It is illegal to possess any drug listed on Schedule 1 or Schedule 2 of the Drugs Misuse Regulation.
A person can be in possession of drugs, regardless of whether or not they own them. At its core, possession is really about knowledge and control of the drug in question - the prosecution must prove that a person knew of the existence of the substance and it is within their physical control.
The "occupier provisions"
Section 129(1)(c) in the Drugs Misuse Act has the effect of deeming all people who occupy a house to be in possession of any drug found in the house unless they can show that they didn't know and had no reason to suspect that the drugs were there.
The onus of proof is effectively reversed - the prosecution doesn't need to prove that the accused person knew the drugs were there. Rather, the accused person has to prove that they didn't know and couldn't have suspected that the drugs were in the house. This is a difficult onus to discharge.
This provision also applies if drugs are found in a car - all of the people in the car at the time can be charged with possessing the drugs.
Drug diversion for minor drug charges
There are two kinds of drug diversion available in Queensland.
The first is police drug diversion. If police arrest someone in possession of a small quantity of cannabis (less than 50 grams) or an implement that has been used to smoke cannabis the police officer MUST offer the offender an opportunity to attend a drug diversion assessment program instead of charging them with a criminal offence in certain circumstances. This is obviously a much better outcome than going to court as it means there is no criminal conviction for the offence whatsoever. The following conditions have to be met for the drug diversion to be offered -
- The person must not have also been arrested for another indictable offence associated with the minor drug offence - for example, burglary of a home to obtain the money to buy the drugs.
- The person must not have been offered drug diversion before.
- The person must admit to possessing the drugs or smoking implement in an electronically recorded interview.
- The person must not have any criminal history for violence.
- The person must not have been sentenced to a term of imprisonment before for drug trafficking, supplying drugs or producing drugs.
Remember, if the above conditions are met the police MUST offer drug diversion, it's not optional!
The second type is court ordered drug diversion. This type of drug diversion is available to people who commit minor drug crimes and have never had any kind of drug diversion before, or have had police or court drug diversion once before. Court ordered drug diversion is available for a much wider range of minor drug offences, including possessing small quantities of schedule 1 drugs like cocaine, heroin, ecstasy and speed.
If a person is eligible for court ordered drug diversion and the Magistrate thinks it is appropriate, they are sentenced to a good behaviour bond that includes a condition that they attend a Drug Assessment and Education Session. No conviction is recorded.
You can read more about court ordered drug diversion here.