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Thelema

SALVIA DIVINORUM and KRATOM back in OZ!

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Customs Legislation Amendment Regulation 2013 (No. 1)SALVIA DIVINORUM and KRATOM legal to an extent in NSW

Salvia Divinorum and Kratom are actually legal to some extent in NSW. This applies to live plants, cuttings, dried parts of the plants, extracts and to Salvinorin A and Mitragynine, for possession, cultivation, extraction, and sale - not including any package that describes effects, any such products in capsules, and any other form that could fall under TGA restrictions (eg. not marketed as a therapeutic good or for human consumption.)

This might surprise you, for it has been widely assumed that since the NDPSC placed these items as well as live plants in Schedule 9 of the SUSMP, that these items were prohibited Australia - wide.

How are these things legal in NSW?

Every other state and territory in Australia either through its Poisons code, Health Act, or Drugs Act imports S9 of the SUSMP. It has not been noticed until recently that S9 of the SUSMP is not used in any NSW state laws.

The relevant acts in NSW are the Poisons & Therapeutic Goods Act 1966 (NSW) which uses 8 schedules, S1-S8 as it's "poison's list" under section 8. The regulations for this Act section 3(2)c explicitly state that reference to S1 - S8 of the "poison's list" in the act refer to the SUSMP schedules S1- S8. This act defines "drugs of addiction" as S8 of the SUSMP. In addition, they have added a few more things to the "Poison's List" which is a State allowable legislative instrument here.

The other relevant act in NSW is the Drugs Misuse & Trafficking Act (NSW) which has a Schedule at the end of the act (Schedule 1) detailing prohibited plants and substances, as well as their analogues. It has been expressed that Substances in any schedule in either of these 2 acts do not apply to LIVE plants. Schedule 1 of this act is very similar to S9 of the SUSMP, and performs the role that SUSMP S9 does in most states.

Except - This schedule 1 does not include Salvia divinorum, Kratom, or any of these plants' associated actives.

Clearing up some disinformations/misinformations

The NSW department of health website and allied is fond of saying "possession of hallucinogens is prohibited in NSW" e.g: here. No doubt they base this on s.105 of the Poisons and Therapeutic Goods Regulations (NSW) which says "a person must not obtain possession of a hallucinogen unless authorised to do so..." and sets a penalty. This is classic disinformation at its best: for if one looks up the definition of "hallucinogen" in this very regulation, it says:

"hallucinogen" means any of the following drugs of addiction:

(a) etorphine,

(
B)
tetrahydrocannabinol and its alkyl homologues where Schedule 8 of the Poisons List applies.

Further Questions?

Can I import these 2 plants, extracts or chemicals from overseas into NSW?

Salvia divinorum and Kratom (and their associated actives) are explicitly listed as Customs-controlled plants, precursors or substances as added this year by Customs Legislation Amendment Regulation 2013 (No. 1) to the Customs (Prohibited Imports) Regulations 1956 , and none of them are in the Criminal Code (CTH). I include Regulations as well as Acts.

Trade between states

The usual view is that with interstate trading from NSW in this case, the seller commits no crime but the buyer and/or receiver would. Some states, however, may be in a position to prosecute the seller. I'm not very clear about the laws in this case.

Edited by Thelema
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isn't it scheduled on the federal level still?

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Thelema is quite right.

qualia, the federal scheduling is in S9 which does not apply in NSW under most circumstances [see his post for the details]. I recommend anyone who considers buying these to CAREFULLY read Thelema's post as it contains quite a few details of what NOT to do. This is not a matter of 'legal under all circumstances', but rather 'legal under certain circumstances'. If you get it wrong you can get into a lot of trouble.

I know this is probably futile, but I'd just like to remind everyone that the more noise they make about this the shorter this will last. I'll move this thread to the protected legal forum in the next few days to reduce exposure.

The quickest way to get things banned is to make enquiries with relevant authorities.

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my hands up for sum plants or cuttings ! i have a friend in nsw or i can pic up!!

Edited by bullit

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are there kratom alkaloids around? or just plants?

more keen on extracts.

kewl!

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please don't use this as a trading forum

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Hmmm. Does this mean that if we were to ship live salvia cuttings from NZ to NSW we won't be exporting prohibited goods that could land us in hot water on our side of things?

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Hmmm. Does this mean that if we were to ship live salvia cuttings from NZ to NSW we won't be exporting prohibited goods that could land us in hot water on our side of things?

Not declaring it for inspection by AQIS is probably illegal. They don't want you bringing in foreign pests....such as Kiwis =P

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^^ it's the Kea's you have to worry about...shifty buggers.

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geez, please read the original post properly before asking questions. bringing a cutting from NZ to NSW would be importing and hence all the warnings given in regards to importing apply [as well as the usual quarantine issues]. In short it's a great way to fuck things up for everyone real quick. I am sure plenty of people will make cuttings available from within australia once they read this thread.

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please note original post edited to include current law prohibiting import of these plants.

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Interesting.

This thread will self-destruct in 5 seconds... (hopefully)

Edited by Halcyon Daze

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Cool.

Edited by SunChaser
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Edit- thanks for the info thel.

Edited by incognito

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I know this is bumping an old thread, can someone who is kind enough to pm me in plain english about the status of this in NSW as of 2017? Please and thank you.

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Actually, if someone has anything new to say about this, can you please post it here rather than PMing Drake? I'm sure others would be interested as well.

 

But unless anything has changed, I believe the 2013 "significantly psychoactive" laws technically cover anything that you could possibly get high off. I'm not certain whether this is true, but I have heard it claimed that this was partly due to salvinorin being so unique and hence difficult to claim as an analogue of another illegal drug - to prevent such loopholes in future they created this legislation which said that a drug doesn't even have to be similar to another illegal drug to be banned - if people are using it to get high, then that's enough now in NSW. Queensland also, I think - not sure if other states have followed suit. There may still be some wiggle-room with nootropics etc (which have minimal subjective effects) to argue about how psychoactive they are and whether they should be included, and I don't know how often these laws have been tested in court over the last three years, but it looks like most recreational drugs past, present & future would be covered under these laws. The only exceptions will be things that are specifically approved by the TGA, so maybe marijuana products at some point. So basically we have the opposite situation now to what we used to (& some countries still do) - it used to be that a drug was legal until there was specifically a ruling to ban it - now they are illegal unless the TGA says they are ok. So long, freedoms! :wave-finger:

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Current situation is that the herb is illegal under state and federal laws, however the live plant would not be included in this under NSW state laws (and the feds don't pursue simple plant possession). The new psychoactive substances laws do not affect herbs and herbal products, so nothing has changed due to them. The live plant exemption does not apply in most other states and definitely does not apply in Qld and WA.

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So in NSW its legal to trade and cultivate live salvia divinorum plants?

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not really, just because the feds dont generally persue plant possession dont mean its legal   

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Thanks for the update and clarity Torsten.

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So its similar to American Marijuana laws. Certain states are legal, but over all federally its still illegal?
Modern laws are strange, but this is good to know. There was a recent tv doco on salvia, got me interested.

 

Thanks a bunch Torsten & Hillbillios  :) 

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