Eight million Australians (31% of the population) use an illicit drug in their lifetime. Most don’t run into trouble. But only half the number of Australians who need and want treatment get it. Governments spend a great deal of money responding to illicit drug use with prevention programs, treatment programs and purported harm-reduction services; the humane face of drugs policies. But in Australia, as in other Western nations like the United States, Britain, Germany and Sweden, the lion’s share of funding, over 60%, is spent on law enforcement. While law enforcement focuses on disrupting supply chains, protecting borders and controlling access to precursor chemicals, probably too much effort is spent on arresting people who use drugs.
At the end of January 2017, Sydney’s senior law enforcement agency made the admission they had lost the “War on Drugs”. The revelation came that organised crime in New South Wales (NSW) was out of control and anti-drug agencies were failing dismally to stem the tsunami of illicit substances. The revelation 607 drug lords were operating in Sydney and law enforcement were unable to track them followed a report by the NSW Crime Commission which found the rise of public enemies was “almost entirely driven by the prohibited drugs market. Organised crime in this state and the rest of the country is out of control and cannot be stopped without a radical change”, NSW Crime Commission.
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 that can result in a lengthy period in jail for anyone found guilty. The laws surrounding drug offences involve:
⇒ cultivation and manufacturing
⇒ supply and trafficking
⇒ possession of implements or equipment to manufacture
⇒ driving under the influence of
Personal Cannabis use and possession is illegal right across Australia and penalties vary greatly from state to state and territory. So what do the laws say about use, possession and drug-driving in Australia? Taking a look at laws on Cannabis use in each state and territory, some offer diversion programs despite Cannabis use being a criminal offence as diversion is usually only available to non-violent offenders. There is a zero tolerance for drugs in a person’s system when driving and it is an offence to drive a vehicle in Australia under the influence of drugs.
Most drivers would have undergone a breathalyser test, police now can administer a drug test. All states and territories have laws making it an offence to operate a vehicle while on drugs. The testing regime is highly discriminatory, however, not testing for cocaine and benzodiazepines, both of which are complicit in fatalities on Australian roads, just behind alcohol. If the testing regime was truly based on making our roads safer, police would be testing for cocaine, benzo’s and a whole raft of pharmaceuticals, not Cannabis, which stays in the adipose (fat) cells for the longest of all illicit substances, making Cannabis users easy targets.
AUSTRALIAN CAPITAL TERRITORY
With Cannabis in the ACT, it is illegal to:
⇒ administer to someone else,
⇒ possess any quantity of,
⇒ cultivate or be involved in cultivating, or
⇒ sell or supply any quantity.
Penalties range from $100-$250,000 fines and life imprisonment. The severity of penalties for drug use or possession is ultimately at the discretion of court. The Drugs of Dependence Act 1989 (DoDA) was amended to reduce the number of Cannabis plants which can be dealt with by way of a Simple Cannabis Offence Notice (SCON) from five to two and exclusion of all hydroponically or artificially cultivated plants from the scheme.
The SCON scheme allows for possession up to 50 grams (g) of dried Cannabis, or two Cannabis plants (excluding hydroponically or artificially cultivated), where it is deemed to be for personal use only, they can be issued a penalty order fine. If the fine is paid within 60 days, no criminal record. Failure to pay the penalty order may result in criminal proceedings. Possession of any amount of Cannabis in the ACT is NOT legal it is only decriminalised. The decision was made to exclude hydroponically grown Cannabis plants from the SCON scheme as the trend towards hydroponic methods of Cannabis cultivation indicates quantities of Cannabis able to be produced and potential potency are no longer in line with the original intentions of the scheme. Police have discretion to issue a SCON or charge an offender with a criminal offence.
Drug Driving – Random Roadside Drug Testing (RRDT) commenced in May 2011. RRDT is a three step process before being charged with an offence. The first two steps are undertaken roadside. First an oral test, followed immediately by a ‘preliminary oral fluid analysis’ using an instrument called a Drug Detection System. If unable to provide a saliva swab, a blood test may be used. A third ‘confirmative’ positive laboratory test is required before a driver is charged; this is conducted by the ACT Government Analytical Laboratory (ACTGAL). Drug drivers will be required to appear before court, similar to those who ‘drink and drive’. A first offence can lead to a fine up to $1,500. For repeat offenders; a fine up to $3,750, three months imprisonment, or both can be imposed. An offending driver can also face loss of licence for a period specified by the court. For more information on alcohol and drug impaired driving refer to the ACT Road Users Handbook.
