Drug offences

Contributed by ClementNg, as amended by EmmaHenke and current to November 2025

In practice, the MDA covers all but the most unusual drug charges in the NT. Generally, the MDA provides harsher penalties than those found under equivalent legislation elsewhere in Australia.

Legal definitions in the MDA

In the MDA misuse refers to the unlawful supply, cultivation, manufacture, possession and administration of a wide range of dangerous drugs, which constitute criminal offences. Drugs is defined to include prescription drugs such as morphine and testosterone. The full list of those drugs covered by the MDA is included in two lists, known as schedules, at the end of the Act. There is an exemption in the act for circumstances where a person is prescribed a drug by a medical practitioner.

Factors affecting penalties

Type of drug

As stated above, the MDA contains two schedules that set out the drugs that are illegal in the NT, except where those substances are lawfully prescribed. Essentially, the CA refers to the same substances.

Schedule 1 of the MDA lists thirty-two prohibited drugs and that are considered to be the most harmful. The list includes:

• cocaine
• fentanyl
• heroin
• ketamine
• lysergic acid (commonly known as 'LSD' or 'acid')
• methamphetamine (commonly known as 'ice' or 'speed')
• methylenedioxymethamphetamine (commonly known as ‘MDMA’)

Schedule 2 lists the remaining drugs that are considered illegal and/or dangerous. These include cannabis, codeine, morphine, opium, testosterone and many more.

Quantity of drug

Each schedule also details the minimum quantities of each drug that comprise both traffickable and commercial amounts. The quantities vary according to the particular substance involved. Some examples are:

• for cannabis plant material (that is, any part of the cannabis plant, including the flowering or fruiting tops, leaves, stalks and seeds), the traffickable quantity is 50 grams and the commercial quantity is 500 grams
• for cannabis resin (often referred to as 'hashish'), the traffickable quantity is 10 grams and the commercial quantity is 100 grams
• for methamphetamine, the traffickable quantity is 2 grams and the commercial quantity is 40 grams
• for morphine, the traffickable quantity is 2 grams and the commercial quantity is 100 grams
• for heroin and cocaine, the traffickable quantity is 2 grams and the commercial quantity is 40 grams.

Both traffickable and commercial amounts have a direct impact on the maximum sentences that apply to offences under the MDA.

The Misuse of Drugs Amendment Act 2002 came into force on 1 August 2002. One of the amendments affected how the quantity of a drug in a mixture of substances is determined, for the purpose of deciding whether it is a traffickable or commercial quantity. Prior to the amendments the amount of drug was determined by analysing the substance to find out how much of it was the pure dangerous drug. For example, a bag of speed would be analysed to determine how much speed and how much mixture it contained. A person would only be charged with the amount of dangerous drug and not the mixture. If the bag of speed only contained one gram of speed and five grams of sugar mixture, the amount of drug would be determined as one gram. Under the new law, the amount of dangerous drug is determined as if all of the preparation or mixture were comprised of the dangerous drug. Under the new amendments, the bag of speed referred to in the previous example would be considered to be six grams of a dangerous drug. If the bag in fact contained more than one drug the legislation determines that [MDA s 3(3)]:

• if all dangerous drugs found in the preparation or mixture are Schedule 1 drugs, the traffickable or commercial quantity is to be determined as if all the preparation or mixture were comprised of the drug that has the least quantity specified in the schedule. For example, both heroin and lysergic acid are Schedule 1 drugs. A traffickable amount of heroin as set out in the Schedule is two grams, whereas a traffickable amount of lysergic acid is 0.002 grams. If a mixture of three grams of heroin and lysergic acid were found then the amount of drug would be determined as three grams of lysergic acid [MDA s 3B].
• if all dangerous drugs found in the preparation or mixture are Schedule 2 drugs, the traffickable or commercial quantity is to be determined as if all the preparation or mixture were comprised of the drug that has the least quantity specified in the schedule [MDA s 3B].
• if one or more dangerous drugs are found in the preparation and one is from Schedule 1 and one from Schedule 2, the traffickable or commercial quantity is to be determined as if all the preparation or mixture were comprised of the Schedule 1 dangerous drug. [MDA s 3B].

