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Is Modafinil Legal In Australia?

ADHD letters

Modafinil is classified in Schedule 4 by the Therapeutic Goods Act (TGA) as a “Prescription Only Medication”. It’s therefore illegal to import, distribute, sell, or be in possession of Modafinil in Australia without a valid prescription. Unprescribed use, supply, sale, or purchase attracts a heavy fine under Australian laws.

What Is Modafinil?

Modafinil is a medicine commonly used to treat narcolepsy- a sleeping disorder, and attention deficit hyperactivity disorder (ADHD). It’s renowned for inhibiting sleepiness by increasing neurotransmitters.

 

This medicine doesn’t cure the disorders it’s prescribed for but helps stay awake, focused, or alert as long as it remains active in the body. It’s estimated that, Modafinil or Smart Drug lasts in the body for 10-22 hours. This time variance is influenced by one’s genetics and other supplements taken with Modafinil.

 

It’s classified as both eugeroic and nootropic since it promotes wakefulness and boosts cognitive effects. This drug works on the receptors of the brain to increase norepinephrine and dopamine levels in the brain. The Modafinil variants you’ll find in the market include the ModaXL, Modvigil, Modalert, ArmodaXL, Modalit, and Modavinil.

 

Although they are designed for sleeping disorder prescriptions, off-label users use them to boost memory, increase productivity, promote focus, and reduce jet lag effects.

 

Modafinil and its generics are taken by mouth in quantities prescribed by a certified pharmacist or doctor.

Modafinil Negative Effects

Whereas there are no documented long-term effects linked to the usage of Modafinil and its generics, they have side effects. And although the effects vary from individual to individual, Smart Drugs have potential health risks. Individuals taking Modafinil drugs to stay awake are more likely to suffer mental health issues.

 

Just like any other drug, Modafinil has side effects which include:

 

•         Nausea

•        Dizziness

•        Dry mouth

•        Nervousness

•        Chest pain

•         Headache

•        Sleeplessness

 

The Australian Therapeutic Goods Administration has been advising people on the dangers of using nootropics without a valid prescription.

 

Modafinil is sold in online pharmacies, online vendors and chemist shops. To limit its misuse, limitations were imposed by classifying Modafinil under Schedule 4 substances. Due to the wakefulness effect of this drug, it’s highly likely to be misused if uncontrolled by regulatory institutions.

Is Modafinil Legal in Australia?

Is Modafinil legal in Australia? No, it’s illegal to buy, sell or use Modafinil in Australia without a prescription. Being a border-controlled drug, it’s an offence to import/export, attempt to import, or be in possession of commercial quantities without a prescription. Importing more than is prescribed is also illegal.

 

The maximum penalty for importing prescription-only medicine without a prescription is a $222,000 fine, as per section 50 of the Customs Act 1901(Cth). The Australian Border Force is authorised under the Customs Act 1902 (Cth) to seize prohibited imports if one is unable to prove prescription.

 

According to the Therapeutic Goods Administration (TGA), restricted medicines and drugs likely to be misused or abused must be declared at the border. Other restricted medicines under this classification are strong pain medicines, cannabis, and steroids.

 

Modafinil Australia was approved by FDA in 1988 to help in the management of sleeping disorders like narcolepsy making it legal to use.

 

The original Modafinil and its generic versions aren’t prima facie illegal in Australia. Buying modafinil in Australia in small amounts for personal use with a prescription is considered legal. And there also mitigating factors if caught with schedule 4 medicines.

 

Under section 25(1) Drug Misuse and Trafficking Act (1985) NSW, it’s a criminal offence to supply prohibited drugs in NSW. The Australian Border Force can intercept Modafinil medicines and if they don’t adhere to the prescribed amount or the prescription found invalid be declared illegal.

Offenses and Penalties: Using or Buying Controlled Drugs within the Australian Territories

Being a controlled drug, Modafinil is classified under Schedule 4, prescription-only medicine, it’s an offence to sell, supply or use without a health professional prescription across all the Australian territories.

