Drug and Substance Checking Legislation Act 2021

1: Title
This Act is the Drug and Substance Checking Legislation Act 2021.
2: Commencement
This Act comes into force on the later of the following:
a: the day after the date on which this Act receives the Royal assent:
b: immediately after subpart 2 subpart 2
1: Amendments to Misuse of Drugs Act 1975
3: Amendments to Misuse of Drugs Act 1975
This Part amends the Misuse of Drugs Act 1975 2021-12-07 Misuse of Drugs Act 1975
4: Section 2 amended (Interpretation)
In section 2(1) drug and substance checking service provider service provider clause 4 of Schedule 6 drug information body drug or substance entity
a: a body corporate:
b: a corporation sole:
c: in the case of a trust that has—
i: only 1 trustee, the trustee acting in their capacity as trustee:
ii: more than 1 trustee, the trustees acting jointly in their capacity as trustees:
d: an unincorporated body (including a partnership) psychoactive substance responsible person
a: a director, partner, or trustee of the entity; or
b: if the entity does not have directors, partners, or trustees, a person who acts in relation to the entity in the same or a similar fashion as a director, partner, or trustee would were the entity a company, partnership, or trust worker
a: an employee; or
b: a contractor or subcontractor; or
c: a volunteer (being a person who carries out work on a voluntary basis, whether or not the person receives out-of-pocket expenses)
5: New section 2AA inserted (Transitional, savings, and related provisions)
After section 2A
2AA: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA
6: Section 6 amended (Dealing with controlled drugs)
In section 6(1) section 8 section 8 or 35DD
7: Section 7 amended (Possession and use of controlled drugs)
In section 7(1) section 8 section 8 or 35DD
8: Section 12 amended (Use of premises or vehicle, etc)
After section 12(1)
1A: It is not an offence against subsection (1) for a person to permit any premises or mode of conveyance to be used by a drug and substance checking service provider for the purpose of performing the functions specified in section 35DB
9: Section 14 amended (Licences)
After section 14(6)
7: This section does not apply in relation to licences for drug and substance checking service providers.
10: New sections 35DA to 35DI and cross-headings inserted
After section 35D Drug and substance checking
35DA: Licensing of drug and substance checking service providers
The Director-General of Health may license drug and substance checking service providers under Schedule 6
35DB: Functions of service provider
1: The functions of a service provider are to do 1 or more of the following:
a: provide accurate and appropriate information and harm reduction advice to help individuals make informed decisions about drug and substance use:
b: test any drug or substance (which may be a controlled drug or psychoactive substance) that an individual presents for checking to ascertain the composition and likely identity of the drug or substance:
c: advise the individual who presented a drug or substance for checking of the outcome of the testing:
d: return a drug or substance to the individual who presented it for checking:
e: dispose of any sample of a drug or substance used in testing:
f: dispose of, or arrange for the disposal of, any drug or substance surrendered by any individual for disposal:
g: arrange for a sample of a drug or substance (including one that has been surrendered for disposal) to be tested by an approved laboratory:
h: train, or arrange for the training of, the service provider’s workers to perform the functions specified in paragraphs (a) to (g)
2: A service provider must perform the functions referred to in subsection (1)
35DC: Possession or supply of controlled drug for purpose of performing functions
1: A service provider’s licence entitles them to do 1 or more of the following for the purpose of performing the provider’s functions:
a: possess a controlled drug for as long as is reasonably necessary to perform the provider’s functions:
b: return a controlled drug to the individual who submitted it for checking:
c: send a controlled drug to an approved laboratory for testing.
2: Subsection (1)
3: In this section and section 35DD controlled drug
35DD: Supplying or surrendering controlled drug to service provider
An individual may do 1 or both of the following:
a: supply a controlled drug to a service provider for the purpose of checking:
b: surrender a controlled drug to a service provider for the purpose of disposal. Drug and substance checking: general licence conditions
35DDA: General licence conditions set out in sections 35DDB to 35DDK
Sections 35DDB to 35DDK
35DDB: Service provider must display copy of licence
A service provider must clearly display a copy of their licence when, and at the site where, the service provider is performing any of the functions specified in section 35DB(1)﻿(a) to (d)
35DDC: Service provider must not perform functions in residential premises
A service provider must not perform any of their functions in a residential premises (as defined in section 2(1) of the Residential Tenancies Act 1986
35DDD: Service provider must not charge individuals for drug checking services
A service provider must not charge any fee to an individual for testing or disposing of a drug or substance for that individual.
35DDE: Service provider must not require or collect, etc, certain information
1: This section applies in relation to an individual who does 1 or both of the following:
a: presents a drug or substance to a service provider for checking:
b: surrenders a drug or substance to a service provider for disposal.
2: The service provider must not—
a: require the individual to disclose demographic information (such as their age, sex, ethnicity, or cultural background) as a condition of providing service to the individual; or
b: collect, maintain, use, or disclose any personal information about the individual.
