Drug possession is a serious criminal offence under Australian law. While the legal framework varies between states and territories, it generally follows a consistent approach based on national drug schedules and classifications. This article explains how drug possession is handled in Australia, the penalties that may apply, available legal defences, and what to do if you are charged.
Understanding Drug Possession Under Australian Law
Drug possession refers to having illegal drugs in one’s custody or control. This includes drugs found in a person’s clothing, bag, home, or vehicle. In many jurisdictions, possession operates as a strict liability offence, meaning a person may be charged even if they were unaware the substance was in their possession.
The Criminal Code Act 1995 (Cth) and state-based Drugs, Poisons and Controlled Substances legislation regulate drug offences across Australia. While classifications are nationally aligned, penalties differ between jurisdictions.
Drug Types and Classifications
The Australian Government’s Poisons Standard (SUSMP) classifies substances according to risk and medical use. Categories relevant to possession include:
- Schedule 8 – Controlled Drugs: Prescription medications such as morphine and oxycodone, subject to strict controls.
- Schedule 9 – Prohibited Substances: Drugs such as MDMA, heroin, and LSD, which have no approved medical use.
- Schedule 4 – Prescription-Only Medicines: Medications that may be unlawful to possess without a valid prescription, including benzodiazepines and steroids.
Illicit drugs such as cannabis, methamphetamine, and cocaine are classified under different schedules depending on their harm profile.
Penalties for Drug Possession in Australia
Penalties depend on the jurisdiction, drug type, quantity, and whether the offence is a first or repeat matter.
New South Wales
- Small quantities: Fines up to $2,200 and/or imprisonment for up to 2 years.
- Larger amounts: May escalate to trafficking offences with penalties of up to 15 years.
- Diversion options: Cannabis Cautioning Scheme and Drug Diversion Program for eligible offenders.
Victoria
- Personal possession: Fines up to $4,500 and/or imprisonment for up to 1 year.
- Trafficking quantities: Maximum penalties of up to 25 years.
- Diversion: Drug Court rehabilitation pathways may apply.
Queensland
- Minor possession: Fines up to $5,000 or 2 years imprisonment.
- Serious offences: Up to 25 years imprisonment.
- Police diversion: Available for first-time offenders.
Western Australia
- Simple possession: Up to $2,000 fine and/or 2 years imprisonment.
- Intent to supply: Penalties of up to 25 years.
- Cannabis intervention: Available in limited circumstances.
Tasmania, ACT, and Northern Territory
These jurisdictions follow similar models, with minor possession attracting fines or cautions and larger quantities leading to trafficking charges.
Legal Defences to Drug Possession Charges
Several defences may apply depending on the circumstances:
Lack of Knowledge
If the accused was genuinely unaware of the drug’s presence, this may be raised, although it can be difficult to prove.
Duress
Where a person was forced to carry drugs under threat, duress may apply if there was no reasonable alternative.
Unlawful Search
Evidence obtained through unlawful searches may be excluded if the police acted without proper authority.
Lawful Prescription
Possession may be lawful where a valid prescription exists.
Chain of Custody Issues
Errors in handling or identifying seized substances may undermine the prosecution case.
What Happens If You Are Caught With Drugs?
Police Action
- Cautions or fines may apply for small quantities.
- Larger amounts usually result in arrest and charges.
Court Process
- The accused must attend court and enter a plea.
- Early guilty pleas may reduce penalties.
Sentencing Outcomes
- Fines, community orders, rehabilitation, or imprisonment.
- Some offenders may access treatment-based alternatives.
Drug Diversion Programs
- NSW Cannabis Cautioning Scheme
- Queensland Police Drug Diversion
- Victorian Drug Court
Helpful Government Resources
Drug possession laws in Australia are strict, but diversion options may be available for first-time or low-level offences. Early legal advice can significantly affect outcomes.
If you are facing drug possession charges, contact New South Lawyers for confidential advice and representation tailored to your circumstances.