 

•        In North South Wales (NSW), Schedule 4 medicines are classified as “restricted substances”. It’s therefore an offence to be in possession of a restricted substance or attempt to obtain it without a prescription. Illegal possession of drugs in NSW attracts a fine of $2,200 fine or 2-years imprisonment or both. It’s also an offence for Individuals or retailers to sell Modafinil Australia and it attracts a $1,600 fine or 6 months imprisonment.

 

•        In Queensland, purchasing or being in possession of a drug under Schedule 4 under the Medicines and Poisons Act 2019 (QLD) without a legal prescription is an offense and it attracts a maximum penalty of $27,570. If caught supplying Modafinil without legal authority, the maximum penalty is a $68,925 fine.

 

•        In the Australian Capital Territory, Modafinil is a prescription-only medicine according to the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT). As per Section 26, it’s an offense to be found in supplying Modafinil without a valid prescription and it attracts a maximum penalty of $80,000 fine or 5 years imprisonment or both. Being in possession is also illegal and carries a maximum penalty of a $32,000 fine, and/or 2 years imprisonment.

 

•        In the Northern Territory, to sell, supply, or be in possession of Modafinil without a legal doctor’s prescription. Using or possessing it without a valid prescription leads to a maximum penalty of $15,700 or 12 months imprisonment. Supplying is an offense that attracts a maximum penalty of $31,400.

 

•        To sell, possess or supply Modafinil in South Australia is illegal as per the Controlled Substances Act 1984 (SA) without a prescription. If found guilty of supplying, selling, using, or prescribing Modafinil without legal authorisation, the maximum penalty is $10,000.

 

•          To Supply, sell or be in possession of Modafinil while in Western Australia without proper authorisation is an offense as per section 14(1) and (4) of the Medicines and Poisons Act 2014 (WA). It attracts a maximum penalty of $45,000.

 

•        Tasmania criminalises the supply, use, or possession of Modafinil. Being in possession of Modafinil is illegal according to section 36 and carries a maximum penalty of a $6,850 fine or 2 years imprisonment. The offense of supplying or selling Modafinil is punished with a maximum fine of $2,740 according to Section 26.

Sentencing Considerations if Found in Possession, Selling or Supplying Modafinil without Prescription

In accordance with the Controlled Substances Act 1984 Section 44, a court may consider the following factors when sentencing for prescribed drug offenses;

 

•        Financial gain to be accrued by the commission of the offense

•        The motive of the convicted person at the time of the commission of the offense

•        Whether the offense was committed at a prescribed place or near a school

•        Personal circumstances such as personal use of the convicted person

 

If found in possession, selling or supplying a prohibited drug in Australia, it’s likely to be fined with conviction, imprisoned, offered a Condition Release Order non-conviction, awarded a Community Correction Order or an Intensive Correction Order.

Prohibited Drug Possession Defenses

A person in possession of a prohibited drug like Modafinil can be found ‘not guilty’ if the person can prove;

 

•        Was in possession of the medicine due to necessity or duress

•        Was not aware of the existence of the drug in his possession

•        The prosecution is unable to prove the alleged drug is prohibited in Australia

•        The drugs were found as a result of illegal search or arrest by the police

•        The medicine/drug was discovered in a common area by the police and other people had an access to the area.

What is a Prescription?

Prescription is a legal document used by health practitioners to write for a doctor, pharmacist, or authorised seller to dispense a specified medicine. Without the prescription document, it’s illegal to be in possession of a prescription-only medicine.

 

The purposes of a prescription document are to;

 

•        Ensure a health practitioner examines the condition and needs of the user

•        Explain how the medicine is administered and the potential health risks

•        Determine other medicines likely to cause negative interactions

•        Determine the right medicine

 

Before a pharmacist dispenses prescription-only medicine, the authenticity of the prescription has to be ascertained. The authority and identity of the prescriber and the identity of the person presenting the prescriber have to be verified to be genuine.

 

Since both the pharmacist and prescriber are equally liable for injuries caused by misleading prescriptions, ensuring a prescription meets all the set requirements is important.

 

A prescription for Schedule 4 medicines is valid if it’s less than one year from the date of issue.

Can a GP Prescribe Modafinil in Australia?

