Misuse of Drugs Amendment Act 2016

Misuse of Drugs Amendment Act 2016

An Act to amend the Misuse of Drugs Act 2001

Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Misuse of Drugs Amendment Act 2016 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

3.   Principal Act

In this Act, the Misuse of Drugs Act 2001 is referred to as the Principal Act.

4.    Part 4, Division 4 inserted

After section 38 of the Principal Act , the following Division is inserted in Part 4:

Division 4 - Authorisation of possession and supply for certain purposes

38A.   Interpretation of Division

(1)  In this Division –

ancillary action, in relation to an authorisation, means an action that is –

(a) directly related to achieving an authorised purpose; and

(b) reasonably required to be carried out in order to enable that purpose to be achieved;

authorisation means an authorisation issued under section 38B(1) ;

authorised person means a person to whom an authorisation has been issued under section 38B(1) ;

authorisation purpose, in relation to an authorisation, means a purpose specified, in accordance with section 38B(4)(b) , in the authorisation;

correctional officer means a person, appointed under section 5 of the Corrections Act 1997 , whose duties under that Act include the training or use of dogs in the detection of controlled substances;

Director of Corrective Services means the Director of Corrective Services appointed under section 5 of the Corrections Act 1997 ;

employee means a person employed in any Agency of which the Commissioner of Police is the Head of Agency.

(2)  Without limiting the generality of the meaning of supply in section 3 , supply, in relation to a controlled substance –

(a) includes transport and delivery, or either, of the controlled substance; but

(b) does not include sale or use, or provision for use, of the controlled substance for any purpose other than an authorisation purpose specified in the authorisation in accordance with which the supply occurs.

38B.   Authorisation of possession and supply of controlled substances for certain purposes

(1)  The Commissioner of Police may authorise –

(a) a police officer; or

(b) an employee; or

(c) a correctional officer –

(an authorised person) to possess and supply controlled substances for the purposes, for which the authorisation may be issued, that are specified in the authorisation, and to carry out any ancillary actions.

(2)  The purposes for which an authorisation may be issued are –

(a) for the training, and use, by police officers or correctional officers, of dogs used, or to be used, in the detection of controlled substances; and

(b) for the transport and delivery of samples of controlled substances to –

(i) other police officers or correctional officers; or

(ii) other persons who are police officers for the purposes of an Act of another State, a Territory or the Commonwealth.

(3)  An authorisation must be in writing and signed by the Commissioner of Police.

(4)  An authorisation must specify the following:

(a) the name of the authorised person to whom the authorisation relates;

(b) the purposes for which the authorised person has been issued the authorisation;

(c) the conditions, if any, on which the authorisation has been issued;

(d) the period, of not more than one year, for which the authorisation remains in effect;

(e) the date on which the authorisation is signed by the Commissioner of Police.

(5)  The Commissioner of Police is only to issue to a person an authorisation that is to be in effect for a period that is as long as is reasonably necessary to enable the authorisation purposes to be fulfilled.

(6)  Despite any other Act or law of this jurisdiction, an authorised person who engages in conduct (whether in this jurisdiction or otherwise) that, but for this section, would constitute an offence is not criminally responsible in relation to the conduct if he or she engages in the conduct under and in accordance with an authorisation in relation to him or her that is in effect.

38C.   Variation or cancellation of authorisation

(1)  The Commissioner of Police –

(a) may vary or cancel an authorisation at any time; and

(b) must cancel an authorisation if he or she is satisfied that the authorisation is no longer necessary.

(2)  The Commissioner of Police must give to an authorised person written notice of the variation or cancellation of the authorisation.

(3)  A notice under subsection (2) must specify why the authorisation to which the notice relates is varied or cancelled.

(4)  A notice under subsection (2) of the variation or cancellation of an authorisation to which the notice relates takes effect –

(a) on the day on which the notice is given to the person; or

(b) if the notice specifies that it takes effect on a later day – on the day so specified.

38D.   Powers under Division non-delegable

Despite this or any other Act, the Commissioner of Police may not delegate to another person, or authorise another person to exercise, a power of the Commissioner of Police under section 38B or 38C .

38E.   Authorisation does not limit other powers

Nothing in this Division is to be taken to require a police officer to be authorised for purposes other than an authorisation purpose.

38F.   Authorised person to provide report about authorisation

(1)  An authorised person must, as soon as practicable after –

(a) the end of each financial year in which his or her authorisation was in effect; or

(b) his or her authorisation ceases to be in effect –

provide to the Commissioner of Police a written report in relation to the authorisation.

(2)  A report, by an authorised person under subsection (1) , in relation to an authorisation is to contain the following details:

(a) the quantity, and a description, of each controlled substance that was possessed by the authorised person, or supplied by the authorised person to another person, under the authorisation;

(b) any ancillary actions taken by the authorised person;

(c) the name of any other person to whom a controlled substance was supplied by the authorised person under the authorisation and the address at which the controlled substance was so supplied;

(d) if the controlled substance was supplied by the authorised person to another person for delivery to a third person, the name and address of the third person to whom the controlled substance was to be delivered;

(e) each day in which the authorised person was in possession of the controlled substance.

38G.   Commissioner of Police to keep certain records

The Commissioner of Police must cause to be kept records of –

(a) all authorisations; and

(b) all notices under section 38C ; and

(c) all reports provided to him or her under section 38F(1) .

38H.   Commissioner of Police to report to Ombudsman

(1)  The Commissioner of Police is to provide to the Ombudsman, as soon as practicable after the end of each financial year, a report (an operational report) containing –

(a) the number of authorisations issued during the financial year; and

(b) the purposes for which the authorisations were issued; and

(c) a summary of the details specified in each report received by the Commissioner of Police under section 38F(1) .

(2)  The summary included, in the report under subsection (1) , in accordance with subsection (1)(c) is not required to contain any details that may, in the opinion of the Commissioner of Police, compromise the lawful carrying out of the duties of a police officer.

38I.   Reports by Ombudsman

(1)  The Ombudsman must, as soon as practicable after receiving an operational report under section 38H(1) , prepare a report setting out –

(a) a summary of the matters provided in the operational report; and

(b) the Ombudsman's opinion as to the comprehensiveness and adequacy of the records of the Commissioner of Police kept under section 38G ; and

(c) the Ombudsman's opinion as to whether the authorisations to which the operational report relates have been effective and appropriate; and

(d) the Ombudsman's comments and suggestions as to how the issue, supervision and implementation of authorisations may be improved.

(2)  The Ombudsman must include his or her report under subsection (1) in the annual report prepared in accordance with section 30 of the Ombudsman Act 1978 .

5.   Expiry of Act

This Act expires on the three hundred and sixty fifth day from the day on which it commences.

[Second reading presentation speech made in:

House of Assembly on 10 MARCH 2016

Legislative Council on 6 APRIL 2016]