Your Guide To New South Wales MDMA (‘Ecstacy’) Laws

The substance known scientifically as 3,4-Methylenedioxymethamphetamine is commonly known as MDMA or ‘ecstasy’.

The drug has been around for decades, and remains a popular party drug, particularly amongst young adults.

According to the latest national statistics  12.5% of Australians have used MDMA in their lifetime and 3% have used in the past 12 months.

Here’s a summary of the nature and effects of MDMA, as well as the laws, penalties and defences that apply to  offences involving the drug in New South Wales.

What is MDMA and what are its effects?

MDMA is known as an ’empathogen’ as it increases an individual’s feeling of empathy and kindness,  and increases feelings of being socially accepted by and connected to others.

It works by increasing the levels of opamine, norepinephrine and serotonin in the brain.

The short term effects of MDMA include:

• Feelings of euphoria,
• Dilated pupils,
• Relaxation and reduced anxiety,
• Increased emotionality, and
• Enhanced sensation, perception or sexual desire.

MDMA is commonly sold in tablets or capsules, but can also be in powder or crystal form.

Ecstacy pills can come in different colours and sizes, often having a picture, symbol or logo on the face – or even of a face, a smiley one!

MDMA pills and “caps” sold in Australia are often ‘adulterated’ with other drugs which increase the risk of adverse outcomes.

This has led to calls to expand pill testing (or ‘drug-checking’) services so that people understand what they are taking.

The offence of importing or exporting MDMA

The importation of MDMA (a ‘border controlled drug’) is an offence under sections 307.1 (commercial quantity), 307.2 (marketable quantity) and 307.3 (any quantity) of the Criminal Code Act 1995.

To be found guilty of an importation offence, the prosecution must prove beyond a reasonable doubt that:

• A person imported MDMA and
• The person knew they were importing MDMA, or was reckless as to whether or not they were importing MDMA.

The term ‘import’ includes  bringing the substance into Australia, as well as dealing with the drug in connection with its importation. .

If the prosecution wishes to charge a person with importing a marketable or commercial quantity of MDMA, they will need to prove the existence of that quantity.

A marketable quantity of MDMA is 0.5 grams. A commercial quantity is 500 grams.

The maximum penalties for importation offences are:

• 10 years imprisonment for importing less than a marketable quantity of MDMA under section 307.3 of the Code 
• 25 years imprisonment for importing more than a marketable quantity of MDMA but less than a commercial quantity under section 307.2 of the Code 
• Life imprisonment for importing a commercial quantity of MDMA or more under  section 307.1 of the Code.

The offence of manufacturing MDMA

To ‘manufacture’ MDMA means to to make up, prepare, produce, process (including by extracting or refining), package or label the psychoactive substance.

Several offences relating to the manufacture and production of prohibited drugs (including MDMA) are found under the Drug Misuse and Trafficking Act 1985 NSW. These include:

• Manufacturing or producing or knowingly taking part in the manufacture or production of a prohibited drug under section 24(1) of the Act.
• Taking part in the activities above whilst exposing a child to the manufacturing or production process, or to substances being stored for use in the manufacturing or production process under section 24(1A) of the Act.
• Manufacturing or producing or knowingly taking part in the manufacture or production of a prohibited drug which is more than the commercial quantity under section 24(2) of the Act.
• Taking part in the activities above whilst exposing a child to the manufacturing or production process, or to substances being stored for use in the manufacturing or production process under section 24(2A) of the Act.

A commercial quantity of MDMA under the Drug Misuse and Trafficking Act 1985 is 125 grams, and a ‘large commercial quantity’ is 500 grams.

The maximum penalties for manufacture and production offences depend on the quantity of MDMA manufactured of produced .

For an offence under section 24(1) of the Act, the maximum penalty is 10 years imprisonment and/or a $220,000 fine.

For an offence under section 24(2) of the Act, the maximum penalty is:

• 15 years imprisonment and/or a $385,000 fine if the MDMA is more than a commercial quantity but less than a large commercial quantity.
• 20 years imprisonment and/or a $550,000 fine if the MDMA is more than a large commercial quantity.

For an offence under section 24(1) of the Act, the maximum penalty is 12 years imprisonment and/or a $264,000 fine.