A GP (general practitioner) in Australia is responsible for offering health advice, screening, vaccinating, and prescribing medicines which include Modafinil, antibiotics, antihistamines, antidepressants, and anti-inflammatory medicines. A general practitioner (GP) is a qualified doctor certified in general medical practice. Before a general practitioner can prescribe Modafinil, he/she must;

 

•        Completed training and be accredited in prescribing education

•        Be approved for prescription of RPBS or PBS by the National Health Act 1953

•        Be registered under the National Board

•        Be registered with the Australian Health Practitioner Regulation Agency (AHPRA),

•        Registered with the Medical Board of Australia.

 

The sale, supply, administration, or possession of prescription-only medicine is regulated by the Controlled substances (Poisons) Regulation 2011 and the Controlled Substances Act 1984.

How to Get a Prescription for Modafinil Australia

This is how to get a prescription for Modafinil Australia; visit a credited hospital doctor, general practitioner, dentist, pharmacist, or nurse in person. If visiting a health practitioner is impossible, you can get a prescription for Modafinil Australia through a Telehealth prescription and Telemedicine prescription. But one must first consult a health practitioner before asking for the prescription.

 

This means a prescription can either be handwritten, electronic, or printed.

 

For a Modafinil prescription to be legal, it must bear the following minimum requirements:

 

•        Clearly stated valid date of issue

•        Sign in ink by an authorised prescriber

•        Clearly written name and address of the patient

•        The specified age of the intended user, if below 12 years

•        Printed or written legibility in ink

•        If the prescription is computer-generated, the prescriber’s signature must be handwritten

•        The approved name of the medicine, or generic name

•        Specified dosage and frequency

•        Quantity to be supplied

 

A prescription can be invalidated if it appears forged or altered, there missing information, hard to read and interpret, and the prescriber isn’t authorised. According to the Drug Misuse and Trafficking Act 1985 No 226 Section 26, it’s an offense to knowingly and false representation either verbally, by conduct, or in writing obtain a prescription from a health professional.

 

Under the same Act, it’s an offense to induce a pharmacist to fraudulently dispense and falsely obtain a prescription. Under Section 15, one is guilty of an offense if fraudulently alters or forges a prescription knowing to be of a medical practitioner.

 

Once a consumer has a valid prescription, he/she can legally import the specified quantity from any country as provided or in the Therapeutic Goods Administration (TGA) Personal Importation Scheme.

Laws Regulating the Sale, Supply, Prescription, and Use of Modafinil Australia

It’s because of the laws and regulations prohibiting the use, sale, supply, and prescription without proper authority and possession of Modafinil that it’s illegal in Australia. The following legislations regulate Modafinil in Australia;

 

•        Controlled Substances Act 1984 (SA) – Controls sell, manufacture, supply, and possession of controlled substances

•        Poisons Regulation 2018 and Tasmanian Poisons Act 1971 – Controls supply, use, and possession of prescription medicines

•        Therapeutic Goods Act 1989 – Provide for the regulation and establishment of national systems for the control of prescription medicines

•        Controlled Substances (Poisons) Regulations 2011 – Regulate supply, sale, possession, and administration of prescription-only drugs

•        Drug Misuse and Trafficking Act 1985 – Prohibit the possession, manufacture, supply, and use of restricted drugs

 

Section 18A of the Drug Misuse and Trafficking Act 1985 also regulates advertising any premises as available for an illegal administration of prohibited drugs like Modafinil.

 

The Drug Misuse and Trafficking Act 1985, Section 14(1) prohibits permitting another person to administer prohibited drugs.

 

If you require legal advice or representation in a Modafinil or any other prohibited drug-related matter, you should contact a drug offence lawyers in Sydney from Lyons Law Group.

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    Author

    • Mohammad Khan | Criminal Defence Lawyer

      Mohammad Khan is the Principal Solicitor of Lyons Law Group. After graduating with a Bachelor of Aviation from the University of New South Wales, Mohammad took a keen interest in the law. He began training in criminal law under the tutelage of Australia’s leading criminal lawyer Adam Houda and studied law at the University of Sydney.