Presumptions made under the law

The MDA includes presumptions that deem an intention on the part of the offender in relation to the substance involved. Instead of the prosecution having to prove that intent, the onus falls on the offender to disprove it. For example, the MDA [s 37(6)(a)] presumes that where a traffickable quantity of a particular drug exists, the offender intended to 'supply' the dangerous drug. The MDA also presumes that where a commercial quantity of a particular drug exists, the offender intended to 'supply for commercial gain' [s 37(6)(b)].

It is important to note that the presumptions apply even when a specific charge relating to 'supplying a dangerous drug' has not been laid. In other words if, for example, a person is charged with possession of a traffickable quantity of cannabis, the presumptions still have to be overcome in the court proceedings. In practice, it may mean that the defendant has to give evidence on oath in court to rebut the presumption.

Either presumption, if found to be the case, has an effect on the sentence given to the offender.

Offences

There are five general types of drug offences under the MDA:

• supplying
• cultivation
• manufacture and production
• possession
• administering (to self or to another person).

Supply

It is an offence to supply or take part in the supply of a dangerous drug to another person, whether or not that person is in the NT or some other place [MDA s 5E].

The word 'supply' has a very broad meaning. It is defined in the MDA to mean to give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration [MDA s 3(1)].

The definition also includes offering to do one of these acts, doing or offering to do an act that is preparatory to or in furtherance of, one of these acts, and barter and exchange [MDA s 3(1)]. For example, to assist in weighing the drugs before they are packaged can fall within the extended definition of supply.

Persons can also be involved in supply if they participate in a step in the process of supply, or if they provide or arrange finance or provide the premises in which such a step is taken [MDA s 3(6)]. For example, a landowner who allows drugs to be sold from their property may be considered as being involved in the supply of those drugs.

The maximum penalties for supply are severe and depend on whether the substance is a Schedule 1 or Schedule 2 drug, and whether the amount is a commercial or non-commercial quantity. Examples of maximum penalties under this section are:

• life imprisonment, where the supply of a Schedule 1 drug is by an adult to a child, and this applies to both a commercial quantity and a non-commercial quantity [MDA ss 5B(1), 5C(1)].
• supply of a non-commercial quantity of a Schedule 2 drug by an adult to a child carries a maximum penalty of 14 years [MDA s 5C(1)] and, where a commercial quantity is involved, 25 years [MDA s 5B(1)].

It should be noted that the law imposes harsher penalties if police can prove that the drugs are supplied in an indigenous community [MDA s 5D]. For example, if an offender is found guilty of supplying any amount below 500 grams of cannabis in an indigenous community, the maximum penalty is nine years as opposed to five years [MDA ss 5A(1), 5D(1)]. The MDA defines ‘indigenous community’ as an area prescribed by regulation [MDA s 3(1)]. Regulation 2A of the Misuse of Drugs Regulations 1990 (NT) (‘MDR’) directs us to the definition of ‘prescribed area’ in s 4 of the Northern Territory National Emergency Response Act 2007 (Cth) immediately before its repeal.

See Table 1 below for details about specific drugs.

Note there is no reference to a traffickable quantity in this offence.

Table 1: Penalties for supply

Supplying schedule 1 drug
Supplier/receiver	Quantity	Maximum penalty
Adult to adult	Commercial quantity	25 years imprisonment
Adult to adult	Less the commercial quantity	14 years imprisonment
Adult to child	Commercial quantity	Life imprisonment
Adult to child	Less than commercial quantity	Life imprisonment
Supplying schedule 2 drug
Supplier/receiver	Quantity	Maximum penalty
Adult to adult	Commercial quantity	14 years imprisonment
Adult to adult	Less the commercial quantity	5 years imprisonment
Adult to child	Commercial quantity	25 years imprisonment
Adult to child	Less than commercial quantity	14 years imprisonment
In Indigenous community	Less than commercial quantity	9 years imprisonment

Cultivation

A charge can be laid against offenders if they have been involved with cultivating a prohibited plant.

Cultivation is defined to include planting, transplanting, nurturing, tending, growing, guarding, concealing and harvesting [MDA s 3(1)].

A person is also considered to have cultivated if they do any of the following [MDA s 3(6)]:

• participate in a step in the process of cultivation
• provide or arrange finance for a step in the process
• provide the premises for any step of the cultivation process as owner, lessee, occupier or manager. Table 2 below outlines the penalties for cannabis cultivation.

