A Guide to Cannabis Law in Australia

"Marijuana Use Most Rampant in Australia,” read a New York Times headline in January 2012. Cannabis – marijuana, weed, pot, hash; whichever other name you prefer – remains the most widely used illicit substance in Australia today by a big margin. Approximately 1.9 million Australians aged 14 years and over have used cannabis at least once during the past year; more than a quarter of a million smoke cannabis every day, according to data compiled by the National Cannabis Prevention and Information Centre (NCPIC). Keep in mind, too, that these figures were taken as part of the 2010 National Drug Strategy Household Survey; plenty more users were either unaccounted for, or chose to lie about their drug usage, so the true figures are probably even higher. This reality can be viewed one of two ways, depending on your personal politics.

Either: it’s great that so many Australians enjoy the occasional puff, as its illegality is an arbitrary hangover from conservative generations past, and its negative effects are significantly less serious than those incurred by alcohol abuse or tobacco addiction.

Or: it’s outrageous that so many Australians smoke up, as cannabis is a devil weed whose availability should be pushed further underground lest its psychological and subversive effects further corrupt otherwise sensible citizens.

Illicit drug use is not a topic that attracts moderate views. Weaned on the powerful moralising of media sensationalism, political cowardice, and harsh words from the police force, many Australians are raised to believe that drugs are bad; the province of losers and law-breakers.

Progressive views are slowly prevailing across the Western world, though, as many realise that the Nixon-led ‘war on drugs’ – which celebrated its 40^th anniversary in 2011 – did very little to break the cycle of power, violence and addiction that has forever plagued illicit drug culture. (For a succinct primer on the topic, my brother Stuart McMillen recently published a 40-page comic, ‘War On Drugs’, which outlines why drug prohibition hasn’t worked.)

Immediately following the 2012 Presidential Election results in November, cannabis users worldwide rejoiced at the surprising news that two states in the war-on-drugs heartland, Colorado and Washington, had voted to legalise recreational use under state law. Colorado users will be able to grow up to six plants; in Washington, users will buy from state-licensed providers, and the sale of cannabis will be taxed and regulated, much the same as alcohol and tobacco already is. If you’re over 21, the drug will be legal to sell, smoke and carry – as long as you don’t drive while high.

Australian pot smokers wondered whether they might see a similar decision – if not soon, then at least in their lifetimes. TheVine snooped around on your behalf, with a view to determine Australia’s current cannabis laws on a state-by-state basis and look to its future legal status.

Dr Alex Wodak, president of the Australian Drug Law Reform Foundation, points out that Australian states don't have ballot initiatives like the one that led to the recent weed votes; in fact, most US states don't. “Australia will not see ballot initiatives on taxing and regulating cannabis like Colorado and Washington states,” Wodak tells TheVine. “Our cannabis reforms started in the 1980s in South Australia. We have had two decades of creeping liberalisation of our cannabis laws at the state/territory level. I think this process will accelerate now, but that it will still take a couple of decades before Australia taxes and regulates cannabis in all states and territories.”

Legal weed in Australia? “It's now inevitable,” continues Wodak. “There are so many contradictions and issues undermining cannabis prohibition. Sooner or later, the bosses of one or the other major [political] parties will realise that it is in their interest to get there first. But all social policy reform is slow.”

To illustrate, Wodak points out that 2012 is the 40^th anniversary of South Australia becoming the first state to begin reducing the emphasis on the criminal law in relation to homosexuality. Jailing someone on the basis of the sexuality is a social policy that looks completely abhorrent and archaic nowadays. “I might be wrong,” he says, “but I think taxing and regulating cannabis will be slow to happen in Australia, and we will first go through many stages of watering down our criminal laws.” 

So what is the current state of Australia’s cannabis possession laws? The answers might surprise you. AsThe New York Times put it earlier in 2012: “The prevalence of marijuana use in Australia is widely accepted, if not openly condoned, and at least three states have moved to decriminalise the possession of small quantities for personal use.”

