Jimmy Singh and Poppy Morandin.

Key Takeaways

It is illegal to possess, supply, manufacture or produce Kratom (‘mitragyna speciosa’) in Australia. These offences range from 12-months jail to 2 years jail and/or $2,200 fine in NSW. Similar penalties apply across State and Territories of Australia because Kratom is a schedule 9 substance under the Current Poisons Standard referred to in the Poisons list.

What is Kratom?

Kratom (‘mitragyna speciosa’) is a type of plant with large green leaves that is reported to have mild stimulant effects. It’s known for its analgesic properties and euphoric effects. The leaves contain mitragynine chemicals that work similar to opioids such as morphine. Whilst many advocates have praised the plant for its health benefits, it is currently illegal in Australia.

It traditionally grows in Papua New Guinea, Thailand, Indonesia, and Malaysia, and has been compared to opiates and other stimulant drugs.

A study by John Hopkins Medicine, in surveying 2,700 self-reported users, found that 91% of them used the substance for pain relief.

It was used for anxiety in 67% of studied cases, in 64% to treat depression, and in 41% of users to treat opioid dependence.

Of those using the drug to treat for opioid dependence, 87% reported relief from withdrawal symptoms, and 35% went for more than a year without taking opioids or heroin.

Types of Kratom

Is Kratom used as a tea? Kratom is sold as tea, powder, capsules, and leaves.

What is Kratom leaf used for? The leaves were traditionally chewed in Thailand and other parts of Asia.

What is the active drug in Kratom?

There are multiple different strains of kratom, which provide different effects to users. This is due to different levels of the two principal alkaloids, ‘mitragynine’ and ‘7-hydroxymitragynine.’

The strains are differentiated by the colour of the veins present on the leaves, and include white vein kratom, red vein kratom, and green vein kratom.

What are the Benefits of Kratom?

Reported effects of Kratom include relaxing muscles, managing pain, acting as a mood-supportive and causing a euphoric feeling.

What are the side-effects of Kratom?

The side effects of kratom are reported to include low blood pressure, gastrointestinal issues, nausea, lethargy, dizziness, vomiting.

Studies indicated that 19% of users experience mild side effects, with only 1.9% experiencing serious side effects.

However, the Mayo Clinic has reported that kratom has caused at least 36 deaths.

It remains illegal in many countries including Denmark, Finland, Israel, Japan, Latvia, Lithuania, Myanmar, Malaysia, Poland, Romania, Russia, Singapore, South Korea, Sweden, Thailand, and Vietnam.

Internationally, kratom has accounted for the greatest proportion of the weight of plant-based ‘new psychoactive substances’ seized globally (82%), for three years in a row, as per the Australian Criminal Intelligence Commission.

Sellers have been known to attempt to post kratom through the mail, labelled as ‘green tea’ or ‘coffee’.

Kratom was criminalised in Australia in 2005. The plant remains in the Schedule 9 category of the Poisons Standard (current edition being the Poisons Standard February 2022).

Substances within the schedule 9 category are classified as ‘prohibited substances’ as per the national classification system.

The Schedules published in the Poisons Standard are given legal effect through state and territory legislation.

Is Kratom Legal in Australia?

Kratom is illegal across all States and Territories in Australia including New South Wales. In New South Wales, substances under schedule 9, and prohibited drugs, prohibited plants, illicit drug precursors and reagents are criminalised under the Drug Misuse and Trafficking Act 1989 (NSW).

It is illegal to possess a schedule 9 substance which includes Kratom. This carries criminal penalties of up to 12 months’ imprisonment and/or $2,200 fine prescribed by section 18B(3) Drug Misuse and Trafficking Act 1989 (NSW).

Up to 2 years imprisonment and/or $2,200 fine apply for manufacturing, producing, supplying, or knowingly taking part in these activities concerning a schedule 9 substance, including Kratom, according to section 18B.

However, available defences to these offences include the following:

  • If you hold a valid license or are authorised to manufacture, produce, supply or possess Kratom under the Poisons and Therapeutic Goods Act 1966 (NSW), or
  • You are authorised to manufacture, produce, supply or possess Kratom by the Secretary of the Ministry of Health under section 17D of that Act.

Speak to our drug lawyers Sydney team to get tailored and personalised advice if you are facing kratom related charges.

However, statistics reveal that over 63% of offenders are convicted and receive a fine only.

Other substances that are considered ‘schedule 9’ prohibited substances include synthetic psychoactive drugs, which aim to mimic the effects of other existing illicit drugs, such as cannabis, cocaine, and ecstasy.

Accordingly, many of these substances are also criminalised under section 18B.

The Drug Misuse and Trafficking Act 1985 (NSW) prohibits “prohibited drugs” outlined in schedule 1 of the Act. It also recognises and prohibits schedule 9 substances as substances within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) under the definitions section of the Drug Misuse and Trafficking Act.

Accordingly, section 8 of the Poisons and Therapeutic Goods Act 1966 outlines the poisons list, and includes schedule 9 (including Kratom) as “substances which are specified in Schedule 9 of the current Poisons Standard (within the meaning of Part 6-3 of the Commonwealth Act). This refers to the Commonwealth Poisons Standard February 2022.

What is a schedule 9 drug?

A schedule 9 is a prohibited substance (also known as a poison) which may be abused or misused, the manufacture, possession, sale or use of which should be prohibited by law except when required for medical or scientific research, or for analytical, teaching or training purposes with approval of the Commonwealth and/or State or Territory Health Authorities.

The Standards Lists poisons in schedules from 1 to 10 (Scheduled drugs in Australia). This is in order of the degree of control recommended to be exercised over their availability to the public. These numbers reflect the increasingly restrictive regulatory controls.

Schedule 3 drugs in Australia under the Poisons List are considered poisons for therapeutic use. Professional advice is recommended before use, although these can be available from a pharmacist without a prescription.

What Class of Drug is Kratom?

Kratom is a schedule 9 substance, and is recommended to be available only for teaching, training, medical or scientific research including clinical trials conducted with Government approval from Commonwealth and/or State and Territory health authorities.

These substances or poisons are not scheduled on the basis of a universal scale of toxicity. Toxicity is only one of the considered factors, and it’s itself a complex of factors, the decision to include a substance in a particular schedule also considers many other factors including the purpose of its use, abuse potential, safety in use and need for the substance.

The applicable maximum penalty for supply and manufacture of ‘schedule 9’ prohibited substances is significantly lower, when compared to those classified as ‘prohibited drugs’ or ‘prohibited plants under the Act.

This is due to the government imposing the overarching offence, to adapt to new substances that may arise and are included in the current Poisons Standard as ‘schedule 9’.

It seeks to prevent manufacturers from passing through legal loopholes by tweaking the drugs’ chemical structures, including with respect to plant-based substances, such as kratom.

The legislature has noted that once a substance has been identified and concerns have arisen and been considered regarding its misuse, health risks and any associated criminal activity, it can be specifically included in Schedule 1 of the Drug Misuse and Trafficking Act.

Schedule 1 of the Act prescribes a list of substances, and plants, to be considered ‘prohibited drugs’ or ‘prohibited plants’ and sets out the relevant weights with respect to what is considered a small, traffickable, indictable, commercial, or large commercial quantity.

Here is more on schedule 8 drugs under the Poisons List of the Commonwealth Legislation outlined earlier.

Published on 05/04/2022

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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