Prohibited plant is defined to include both a plant listed in schedule 1 or schedule 2 or a plant not specified in the schedules if a part of the plant or an extract of the plant is listed in the schedules [MDA s 3(1)]. In the NT the most common illegal substance cultivated is cannabis.

Table 2: Penalties for cultivation

Number of plants	Maximum penalty
1-5 plants	200 penalty units or 2 years imprisonment
5-19 plants	7 years imprisonment
5-19 plants in presence of child	10 years imprisonment
20 plants or more	25 years imprisonment

On the spot fines

If a person is cultivating two or less cannabis plants, the a police officer may issue the person an infringement notice for the amount equal to the value of two penalty units [ss 20, 20A].

This does not mean that cannabis has been legalised or decriminalised. It just means that offenders have an option to avoid going to court. An infringement notice can only be issued to a person over the age of 18 years.

Administrative costs may also have to be paid if the fine is not paid within 28 days from the date the notice is issued. If the penalty is paid, no conviction is recorded and no further action is taken. If the fine is not paid by the due date, the fines may increase and further actions may be taken against the person who was issued with the notice.

If person challenges the infringement notice, the matter goes to court, and if the court finds that the offence was committed, a conviction may be recorded against the offender (see Nature of infringement notices and disputing them in court).

Manufacture and production

The term manufacture is defined as producing (other than by cultivating a plant), extracting, refining or transforming a substance or thing [MDA s 3].

A person who intentionally or recklessly manufactures or takes part in the manufacture of a dangerous drug is guilty of a crime [MDA ss 6E - 6G].

Persons can also be prosecuted for manufacture or production if they become involved in any of the three activities mentioned above.

The penalties imposed for manufacture or production depend on the type of drug involved and the quantity produced. See Table 3 below.

Under amendments to the MDA passed in 2002 it is also an offence to have possession of a precursor if the intention is for the precursor to be used, either by the person in possession of another person, in the manufacturer of a dangerous drug[ s 8A].

Schedule 2 of the MDR contains a list of precursors, which includes items such as ephedrine and other substances used in the manufacture of drugs. It is also an offence to possess instructions for manufacture of a dangerous drug or precursor [MDA s 8B]. An example of a document might be a leaflet on how to make speed. The word 'document' includes information stored electronically, that is, on a computer [Interpretation Act s 17]. The penalty for this offence is seven years imprisonment. Further, possessing articles for use in manufacture or production of dangerous drugs is also an offence [MDA s 8C].

For information about the specifics regarding commercial and non-commercial quantities of each drug see Schedule 2 of the MDA.

Table 3: Penalites for manufacture or production - [s 8(2)]

Type of drug	Quantity	Maximum penalty
Schedule 1	Commercial quantity	Life imprisonment
Schedule 1	Non-commercial quantity	25 years imprisonment
Schedule 1	Manufacture in presence of child	Life imprisonment
Schedule 2	Commercial quantity	25 years imprisonment
Schedule 2	Non-commercial quantity	14 years imprisonment
Schedule 2	Manufacture in presence of child	25 years imprisonment

Possession

It is illegal to possess a dangerous drug [MDA ss 7-7D]. Under the MDA the definition of possession is not straightforward [MDA s 3(1)]. Possession is defined to mean both actual possession and constructive possession. Actual possession is when the illegal substance is under the owner's control, for example, in the pocket of the jeans they are wearing. Constructive possession means the drugs are being held by another person or in another place on behalf of the owner, provided the owner still has control over, or access to, the drug(s). A person can therefore be charged with possession if the drugs are found in their luggage, the boot of their car or a room at their house, or even at their friend's place. Possession is defined broadly and it covers a variety of situations.

The Prosecution must prove the person had either sole exclusive possession or joint exclusive possession over the drug. This means the control or custody may be shared, but it must be control or custody to the exclusion of persons other than those with whom it is shared. For example, if drugs are found in the kitchen of a house occupied by four people, their presence there would not be sufficient to establish control or custody by one of the four people, unless there is clear evidence that person claims possession (such as a confession). For further discussion on this issue, please see R v Filippetti (1984) 13 A Crim R 335.

The penalty imposed for possession depends on the type of drug, the quantity involved, and whether the drugs where found in a private or public place. For example the maximum penalty for a traffickable quantity of a Schedule 1 drug, such as heroin, would be 14 years in prison if the person was found with the drugs when they were in a public place, say on the street, but only seven years if the drugs were found at their home. See Table 4 below.