Decriminalised: Australian Capital Territory, Northern Territory and South Australia. Make no mistake, cannabis possession is still illegal in these three states and territories – like it is in the rest of the country – yet adults caught with a ‘small amount’ of pot will have the option to pay a fine or attend a drug assessment program rather than receiving a criminal conviction.

Source: National Cannabis Prevention and Information Centre

The definition of ‘small amount’ varies wildly: in South Australia, the first state to decriminalise minor cannabis offences in 1987, a first-time offender can be found carrying up to 100 grams of plant material, 20 grams of resin, or one (non-hydroponic) cannabis plant, and pay a maximum fine of $150. In the ACT, a ‘small amount’ is up to 25 grams of plant material or two plants, for which you’ll receive a $100 fine. Northern Territory cannabis users can be found with up to 50 grams of plant, 10 grams of resin, 1 gram of oil, 10 grams of seed or 2 plants. The fine is $200. All of these states have a time limit on ‘expiating’, or paying the fine, from 28 to 60 days. If you fail to pay, you may be charged for a criminal offence.

Criminalised: Queensland, New South Wales, Victoria, Tasmania and Western Australia. Cannabis possession in these five states will attract a criminal offence if found guilty. For first-time offenders holding a ‘small amount’ – there’s that phrase again – conviction is unlikely, due to the states’ fondness for education- and treatment-focused ‘diversion programs’, which aim to keep non-violent drug offenders out of prison. (Worth noting: this is the exact opposite of what’s been dubbed the United States’ ‘prison industrial complex’, which was largely born out of Nixon’s ‘war on drugs’.)

The NCPIC points out that police officers are asked to use their professional judgement when deciding whether to ‘divert’ or charge those in possession of pot. This decision might come down to something as simple as your demeanour or attitude upon being stopped by the police.

Put simply: don’t be a dick to cops, because it won’t do you any good. Be polite and courteous, just like your parents taught you, and you’ll likely come out with a caution and/or a date to attend a diversion program. Sure, they’ll confiscate your stash, but that’s a better outcome than being handcuffed.

(To dwell on this point for a moment, it’s well worth reading American author Tucker Max’s detailed guide to dealing with police.  It’s written for an American audience, but many of his points are universal. Key takeaway: “People have this notion that cops have a strict, iron-clad set of legal guidelines they must follow in every circumstance; that’s preposterous. They have a HUGE amount of discretion at the scene. If you didn’t do anything serious and the cop thinks you are a citizen because you treated him with respect and deferred to his power, he has the ability to give you every benefit of the doubt – and most times he will, if for no other reason than to avoid all the monotonous paperwork.”)

Source: National Cannabis Prevention and Information Centre

As with the decriminalised states, ‘small amounts’ vary: up to 10 grams of cannabis in Western Australia, 15 grams in New South Wales, and 50 grams in Tasmania, Victoria and Queensland. Offenders may also be cautioned multiple times in some states; three times in ten years for Tasmanians, though only once in QLD and WA. Queensland police must offer diversion to minor cannabis offenders; this is a point of difference from other state police officers, who use their own judgement as to whether or not to offer diversion or to charge the offender. (Worth noting for TheVine’s younger readers: those aged under 18 years are ineligible for the state drug diversion programs, as are those with history of drug offences.)

For more detailed information concerning all of the intricacies surrounding cannabis possession in Australia, the NCPIC has a detailed and up-to-date fact-sheet on their website.

Trafficable quantities of cannabis vary state-by-state, too. Northern Territory has the lowest threshold for cannabis leaf, at 50 grams; in SA and WA, it’s 100 grams; 250g in Victoria; 300g in ACT and NSW; 500g in Queensland, and a whopping 1000g (1kg) in Tasmania.

The number of plants required to constitute a potential trafficking offence range from five (in NSW and NT) to 20 in Tasmania; the remaining states require ten plants, though in Queensland it’s measured in terms of aggregate weight up to 500 grams; theoretically, this could include a hundred cannabis plants weighing five grams each. Oil and resin quantities vary; see the below table, taken from a 2010 report compiled by theDrug Policy Modelling Program at UNSW.