For the offence under section 24(2A) of the Act, the maximum penalty is:

• 18 years imprisonment and/or a $462,000 fine if the MDMA is more than a commercial quantity but less than a large commercial quantity.
• 25 years imprisonment and/or a $660,000 fine if the MDMA is more than a large commercial quantity.

Lesser penalties apply if the offence is capable of being tried summarily.

The offence of supplying MDMA

Section 25(1) of the Drug Misuse and Trafficking Act 1985 outlines the offence of supply of a prohibited drug, which includes MDMA.

Drug supply can include supplying drugs to friends without payment, sending drugs in the post, and being part of a group of people buying drugs with combined funds, selling them and splitting the proceeds. Even if a drug that you supply doesn’t contain an illicit substance, if you have represented it as an illegal drug you can still be charged and convicted of drug supply.

To prove the offence of supply in relation to MDMA, the prosecution must prove beyond reasonable doubt that a person supplied MDMA to another and knew, or believed at the time, the substance supplied was MDMA.

The maximum penalties which apply to supply offences depend on the quantity of MDMA supplied. For MDMA the following distinctions are made:

• A small quantity is 0.25 grams.
• An indictable quantity is 1.25 grams.
• A commercial quantity is 125 grams.
• A large commercial quantity is 500 grams.

The maximum penalties which apply for an the offence of supply for MDMA are:

• For less than a small quantity, a $5,500 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment  if the matter is heard in the District Court.
• For more than a small quantity, but less than an indictable quantity, a $11,000 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment  if the matter is heard in the District Court.
• For more than an indictable quantity, but less than a commercial quantity, a $11,000 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment  if the matter is heard in the District Court.
• For more than a commercial quantity, but less than a large commercial quantity, a $385,000 fine and/or 20 years imprisonment.
• For more than a large commercial quantity a $550,000 fine and/or life imprisonment.

It should be noted that under section 29 of the Act,  a charge of drug supply can be bought even if there is no evidence of a person actually supplying the drug.

This is known as ‘deemed supply’ and applies if a person is in possession of at least a ‘traffickable’ quantity of a drug. The traffickable quantity for MDMA is 0.75 grams.

To rebut a charge of deemed supply, the accused must establish (on the balance of probabilities) that the drugs were possessed for reasons other than supply.

The offence of possessing MDMA

Possessing a prohibited drug is an offence under section 10 of the Drug Misuse and Trafficking Act 1985 (NSW).

For MDMA, this offence will apply if a person is found in possession of any quantity of the drug.

The term ‘possession’ has been defined by the courts as in your ‘exclusive possession, custody or control’.

‘Exclusive possession’  requires the prosecution to exclude any reasonable possibility the drugs were not possessed by you.

The maximum penalty for drug possession is 2 years imprisonment and/or a fine of $2,200.

The offence of driving with MDMA in the system

Drug driving is an offence under section 111 of the Road Transport Act 2013 which criminalises a person who has any detectable amount of MDMA in their saliva, blood or urine whilst:

• Driving a motor vehicle; or
• Occupying the driving seat of a motor vehicle and attempting to put the motor vehicle in motion; or
• Supervising a learner driver.

The maximum penalty for this offence is:

• For a first offence, an on-the-spot driver licence suspension for 3 months and a penalty notice which is $602 at the time of writing, or an ‘automatic’ 6 month driver licence disqualification which can be reduced to 3 months and a fine of up to $2,200 if the matter is dealt with by a court, or
• For a subsequent offence, a $3,300 fine and an automatic licence disqualification for 12 months, which the court can reduce down to as low as 3 months or increase as it sees fit.

It is important to be aware that there will be no driver licence disqualification, no criminal conviction and no fine if the magistrate exercises his or her discretion to make a ‘non-conviction order‘, such as a section 10(1)(a) dismissal or a conditional release order without conviction.

The detection window for tests for MDMA in a persons’s system is:

• Up to 48 hours after the consumption of MDMA for saliva tests.
• Up to 48 hours after the consumption of MDMA for blood tests.
• Up to 5 days after the consumption of MDMA for urine tests.

Detection windows may be created if a person uses multiple drugs (whether illicit or medicinal) or have medical issues which impact drug metabolism.

Going to court for an MDMA-related offence?

If you are going to court for an offence relating to MDMA, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first conference with an experienced drug defence lawyer who will advise you of your options and the best way forward, and fight for the optimal outcome.