Cannabis (herbaceous plant) Use and Possession is Illegal All Over Australia, But Penalties Vary Greatly From State to State ...
October 2016
Drug laws in Australia are guided by both state and federal legislation and can be complex and technical with many things to be considered. Added to the complex aspects surrounding drug laws is the fact in some instances the onus of proof is reversed, requiring the defendant to prove their innocence. Offences involving drugs and illicit substances can attract significant penalties in Australia that can result in a lengthy period in jail for anyone found guilty. The laws surrounding drug offences can involve:
- use of drugs
- possession of drugs
- cultivation and manufacturing of drugs and plants (Cannabis, opium)
- supply and trafficking
- conspiracy
- possession of implements or equipment to manufacture drugs
Taking a look at laws on Cannabis use in each state and territory, some offer diversion programs despite Cannabis use being a criminal offence. Usually, diversion is only available to non-violent offenders.
AUSTRALIAN CAPITAL TERRITORY
The Simple Cannabis Offence Notice Scheme (SCON) allows for a person to possess up to 50 grams of dried Cannabis, OR one or two Cannabis plants (excluding all hydroponically or artificially cultivated Cannabis plants) for personal use only. If a given fine is paid within 60 days, no criminal record will be registered. It must be remembered, possession of any amount of Cannabis is NOT legal. Penalties start at $100.00 fines for simple Cannabis offences and range up to $250,000.00 fines and life imprisonment for more serious Cannabis offences. Police have discretion whether to issue a SCON or charge an offender with a criminal offence.
NEW SOUTH WALES
It is against the law to possess, use, grow, import or sell Cannabis, Cannabis resin (hash) or hash oil. Any Cannabis offence is a criminal offence in one of the toughest states on drug use. However, in 2000, government introduced the Cannabis Cautioning Scheme. Offenders with up to 15 grams of Cannabis may be cautioned by police even though Cannabis is not legal nor decriminalised. Police have discretion to issue a caution but at all times retain the option of charging people. A caution is a warning of purported health and possible legal consequences of using Cannabis and information on where to seek supposed treatment and/or advice (‘reefer madness’ hotline). An offender can be cautioned twice before charges are laid. If found guilty of possessing or using Cannabis, you could get fined up to $2,200.00, and/or other penalties including community service or a term in prison of up to 2 years. Penalties apply to adults and young people, 10 to 18 years. For growing, importing or selling Cannabis, penalties are more severe; depending on the amount, if it was being sold and prior convictions. You may get a criminal record if you are found guilty of possessing, selling or growing Cannabis which makes it hard to get a job, credit card, or a visa to travel.
NORTHERN TERRITORY
The Justice Legislation Amendment (Drug Offences) Act 2016 came into effect in June. Under the Act you could be charged for possessing, administering, supplying or manufacturing a prohibited drug (listed in the schedules to the Misuse of Drugs Act). If police suspect prohibited drugs they can search you or your car without a warrant. For minor drug offences you may be dealt with by caution or other diversionary scheme. Adults found in possession of up to 50 grams of Cannabis, one gram of hash oil, 10 grams of hash, Cannabis seed or two non-hydroponic plants are likely to be fined $200.00 and given 28 days to pay. Drug diversion programs are available to adults through an Infringement Notice system; for young people, there is a warning or cautioning system and all diversion options allow relevant drug offences to be finalised without court and a criminal record (Youth Justice Act). Several new drug offences were introduced, including:
- aggravated offence, manufacturing or cultivating a dangerous drug in the presence of a child;
- aggravated offence, procuring a child under age 14 to commit a drug offence, maximum penalty is life imprisonment;
- aggravated offence, possessing a firearm, ammunition or weapons while committing a drug offence, the court must impose a minimum term of imprisonment, except in very limited circumstances;
- supplying and displaying drug paraphernalia attracts a maximum penalty of between 100 and 200 penalty units or one to two years in prison; and,
- theft of a dangerous drug attracts a maximum penalty of between seven and 14 years in prison.
Those convicted of drug offences where children are involved must now serve seventy percent of their prison sentence as a minimum.
QUEENSLAND
Even though possession and use of Cannabis is a criminal offence, offenders caught with up to 50 grams must be first offered a drug diversion program. The Police Drug Diversion Program (PDDP) enables those apprehended for a minor drug offence with an opportunity to attend and complete a Drug Diversion Assessment Program (DDAP) instead of court. Most drug offences involve possession of small amounts of Cannabis and the PDDP offers people apprehended with an opportunity to receive purported professional help through early intervention and prevention, to address drug use, before proceeding through the court process and possibly incurring a criminal record. The PPDP is funded by the Commonwealth’s National Drug Strategy. Possession or supply of a dangerous drug carries a maximum penalty of 3 years imprisonment if dealt with in the Magistrate’s Court. More serious offences, dealt with in the District or Supreme Court, carry maximum penalties of between 15 and 25 years for possession, life in prison for supply (depending on the type and quantity of drug) and any aggravating factors (the person who received the drug is a minor, intellectually impaired, or in a school or correctional facility). Trafficking in dangerous drugs is perhaps the most serious and punishable by up to 25 years imprisonment (depending on type of drug trafficked). It is most common for people convicted of trafficking to be sentenced to a term of full-time custody, even for a first offence. If convicted and sent to jail, you will likely be required to serve eighty percent of your sentence before being considered for parole. If you or a family member has been charged with trafficking, it is essential you obtain legal representation. Other possible penalties include:
- Imprisonment
- Intensive Corrections Order
- Probation
- Community Service Orders (CSO)
- Recognisance
- Fines
- Section 19 order
SOUTH AUSTRALIA
Decriminalised minor Cannabis offences in 1987 (the first Australian state to do so). A simple Cannabis offence applies to;
– possessing up to 100 grams Cannabis, or
– 20 grams Cannabis (hash) resin, or
– smoking Cannabis in private, or
– possessing equipment (e.g., pipes, bongs) or
– cultivating not more than one non-hydroponic plant.