3: However, subsection (2)﻿(b)
4: In this section,— collect section 7(1) of the Privacy Act 2020 other health services section 2(1) of the Health and Disability Commissioner Act 1994 section 35DB personal information section 7(1) of the Privacy Act 2020
35DDF: Service provider must provide accurate and appropriate harm reduction advice with test results
1: A service provider must ensure that, when an individual who presents a drug or substance for checking is advised of the outcome of the testing, the individual is given accurate and appropriate advice in accordance with this section.
2: The advice must be about the following harms and how they may be reduced or avoided:
a: if the test indicates the likely identity of the drug or substance, the harms associated with that drug or substance:
b: if the test does not indicate the likely identity of the drug or substance but the service provider considers that, in the circumstances, they are able to form a view on its likely identity,—
i: the harms associated with that drug or substance; and
ii: the harms associated with taking a drug or substance of an unknown identity:
c: in any other case where the test does not indicate the likely identity of the drug or substance, the harms associated with taking a drug or substance of an unknown identity.
3: The service provider does not breach subsection (2)
4: See clause 6 of Schedule 6
35DDG: Service provider must store controlled drugs or psychoactive substances securely
A service provider must securely store all controlled drugs or psychoactive substances in their possession.
35DDH: Service provider must report loss or removal of controlled drug or psychoactive substance
1: This section applies if a controlled drug or psychoactive substance in a service provider’s possession is lost or removed from their possession without the service provider’s authority.
2: After the service provider becomes aware of the loss or removal, they must report the loss or removal—
a: immediately to a member of the Police; and
b: as soon as is reasonably practicable to the Director-General of Health (but, in any case, before the end of the following month).
35DDI: Service provider must report data
A service provider must report all test results that they provide to individuals, and the number of individuals advised of test results, to—
a: the Director-General of Health; and
b: a drug information body specified in regulations made under this Act.
35DDJ: Service provider must keep records
1: A service provider must keep a record of—
a: the number of tests carried out by the service provider; and
b: the number of individuals advised of test results by the service provider; and
c: for each drug or substance that the service provider tests and returns to the individual who submitted it for checking,—
i: the purported identity (if known) of the drug or substance; and
ii: the test result; and
d: for each drug or substance that the service provider has in their possession for the purpose of disposal or arranging testing by an approved laboratory, the information specified in subsection (2)
e: for each drug or substance that the service provider has in their possession for the purpose of training, the information specified in subsection (3)
2: The information required by subsection (1)﻿(d)
a: the purported identity (if known) of the drug or substance; and
b: if the drug or substance has been tested by the service provider, the test result; and
c: the weight of the drug or substance; and
d: whichever of the following applies:
i: if the drug or substance is disposed of by the service provider, how and when it was disposed of:
ii: if the drug or substance is provided to another person for disposal, when, how, and to whom it was provided:
iii: if the drug or substance is provided to an approved laboratory for testing, when, how, and to which laboratory it was provided.
3: The information required by subsection (1)﻿(e)
a: the identity of the drug or substance as indicated by testing performed by the service provider or an approved laboratory; and
b: the weight of the drug or substance; and
c: if the drug or substance is destroyed while being used for training, how and when that occurred.
4: The service provider must retain each record for the period prescribed by regulations made under this Act.
5: In this section, purported identity
35DDK: Service provider must facilitate monitoring
1: A service provider must,—
a: if requested in writing by the Director-General of Health, provide the Director-General with any information that the Director-General reasonably requires to monitor the service provider’s compliance with this Act, its regulations, or their licence conditions; and
b: allow an authorised person to access any site where the service provider is performing any of the functions specified in section 35DB
2: An authorised person who accesses a site under subsection (1)﻿(b)
a: must do so only for the purpose of monitoring the service provider’s compliance with this Act, its regulations, or their licence conditions; and
b: must, if requested by the service provider, show the service provider written evidence of the person’s authorisation from the Director-General of Health; and
c: must make all reasonable efforts to avoid disrupting the service provider in their performance of any of the functions specified in section 35DB
d: must not be present in a part of the site where an individual is presenting a drug or substance for checking or being advised of the results of testing of the drug or substance (unless the individual gives their express permission for the authorised person to be present); and
e: must not make a visual or audio recording of—
i: the site; or
ii: any individual who presents a drug or substance to the service provider for checking or is advised of the results of testing of the drug or substance; or
iii: any individual who surrenders a drug or substance to the service provider for disposal.
3: In this section, authorised person section 35DB Drug and substance checking: offences and other matters
35DE: Offence relating to breach of conditions of licence
1: A service provider must not breach any conditions of their licence.
2: A service provider commits an offence and is liable on conviction to a fine not exceeding $5,000 if the service provider, without reasonable excuse, contravenes subsection (1)
3: However, this section does not apply to a contravention of the condition set out in section 35DDF
35DF: Offence to provide checking services, etc, without being licensed
1: A person must not carry out any of the functions specified in section 35DB(1)﻿(b) to (e) section 35DA
2: A person commits an offence and is liable on conviction to a fine not exceeding $20,000 if the person, without reasonable excuse, contravenes subsection (1)
35DG: Liability of responsible persons, etc, if service provider is entity
1: This section applies (instead of section 17
2: Every responsible person and person concerned in the management of the entity commits the same offence if it is proved—
a: that the act that constituted the offence took place with the authority, permission, or consent of the responsible person or person concerned in the management of the entity; or
b: that the responsible person or person concerned in the management of the entity knew, or could reasonably be expected to have known, that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
3: A responsible person or person concerned in the management of the entity may be convicted of the offence even if the entity is not convicted of the offence.
