85 penalty units to 200 penalty units to reflect the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment is 2 years, the equivalent monetary penalty should be 200 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
As a result of the reordering of offences, the reference to ‘Division 1’ in section 26(1) has been removed.
Clause 26.		Section 28 amended
As a result of the reordering of offences, the reference to ‘Division 1’ in section 28 has been removed.
Clause 27.		Section 32 amended
This clause amends the offence contained in section 32(3) of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 32(3) and new section 32(4) replace current section 32(3).  By separating section 32(3), there is a clear requirement and related offence.  New section 32(3) requires a person, who is authorised under section 32(1), to deliver a dangerous drug or precursor to a police officer, as soon as possible after receiving it.  
New section 32(4) then provides for the offence of contravening the requirement under section 32(3).  The fault element for section 32(4)(a) is intention and for section 32(4)(b) is recklessness.
Current section 32(3) includes a specific exemption which provides that a person is not guilty of an offence if they are authorised to supply the drug or precursor and the drug or precursor is supplied in accordance with the authorisation.  This provision has not been included in amended section 32(3) due to the operation of section 43BE under Part IIAA of the Criminal Code, which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.
Clause 27 also increases the monetary penalty for failing to deliver a dangerous drug or precursor (section 32(3)) from 17 penalty units to 200 penalty units to reflect the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment is 2 years, the equivalent monetary penalty should be 200 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
The clause also replaces the term ‘member of the Police Force’ with ‘police officer’ to reflect current drafting practice and reliance on the definition of the term in section 17 of the Interpretation Act.
The clause also makes a number of other amendments to section 32 to reflect current drafting practice.
Clause 28		Section 34 amended
This clause amends the offence contained in section 34(8) of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 34(8) and new section 34(8A) replace current section 34(8).  By separating section 34(8), there is a clear requirement and related offence.  New section 34(8) requires a person, who is to immediately produce money or any other thing that is ordered to be forfeited.  New section 34(8A) then provides for the offence of contravening the requirement under section 34(8).  The fault element for section 34(8A)(a) is intention and for section 34(8A)(b) is recklessness.
Clause 28 also increases the monetary penalty for failing to comply with a forfeiture order (section 34(8A)) from 85 penalty units to 200 penalty units to reflect the operation of section 38DA(2) of the Interpretation Act, which provides that a maximum fine is calculated by multiplying the maximum term of imprisonment by 100 penalty units.  As the maximum term of imprisonment is two years, the equivalent monetary penalty should be 200 penalty units.  The increase also addresses the disparity between penalties which has existed as a result of the uniform approach to conversion of monetary amounts into penalty units by the Justice Legislation Amendment (Penalties) Amendment Act 2010, which applied a 15% increase to penalties across the board on the basis that a more considered approach would be taken in future with respect to specific legislation.  The increased penalty is proportionate to the offending conduct and is consistent with other offences in the Misuse of Drugs Act.
Clause 29		Section 36A amended
Clause 29 amends section 36A(6) of the Misuse of Drugs Act to update references to offences as a result of the conversion and reordering of offences.  The reference to sections 5, 7, 8 and 9 is replaced with:
‘(a) an offence against Part II, Division 1, Subdivision1;
(b) an offence against section 6(1), 6A(1), 6E(1), 6F(1) or 6G(1), 7(1), 7A(1) or 7C(1)’.
The clause also omits section 36A(6)(g) of the Misuse of Drugs Act as section 233B of the Customs Act 1914 (Cth) was repealed by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005.  The offences in section 233B of the Customs Act 1914 (Cth) were replaced by Division 307 of the Criminal Code Act 1995 (Cth).  As Division 307 of the Criminal Code Act 1995 (Cth) is already listed in section 36A(6)(h), section 36A(6)(g) is no longer required.
The reference to ‘corresponding offence’ in sections 36A(3)(b) and (5) will ensure that a defendant who is convicted of an offence prior to commencement of the Justice Legislation Amendment (Drug Offences) Act 2016, will still fall under the ‘declared drug trafficker’ provisions of section 36A, even though the specific offence provision has been amended and may no longer be listed under section 36A(6).  For example, an offence against section 233B of the Customs Act 1914 (Cth) or any of the renumbered offences under Part II of the Misuse of Drugs Act.
