Section 5: Supplying, or offering to supply, a psychoactive substance
This section provides for two separate offences, namely supply of a psychoactive substance and offering to supply a psychoactive substance.
	For the supply offence, the conduct element is satisfied if a person supplies a substance to another person and that substance is a psychoactive substance. By virtue of section 59(2)(b), supplying for these purposes covers distribution. The transaction does not need to result in payment or reward and would include social supply between friends.
	There are three mental elements of the supply offence. First, the prosecution must show that the supplying of the substance is intentional. Second, the defendant must have known or suspected, or ought to have known or suspected, that the substance is a psychoactive substance.  Third, the defendant must know, or be reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied or another person for its psychoactive effects. The recklessness test would prevent a head shop proprietor escaping liability by arguing that because the psychoactive substances sold in his or her shop were labelled as "plant food", "research chemicals" or "not for human consumption", he or she did not know that the substances were likely to be consumed.
	The conduct element of the offering to supply offence is that the defendant offers to supply a psychoactive substance to another person. Such an offer could take the form of an advertisement, including a catalogue of psychoactive substances on display on a website with the facility to purchase online.
	There is one mental element to the offer to supply offence, namely that the defendant knows, or is reckless as to whether, the substance that is being offered is likely to be consumed by the person to whom it is supplied or by another person for its psychoactive effects. This element of the offence is constructed in such a way so that it would capture circumstances where a person purports to offer to supply a psychoactive substance to another person but, in fact, either has no intention of fulfilling his or her side of the deal or intends to pass off some other substance as a psychoactive substance. Subsection (3) ensures that such conduct would still be caught by the offering to supply offence.
	These offences do not apply where the supply or offer to supply is covered by an exemption provided for in Schedule 2 or in regulations made under section 11 (subsection (4)).