Table 4: Penalties for possession

Quantity/ location	Penalty
Schedule 1 drugs
Possession of a commercial quantity	25 years imprisonment
Possession of a traffickable quantity	7 years imprisonment
Possession of less than a traffickable quantity	200 penalty units or 2 years imprisonment
Possesion of a traffickable quantity in a public place	14 years imprisonment
Possesion of a less than traffickable quantity in a public place	500 penalty units or 5 years imprisonment
Schedule 2 drugs
Possession of a commercial quantity	14 years imprisonment
Possession of a traffickable quantity	5 years imprisonment
Possession of less than a traffickable quantity	50 penalty units
Possesion of a traffickable quantity in a public place	7 years imprisonment
Possesion of a less than traffickable quantity in a public place	200 penalty units or 2 years imprisonment

On the spot fines

If a person is possesses less than a trafficable quantity of a cannabis (either in a public place or not), a police officer may issue the person an infringement notice for the amount equal to the value of two penalty units [ss 20, 20A]. This does not mean that the use of cannabis has been legalised or decriminalised. It just means that offenders have an option to avoid going to court. An infringement notice can only be issued to a person over the age of 18 years.

Less than a traffickable quantity of cannabis amounts to 1 gm of oil, 10 gms of resin or seed or 50 gms of cannabis plant material.

Administrative costs may also have to be paid if the fine is not paid within 28 days from the date the notice is issued. If the penalty is paid, no conviction is recorded and no further action is taken. If the fine is not paid by the due date, the fines may increase and further actions may be taken against the person who was issued with the notice.

If person challenges the infringement notice, the matter goes to court, and if the court finds that the offence was committed, a conviction may be recorded against the offender (see Nature of infringement notices and disputing them in court).

Administering

A person who intentionally takes a dangerous drug commits an offence called administering [MDA s 13]. The maximum penalty for this offence is a 50 penalty units or imprisonment for 6 months.

A person is also guilty of this offence if they allow another person to administer a drug to them, for example, by person 'A' allowing person 'B' to inject a drug into A's arm [MDA s.14]. The maximum penalty for this offence is a 50 penalty units or imprisonment for 6 months.

Drug equipment

It is also an offence to possess a thing that is used in the administration of a dangerous drug, such as a ‘bong’ [MDA s 12(1)]. The maximum penalty for this offence is a 50 penalty units or imprisonment for 6 months. When prosecuting this offence, the police have to prove that the 'possession' was 'unlawful', that is, without authorisation or excuse.

It is not an offence for a doctor, pharmacist or other authorised person to possess hypodermic needles or syringes or for a person to obtain hypodermic needles or syringes from a doctor, pharmacist or other authorised person if they are to be supplied to a person in their unused state for use in administration of a dangerous drug as soon as practicable agfter being obtained [MDA s 12(1)].

However, it is an offence if there is a failure to properly and safely dispose of a needle or syringe. The maximum penalty for this offence is a 50 penalty units or imprisonment for 6 months [MDA ss 12(4)-(5)].

Receiving tainted property

It is an offence to receive or possess 'tainted property', which is property that was obtained directly or indirectly from the supply of a dangerous drug anywhere in Australia [MDA s 8]. To be found guilty of this offence, the person who received the tainted property must have known or believed that it was obtained from supplying dangerous drugs. The maximum penalty for this offence is 25 years imprisonment.

Sentencing

Drug offences are heard either in the Supreme Court, Local Court or Youth Justice Court.

Matters that must be dealt with in the Supreme Court

Ordinarily, all matters that are punishable by more than 10 years imprisonment must be dealt with in the Supreme Court [Local Court (Criminal Procedure) Act 1928 (NT) s 121A(1)(a)(i)]. However, s 22 of the MDA carves out an exception to this Local Court if they have been charged with supply, cultivation, manufacture, possession or theft of dangerous drugs provided the maximum penalty possible doesn't exceed 14 years imprisonment [MDA s 22(1)].

Despite s 22(1), this option is not open to a person who, if found guilty, would be a ‘declared drug trafficker' under section 36A of the MDA [s 22(2)].