Clause 30		Section 37 amended
Clause 30 amends section 37 of the Misuse of Drugs Act to update references to offences as a result of the conversion and reordering of offences.
As a result, the reference to ‘section 5, or 9’ in section 37(1)(c) is replaced with ‘Part II, Division 1, Subdivision 1 or 3’.
In addition, the reference to an offence ‘against section 5 that was committed in an indigenous community’ in section 37(1)(d) is replaced with ‘an offence against Part II, Division 1, Subdivision 1 that was committed in an indigenous community’.
The reference to an offence against section 9, if certain circumstances exist, in section 37(5) is replaced with ‘If, in proceedings for an offence against Part II, Division 1, Subdivision 3, other than an excluded offence’.  A definition is then provided in section 37(8) for ‘excluded offence’, which means an offence against section 7(1) or section 7B(1) in relation to a Schedule 2 drug.
The reference to ‘section 7, 8 or 9’ in section 37(6) is also replaced with ‘Part II, Division 1, Subdivision 2 or 3’.
Clause 30 also amends section 37(1) to add an additional aggravating circumstance, being the possession of:
(i) a firearm or ammunition, as defined in section 3(1) of the Firearms Act, that the person was not lawfully authorised to possess; or
(ii) an offensive weapon or prohibited weapon, each as defined in section 3 of the Weapons Control Act; or
(iii) a controlled weapon, as defined in section 3 of the Weapons Control Act, in a public place.
This will mean that a person who is in ‘actual possession’ of a firearm etc when committing an offence against Part II of the Misuse of Drugs Act will be required to serve a term of actual imprisonment, if the offence carries a maximum penalty of less than seven years imprisonment.  In this regard, it should be noted that section 37(2)(a) already requires an offender convicted of an offence which carries a maximum penalty of more than seven years imprisonment to serve a term of actual imprisonment.
The requirement for the person to be in ‘actual possession’ is necessary to ensure that the aggravating circumstance does not apply to mere ownership or control, for example, if a person has a firearms licence and firearms at their residence.  Actual possession will require the person to have physical custody or control of the firearm etc. when committing the offence.  For example, the firearm will need to be on the person or in their vehicle.
The clause also makes a number of other amendments to section 37 to reflect current drafting practice.
Clause 31		Section 38 replaced
Clause 31 repeals current section 38 as ‘attempts’ are covered under section 43BF of Part IIAA of the Criminal Code.
New section 38 provides an aggravated penalty for procuring a child under the age of 14 to commit an offence against the Misuse of Drugs Act.  The provision operates in conjunction with sections 43BG and 43BH of the Criminal Code.
Section 43BH provides that a person who procures another to engage in a criminal offence is guilty of the offence as if they had committed the offence themselves.  The provision applies whether or not the procured person has the necessary capacity etc to meet the fault elements for the offence.  Accordingly, if a person procures a child to commit an offence, despite the fact that the child may not be criminally responsible for an offence, the person is guilty.  For example, under sections 43AP and 43AQ of the Criminal Code, a child under the age of 10 is not criminally responsible for an offence and a child between the ages of 10 and 14 can only be criminally responsible if they know that their conduct is wrong.
Section 43BG provides that a person who aids, abets, counsels or procures the commission of an offence by another person, is guilty of the offence as if they committed the offence themselves.  The provision applies differently to section 43BH, however, as it requires the offence to have been committed by the other person, which necessarily includes the other person meeting the fault elements for the offence.  This provision would only apply if the child was over the age of 10 and the court determined that the child had criminal responsibility under section 43AQ of the Criminal Code.  In which case, the prosecution bears the onus of establishing that the child knows that his or her conduct is wrong.
In summary, section 38 of the Misuse of Drugs Act operates to impose a maximum penalty of life imprisonment if a person procures a child to commit an offence.