Source: UNSW Drug Policy Modelling Program, 2010

How many Australians are actually charged with cannabis possession and/or trafficking? The numbers are on the rise: according to the Australian Crime Commission (ACC)’s 2010-11 illicit drug data report, cannabis arrests accounted for over two-thirds of illicit drug related arrests in Australia.

 “The number of national cannabis arrests are currently the highest reported in the last decade, increasing from 57,170 in 2009–10, to 58,760 in 2010–11,” the report notes. “‘Consumer’ (as opposed to ‘provider’) arrests accounted for 87 per cent of national cannabis arrests in 2010–11. Cannabis is the main illicit drug seized in Australia, accounting for 72% of the total number and 58% of the total weight of national illicit drug seizures in 2010–11.” Despite the increase in seizures, the overall weight of seized cannabis decreased slightly, from 5,989 kilograms in 2009–10 to 5,452 kilograms in 2010–11 – see the below graph for comparison. (The ACC report also includes a state-by-state breakdown of arrests and seizures; in 2010-11, Queensland topped both.)

Image source: ACC illicit drug data report 2010-11

Clearly, Australians love smoking weed. It's been estimated that the turnover of the Australian cannabis industry is about twice the size of our wine industry. (The estimate was made by University of Western Australia economists Kenneth W Clements and Mert Daryal, in their 1999 paper The Economics of Marijuana Consumption)

“Cannabis wouldn't be used by almost two million Australians every year if they didn’t think there were some benefits for them in using the drug,” says Dr Alex Wodak. “No one is putting a gun to their head. I assume they like getting relaxed and comfortable, and like getting that way with cannabis. It isn't harmless, but the harms are minimal compared to (legal) alcohol and tobacco.” Tobacco accounts for 7.8% of the nation’s disease burden; alcohol for 2.3%, all illicit drugs for 2% and cannabis accounts for 0.2% (ie. one tenth of all illicit drugs). These figures are quoted from the Australian Institute of Health and Welfare’s 2003 report on burden of disease and injury.

According to Wodak, most of the drug’s adverse health consequences are wilfully talked up to help maintain cannabis prohibition. “Yet we ignore the very harmful effects of cannabis prohibition,” he continues. “Its cost (no-one knows); its ineffectiveness (of Australian drug users in 2011, 94% found hydro cannabis and 76% found bush cannabis ‘easy’ or ‘very easy’ to obtain); its tendency to corrupt large numbers of police and who-knows-what other public officials); and the damage it does to so-called ‘cannabis offenders’ (harm to personal relationships, jobs, travel, accommodation, and so on).”    

Despite the work of organisations such as the Australian Drug Law Reform Foundation, legal cannabis in Australia remains out of reach for the time being. Though it’s decriminalised in three states, it’s still a long way from regulation a la Colorado and Washington.

“It will be very interesting to watch what happens in Washington State and Colorado,” says Dr Monica Barratt of the National Drug Research Institute (NDRI). “Their experiences will help shape our understanding of the consequences of moving from prohibition to regulation, and how different countries can optimise the system so it produces less overall harm.” Barratt says that the NDRI is working toward the latter aim through its anonymous survey of cannabis growers, ‘World Wide Weed’; Fairfax Media, publisher of TheVine.com.au, is also currently co-sponsoring a Global Drug Survey.

 “The next questions for Colorado and Washington State are: what will the US federal government do about this, and how will the new laws be implemented?” says Barratt. “If other states in the US also take this action, and especially if the federal US administration changes their approach to cannabis, then I think it is more likely that Australian law may change in the long term. Conversely, if the federal US administration remains firm on cannabis prohibition, I doubt Australia would move. In the short term, I don’t expect any cannabis law reforms supported federally, as I see us living in a fairly conservative era on these issues.”

Disclaimer: this article is provided for educational purposes only. None of the information here is intended to be taken as legal advice applicable to your location or situation. If in doubt, call a lawyer, not TheVine.

TheVine.com.au

6 December 2012