Document ID: chunk:federal_register_of_legislation:C2005A00129:clause:1_1:p21
Version: federal_register_of_legislation:C2005A00129
Segment Type: clause
Provision Reference: sch 1 cl 1 (pt 21/42)
Character Range: 57995–60681

in relation to the matter in subsection (4) (see section 13.4).

Division 308—Possession offences

308.1  Possessing controlled drugs

 (1) A person commits an offence if:
 (a) the person possesses a substance; and
 (b) the substance is a controlled drug.

Penalty: Imprisonment for 2 years or 400 penalty units, or both.

 (2) The fault element for paragraph (1)(b) is recklessness.

 (3) If:
 (a) a person is charged with, or convicted of, an offence against subsection (1); and
 (b) the offence is alleged to have been, or was, committed in a State or Territory;
the person may be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory that involved the possession or use of a controlled drug (however described).

Note: Subsection (3) allows for drug users to be diverted from the criminal justice system to receive the same education, treatment and support that is available in relation to drug offences under State and Territory laws.

 (4) However, a person punished under subsection (3) must not be:
 (a) sentenced to a period of imprisonment that exceeds the period set out in subsection (1); or
 (b) fined an amount that exceeds the amount set out in subsection (1).

 (5) Subsection (3) does not limit:
 (a) Part 1B of the Crimes Act 1914; or
 (b) section 68 or 79 of the Judiciary Act 1903; or
 (c) any other law that provides for a law of a State or Territory to apply in relation to the exercise of federal jurisdiction.

308.2  Possessing controlled precursors

 (1) A person commits an offence if:
 (a) the person possesses a substance; and
 (b) the person intends to use any of the substance to manufacture a controlled drug; and
 (c) the substance is a controlled precursor.

Penalty: Imprisonment for 2 years or 400 penalty units, or both.

 (2) The fault element for paragraph (1)(c) is recklessness.

 (3) For the purposes of proving an offence against subsection (1), if:
 (a) a person possessed a substance; and
 (b) a law of the Commonwealth or of a State or Territory required the possession to be authorised (however described); and
 (c) the possession was not so authorised;
the person is taken to have possessed the substance with the intention of using some or all of the substance to manufacture a controlled drug.

 (4) Subsection (3) does not apply if the person proves that he or she did not have that intention.

Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).

308.3  Possessing plant material, equipment or instructions for commercial cultivation of controlled plants

  A person commits an offence if:
 (a) the person possesses a