Clause 32		Section 39 amended
Clause 32 amends section 39 of the Misuse of Drugs Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
As section 39 relates to the criminal liability of the executive officer of a body corporate it has been drafted in accordance with the Statute Law Amendment (Directors’ Liability) Act 2015.  In this regard, it should be noted that the provision was included in the amendments made by the Statute Law Amendment (Directors’ Liability) Act 2015, however, as the offences within the Act still fell under Part II of the Criminal Code, section 39 was drafted in accordance with Part II and not Part IIAA.
In effect the only amendment made by this Bill is that the provision is now compatible with Part IIAA of the Criminal Code.
The provision will apply to offences committed under Part II, Division 1, Subdivision 1 or 2 or section 8(1) or (2) or 8A(1) of the Misuse of Drugs Act and any offences prescribed by regulation.
Clause 33		Section 40 amended
Clause 33 amends section 40 of the Misuse of Drugs Act to reflect the operation of Part IIAA of the Criminal Code.  Accordingly, section 40(1)(d) is omitted as section 32 of the Criminal Code only applies to offences which fall under the criminal responsibility provisions of Part II, not Part IIAA.  Section 40(1)(e) is also omitted to reflect the operation of Part IIAA, Division 6 of the Criminal Code and the fact that a number of provisions in the Misuse of Drugs Act expressly place the legal burden of proof on the defendant.
New section 40(3) is inserted which provides an averment in relation to the fact that a place was an indigenous community at the time an offence was committed.  This means that the prosecution does not need to prove that a location was an indigenous community (physical element) and the mere statement that the place was an indigenous community is evidence of that fact.
The clause also makes a number of other amendments to section 40 to reflect current drafting practice.
Clause 34		Section 41 amended
Clause 34 makes a number of amendments to section 41 to reflect current drafting practice.
Clause 35		Section 43 amended
Clause 35 makes a number of amendments to section 43 to reflect current drafting practice.
Clause 36		Part IV, Division 4 inserted
Clause 36 inserts new section 49, being the transitional provision for the Justice Legislation Amendment (Drug Offences) Act 2016.
The transitional provision will ensure that a person is not guilty of an offence, under the new or amended offence provisions, unless all conduct constituting the offence occurs after commencement of the Justice Legislation Amendment (Drug Offences) Act 2016.  If any of the conduct constituting the offence occurred prior to commencement, provisions under the Misuse of Drugs Act, which operated prior to commencement of the Justice Legislation Amendment (Drug Offences) Act 2016, will apply.
Clause 37		Schedule 2 amended
Clause 37 omits the reference in Schedule 2 of the Misuse of Drugs Act to ‘Alkoxyamphetamines and bromo-substituted alkoxyamphetamines, except where’, and replaces it with ‘Alkoxyamphetamines and substituted alkoxyamphetamines except if’.  This substitution will broaden the analogues that are covered by the reference, including all DOX type compounds, alkyl substitution (eg Dimethoxyethylamphetamine) and thiol substitution (eg Dimethoxymethylthioamphetamine).
The clause also omits the reference in Schedule 2 of the Misuse of Drugs Act to ‘Alkoxyphenethylamines and alkyl-substituted alkoxyphene-thylamines, except if’ and replaces it with ‘Alkoxyphenethylamines and substituted alkoxyphenylethylamines except if’.  This substitution will broaden the analogues that are covered by the reference, including all 2-CX type compounds (eg Dimethoxy-bromophenethylamine and Dimethoxy-iodophenethylamine).
Clause 37 also makes a number of amendments to Schedule 2 to reflect current drafting practice.
Clause 38		Act further amended
Clause 38 provides for the inclusion of Schedule 1 to the Justice Legislation Amendment (Drug Offences) Bill 2016. 
Schedule 1 replaces the term ‘member of the Police Force’ with ‘police officer’ to reflect current drafting practice and reliance on the definition of the term in section 17 of the Interpretation Act.
Schedule 1 also makes a number of amendments to the Misuse of Drugs Act which reflect current drafting practice and/or are consequential to other amendments in the Bill.
Part 3	Amendment of Misuse of Drugs Regulations
Clause 39	Regulations amended
This Part of the Bill will amend the Misuse of Drugs Regulations.
Clause 40	Regulations 2A and 2B inserted
Clause 40 inserts new regulations 2A and 2B into the Misuse of Drugs Regulations.