– 20 grams Cannabis (hash) resin, or
– smoking Cannabis in private, or
– possessing equipment (e.g., pipes, bongs) or
– cultivating not more than one non-hydroponic plant.
Where a person commits a simple Cannabis offence the police have discretion to issue a Cannabis Expiation Notice. This requires payment of a fine and avoids prosecution in court. The Notice must be given to the alleged offender stating the offence may be expiated by payment of the fee before 28 days from date of notice. Where the offence is expiated (fee paid within time) no prosecution shall proceed. Payment of an expiation fee will not be regarded as an admission of guilt. Where a person is found guilty of cultivating between 2-5 plants, the maximum penalty is $1,000.00 and/or 6 months imprisonment. When the number of plants is over 5 but under 10, the maximum penalty is 2 years imprisonment and/or a fine of $2,000.00 If you are able to prove plants were for personal use or supply and not sale, regardless of the number, this penalty will also apply.
TASMANIA
Offenders found with up to 50 grams of Cannabis can be cautioned three times in ten years, with different procedures at each caution. Information and referral is provided on the first caution, intervention is implemented with the second, and on the third and final caution, the offender is assessed for dependence and sent for supposed intervention or treatment. The laws relating to the regulation of drugs and associated offences are contained in thePoisons Act 1971, the Criminal Code Act 1924 and the Misuse of Drugs Act 2001. These Acts specify different categories to which different rules and penalties apply. The categories include controlled plants, which includes Cannabis. The laws provide maximum penalties for offences, however, actual penalties will depend upon quantity and type of drug involved and the criminal record and personal circumstances of the person who commits the offence. A number of different drug offences apply to the manufacture and cultivation of illegal drugs. Cultivating a controlled plant, maximum penalty of $7,700 and/or 2 years in prison. If the plant is grown for sale, the possible penalty increases to 21 years in prison. Possession of equipment, instruction or thing for use in manufacture of a controlled substance or for cultivation of a controlled plant carries a maximum penalty of imprisonment for 21 years. Possession doesn’t just mean in someone’s personal possession; it includes where it is, on land or premises occupied, used by, or available to, a person, unless they prove they did not know it was there. It can include places like a car, a bag, a room or a locker. You can be charged if someone else’s Cannabis is found in your house if you’re aware it’s there. The maximum penalty is $7,700 or 2 years in prison. It is an offence to possess pipes or other utensils for use in preparing, smoking, inhaling, administering or taking illegal drugs. The maximum penalty is $7,700. The maximum penalty for possession, smoking or use of a controlled plant is $7,770, 2 years imprisonment, or both.
VICTORIA
Possession is one of the most common Cannabis offences and is defined as having Cannabis on you, in a car you own or you are driving, or in a house or property you occupy, including growing anywhere on the premises. Cannabis is deemed to be a drug of dependence and if caught with a small quantity, and it is your first offence, you will usually get a warning (caution) instead of being charged. Under the cautioning system, offenders are formally cautioned at a police station and referred to compulsory counselling at a drug treatment centre. Failure to attend counselling might result in charges being laid. For the police to prove a charge of possession in court, you must have known Cannabis was there and have intended to possess it. Quantities of Cannabis are defined as:
- small – up to 50 grams
- traffickable – 250 grams or over, or 10 plants
- commercial – 25 kilograms or over, or 100 plants
- large commercial – 250 kilograms or more, or 1000 plants
If police charge you with possession they may also charge you with use, includes smoking, inhaling fumes or swallowing. Police can charge you if they saw you using or trying to use Cannabis and if they did not see you using but you admitted to using. You have three options at court:
- admit to charge/s and ask for diversion. If you follow conditions of your Diversion program, police drop the charge/s and find no guilt; no criminal record. A diversion plan usually goes for a year.
- plead guilty
- plead not guilty
WESTERN AUSTRALIA
Possession and use of Cannabis is illegal, but if a person is found by police to be in possession of:
- 10 grams or less of Cannabis (or Cannabis seeds) for personal use and or;
- A smoking implement with traces of Cannabis,
the police may issue a Cannabis Intervention Requirement (CIR). The CIR can be resolved by completing a Cannabis Intervention Session (CIS) within 28 days. Approved counsellors conduct sessions that aim to increase awareness of laws and purported health effects relating to Cannabis. If a person fails to attend, the alleged offence will be prosecuted. The Cannabis Intervention Requirement Scheme applies to anyone aged 14 years and over and is legislated under the Misuse of Drugs Act and the Young Offender’s Act. Adult All Drug Diversion is an initiative of the WA Diversion Program and provides assessment and treatment for adults and juveniles for simple possession of illicit drugs. There is emphasis on positive action (not necessarily prosecution) including diversion from the judicial system and referral to treatment services.