4: This section applies to a person concerned in the management of an entity despite section 35DH
35DH: Protections from liabilities of service provider
1: A worker of a service provider is not liable for anything they do or fail to do in the course of the performance or intended performance of the service provider’s functions, unless it is shown that they acted in bad faith or without reasonable care.
2: A worker of a service provider is not liable for any liability of the service provider.
35DI: Use of service and test result not admissible in civil or criminal proceedings
The following is not admissible as evidence in civil or criminal proceedings against an individual who presents a drug or substance for checking by a service provider:
a: evidence that the individual presented a drug or substance to the service provider or in any other way used services of the service provider that relate to the functions specified in section 35DB
b: the result of a test carried out by the service provider in relation to the drug or substance.
11: New section 37B inserted (Regulations relating to drug and substance checking service providers)
After section 37A
37B: Regulations relating to drug and substance checking service providers
1: Without limiting section 37, the Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
a: prescribing any particulars, information, documents, or other material that must be included in or with an application for a licence to be a drug and substance checking service provider (a licence
b: prescribing the form of licences:
c: prescribing conditions of licences:
d: providing for the renewal of licences:
e: specifying a drug information body for the purposes of section 35DDI
f: prescribing the period for which service providers must retain the records required by section 35DDJ
2: Regulations made under subsection (1)﻿(c)
a: how the service provider must comply with any of the conditions imposed by sections 35DDA to 35DDK
b: other requirements that relate to any of those conditions.
3: Regulations made under subsection (1)﻿(d)
a: provide for a licence to continue in effect (despite clause 8 of Schedule 6
b: prescribe any particulars, information, documents, or other material that must be included in or with an application to renew a licence:
c: provide for the Director-General of Health to—
i: require particulars, information, documents, or other material to be included in or with an application to renew a licence:
ii: refuse to process an application if a required particular, piece of information, document, or piece of other material is not included in or with an application:
iii: require further particulars, information, documents, or other material to be provided before deciding whether to renew a licence:
d: prescribe criteria for the renewal of licences:
e: provide for the review of decisions relating to applications for the renewal of licences.
4: Regulations made under this section are secondary legislation ( see The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
12: New Schedule 1AA inserted
Insert the Schedule 1AA set out in Schedule 1 Misuse of Drugs Act 1975
13: New Schedule 6 inserted
After Schedule 5 Schedule 2
2: Amendments to other enactments
1: Amendments to Acts
Amendments to Psychoactive Substances Act 2013
14: Amendments to Psychoactive Substances Act 2013
Sections 15 to 17 Psychoactive Substances Act 2013 2021-12-07 Psychoactive Substances Act 2013
15: Section 8 amended (Interpretation)
In section 8 approved laboratory section 87 drug and substance checking service provider section 2(1) of the Misuse of Drugs Act 1975
16: Section 70 amended (Offences relating to psychoactive substance that is not approved product)
After section 70(2)
2A: Subsection (1) also does not apply to—
a: a person who gives a psychoactive substance that is not an approved product to a drug and substance checking service provider for the purpose of checking or for disposal:
b: a drug and substance checking service provider who returns a psychoactive substance that is not an approved product to the person who submitted it for checking:
c: a drug and substance checking service provider who supplies a psychoactive substance that is not an approved product to an approved laboratory for testing.
17: Section 71 amended (Offence relating to personal possession of psychoactive substance that is not approved product)
After section 71(2)
2A: Subsection (1) also does not apply to a drug and substance checking service provider if the service provider has possession of the psychoactive substance in the course of performing the service provider’s functions.
2B: Subsection (2A) Amendment to Medicines Act 1981
18: Amendment to Medicines Act 1981
Section 19 Medicines Act 1981 2021-12-07 Medicines Act 1981
19: Section 109 amended (Relationship with Misuse of Drugs Act 1975)
After section 109(3)
3A: A drug and substance checking service provider under the Misuse of Drugs Act 1975 does not commit an offence against this Act or its regulations if the service provider breaches this Act or the regulations in the course of performing the service provider’s functions.
3B: Subsection (3A)
2: Amendment to secondary legislation
Amendment to Misuse of Drugs Regulations 1977
20: Amendment to Misuse of Drugs Regulations 1977
Section 21 Misuse of Drugs Regulations 1977 2021-12-07 Misuse of Drugs Regulations 1977
21: Regulation 28 amended (Custody of controlled drugs)
1: After regulation 28(4)﻿(e)
f: a controlled drug that is in the possession of a drug and substance checking service provider if the service provider has possession of the controlled drug in the course of performing the service provider’s functions.
2: After regulation 28(4)
4AAA: Subclause (4)﻿(f)