New regulation 2A replaces current regulation 6A (which is repealed by clause 41, see below) and prescribes ‘areas that were prescribed areas under section 4 of the Northern Territory National Emergency Response Act 2007 (Cth)’ as indigenous communities for the purpose of section 3(1) of the Misuse of Drugs Act.  This provision is identical to current regulation 6A but for the updated reference to section 3(1) of the Misuse of Drugs Act, which reflects the fact that section 4B is omitted by clause 5 of the Justice Legislation Amendment (Drug Offences) Bill 2016.
New regulation 2B is inserted to replace current regulation 6 and reflects current drafting practice.
Clause 41	Regulations 6 and 6A repealed
Clause 41 repeals regulations 6 and 6A as they are replaced by new regulations 2A and 2B (see clause 40 above).
Clause 42	Regulation 12 replaced
This clause amends the offence contained in regulation 12 of the Misuse of Drugs Regulations so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended regulation 12 provides for the offence of affixing a drug premises notice, without authorisation.  Strict liability applies to the offence under regulation 12.
Clause 43	Schedule 2 heading amended
Clause 43 amends the heading of Schedule 2 to reflect the repeal and replacement of regulation 6 with new regulation 2B (see clauses 40 and 41 above).
Part 4	Amendment of Sentencing Act
Clause 44	Act amended
This Part of the Bill will amend the Sentencing Act.
Clause 45	Section 55 replaced
Clause 45 amends section 55 of the Sentencing Act to require persons found guilty of a serious drug offence to serve a minimum of 70% of their sentence in prison, before being released on parole.
The amendment does not alter the current application of section 55 of the Sentencing Act to an offence under section 192(3) of the Criminal Code.  Rather, clause 45 extends the operation of section 55 to a number of drug offences.
In accordance with new section 55(3)(b) of the Sentencing Act, the provision will apply to commercial supply (section 5(1) of the Misuse of Drugs Act), commercial possession (section 7(1) of the Misuse of Drugs Act), commercial manufacture (section 6E(1) of the Misuse of Drugs Act), commercial cultivation (section 6(1) of the Misuse of Drugs Act), supplying a dangerous drug to a child (sections 5B(1) and 5C(1) of the Misuse of Drugs Act), manufacturing a dangerous drug in the presence of a child (section 6G(1)of the Misuse of Drugs Act), cultivation of a prohibited plant in the presence of a child (sections 6C(1) and 6D(1) of the Misuse of Drugs Act), procurement of a child to commit an offence (section 38 of the Misuse of Drugs Act) and offences that occur in public places (sections 7C(1) and 7D(1) of the Misuse of Drugs Act).
The provision will require the court to fix a non-parole period of not less than 70% of the period of imprisonment that the offender is to serve under their sentence, for offenders who are convicted of one of the above offences.
The provision only applies to an offender who is imprisoned for 12 months or longer, if the court does not suspend the term of imprisonment in whole or in part.  However, the provision does not apply if the Court considers that fixing a non-parole period is inappropriate under section 53(1) of the Sentencing Act.
Part 5 			Consequential Amendments
Clause 46		Other laws amended
Clause 46 provides for the inclusion of Schedule 2 to the Justice Legislation Amendment (Drug Offences) Bill 2016. 
Schedule 2 makes consequential amendments to legislation across the Northern Territory statute book.  The amendments largely reflect the reordering and renumbering of offences in Part II of the Misuse of Drugs Act and do not alter the policy of any of the references in other Acts.  For example, Schedule 1 of the Education Regulations currently references section 5(1) of the Misuse of Drugs Act, if a commercial quantity of a dangerous drug was supplied to a child.  This offence is now contained in section 5B(1) of the Misuse of Drugs Act and the reference in the Education Regulations is updated accordingly.
Part 6 			Expiry of Act
Clause 47.		Expiry of Act
This is a standard clause which provides that the Justice Legislation Amendment (Drug Offences) Act 2016 expires the day after it commences.  As this is an amending Act, there is no need to retain the Act on the statute book, once all the amendments to other Acts have been effected.