Factors the Court considers

The factors a judge or magistrate can take into account when sentencing are many and varied. Each case will differ and it is dangerous to generalise. Factors for consideration include:

• the quantity of the drug involved
• the extent of any commercial dealing
• whether the drugs were intended for personal use
• any prior convictions, especially prior drug convictions
• the offender's contribution to society and the local community
• whether the offender supports and maintains a family
• the offender's age, for example if the offender is young (under 21 years of age) or an aged pensioner
• in relation to cannabis plants, the size and number where there was little likelihood of the plants maturing
• any drug dependency by the offender, especially whether any positive steps have been taken for rehabilitation
• other evidence of the offender's rehabilitation.

Fines

Following a finding of guilt, s 28 of the MDA provides that in addition to any other penalty for any of the offences referred to in this chapter, the court may also impose a fine. The fine may exceed the maximum amount that the relevant provision stipulates.

If the offender defaults in paying the fine then the court can impose up to three years imprisonment, even if it exceeds the maximum prison sentence laid down in the provision.

Declared drug trafficker

Where a person has been found guilty of an offence listed under section 36A(6) and that person has, within 10 years of the court's finding of guilt, is then found guilty on two or more occasions of an offence under subsection (6) or on one occasion of 2 (or more) separate charges relating

to separate offences the court must, upon application by the Director of Public Prosecutions, declare that offender to be a 'drug trafficker' [MDA ss 36(1), (3)].

Amongst the offences under subsection (6) are:

• supply of a dangerous drug of any quantity
• cultivating a commercial or traffickable quantity of a traffickable plant
• manufacture of a commercial or less than commercial quantity of a dangerous drug (including in the presence of a child)
• possession of a commercial or traffickable quantity of a dangerous drug (including in a public place)
• conspiring with another person to commit any of the above offence or committing any of the above offences in another state or territory
• importation of border controlled drugs

The offences are considered regardless of whether they were tried summarily or on indictment [MDA s 36(4)(B)]. If a person served a term of imprisonment for one of the above offences during the 10 year period, the10 year period is extended by the total length of time the person served in imprisonment [MDA s 36(5)].

In this situation, the offences have to be determined by the Supreme Court, even if the offence was one which was capable of being determined by the Local Court. There are two very important implications in this situation:

1. the Supreme Court can award the maximum sentence for the offence (whereas the Local Court has a jurisdictional limit).
2. a declaration that an offender is a 'drug trafficker' exposes them (under section 94 of the Criminal Property Forfeiture Act 2002 (NT)) to the automatic forfeiture of all property and assets they own (or have effective control over), and that is in addition to any sentence imposed by the Supreme Court.

Search, seizure and forfeiture

Search and seizure

For an explanation of the Police’s powers of search and seizure, including in relation to dangerous drugs, please refer to search and seizure and, in particular, search and seizure in relation to drug offences.

Forfeiture of property

When a charge (including summons) is taken to court, a judge or magistrate can order that a drug or precursor be forfeited, regardless of whether or not the person has been convicted of an offence relating to it [MDA s 34].

The court also has the power to forfeit property that relates to an offence [MDA s 34]. The prosecution can apply to have property relating to an offence, such as a car or plane used to courier drugs, land used to grow drugs, a shed used for storing drugs, or money made from dealing in drugs, forfeited to the government. This power for property to be forfeited, as opposed to drugs or precursors, only extends to situations where a person had been found guilty of a drug offence and the property in question relates to the offence. An example would be hydroponic equipment, lights, power boards and so on, used in the cultivation of cannabis where the offender was convicted of cultivating cannabis.

Anyone who has a claim or entitlement to the property to be forfeited, other than the offender, has the right to intervene in the application to preserve their interests.

Note: this power is in addition to proceedings under the Criminal Property Forfeiture Act 2002 (NT).

Federal offences

The Customs Act 1901 (Cth) is a federal law regulating the movement of goods across Australia’s borders, including search, seizure and control powers exercised by customs officers.

Substantive offences relating to the importation or exportation of dangerous drugs are found in Division 307 of the Criminal Code Act 1995 (Cth) which prohibits importing or exporting “border controlled drugs” and precursors.

The Customs (Prohibited Imports) Regulations 1956 (Cth) designates certain substances as prohibited imports and enables importation of others with permission.

Any person charged under Commonwealth drug-importation laws should seek legal advice immediately (see Legal aid ).