NEW SOUTH WALES
The Cannabis Cautioning Scheme provides formal cautioning of adult offenders detected for minor Cannabis offences. The Scheme uses police intervention to assist offenders to consider legal and health ramifications of use and seek treatment and support. The Scheme has been in place since 2000 and was developed in response to a NSW Drug Summit finding that arresting people for minor drug offences is not always an effective response. Police can exercise discretion in appropriate cases and issue a caution. A person can only be cautioned twice and cannot be cautioned at all if they have prior convictions for drug offences or offences of violence or sexual assault. The Scheme does not apply to those caught supplying Cannabis and drug dealers continue to be arrested and prosecuted under the Drug Misuse and Trafficking Act 1985.
The formal NSW Police Force caution notice provides contact telephone numbers for the Alcohol and Drug Information Service (ADIS) which provides a dedicated, confidential service to a cautioned offender that includes information about treatment, counselling and support services. People who receive a second and final caution are required to contact ADIS for a mandatory education session about their Cannabis use. Penalties apply to adults and young people, 10 to 18 years. For growing, importing or selling Cannabis, penalties are more severe; depending on amount, if it was being sold and prior convictions. You may get a criminal record if found guilty of possessing, selling or growing Cannabis, which makes it hard to get a job, credit card, or travel visa. As drug possession is a summary offence, it comes with a maximum penalty of a $2,200 fine or two years’ in prison. Other penalties may include:
⇒ Jail, a penalty of last resort, when court is satisfied no other penalty is appropriate.
⇒ Home detention, strictly supervised and electronically monitored.
⇒ Suspended sentence (Section 12) upon entering into a good behaviour bond. Only available for sentences of imprisonment of less than 2 years.
⇒ Community Service Order (CSO), unpaid work or a course like Anger Management.
⇒ Good behaviour bond, order requires you be of good behaviour for a specified period. Court can impose conditions to obey during the term. Maximum is 5 years.
By far the most common penalty imposed by court is a fine. When deciding the amount of any fine a magistrate or judge should consider your financial situation and ability to pay. A magistrate or judge that sets the fine will tell you that you have 28 days to pay. This is the maximum time they can set. However, the Court Registry is likely to give you more time to pay if you cannot pay within that time.
Drug Driving – Mobile Drug Testing (MDT) operates alongside Random Breath testing (RBT) for alcohol and police have the power to test drivers they believe may be under the influence of illegal or prescription drugs. Drug driving is an offence and if charged it means you have been found or are suspected of driving with an illicit substance in your oral fluid, blood or urine. Pleading not guilty to a drug driving charge means it is up to the prosecution to prove you were driving with drugs in your system. If you are sure you were not, plead not guilty and defend the matter in court. The drug tests used by police are notoriously unreliable and can show positive days after an alleged offender has taken drugs and there are certain procedures police must undergo when testing a person. If you can show they have gone against procedure when obtaining evidence, you could have charges withdrawn.
If you decide to plead guilty to a charge of drug driving, Court has the discretion not to convict. ‘Section 10’ (s10) refers to section 10 of the Crimes (Sentencing Procedure) Act 1999 which allows a Court that finds you guilty of an offence to discharge you without recording a conviction, and because there is no conviction, there is no criminal record. Drug driving is a criminal offence and comes with a criminal conviction. The maximum penalty for a first drug driving offence is $1,100 fine and disqualification from driving for three to six months (automatic disqualification is six months). For second or subsequent offence, penalties increase to $2,200 and a six-month to unlimited disqualification. Other penalties for a drug driving conviction include Good behaviour bonds and Community service orders. Penalties, particularly the disqualification period, can be decreased at a magistrate’s or judge’s discretion.
‘Drug’ offences in the NT are covered under the Misuse of Drugs Act and the Youth Justice Act. Legislation relating to drug offences was amended by the Justice Legislation amendment (Drug Offences) Act 2016. The new provisions came into effect 8 June 2016. Drug offences under the Act mean you could be charged for possessing, administering, supplying or manufacturing a prohibited drug. The drugs prohibited are listed in the schedules to the Misuse of Drugs Act. For some minor drug offences, you may be dealt with using cautions or other diversionary schemes.
One of the primary drug diversion programs in the NT occurs through the issuing of an Infringement Notice. If a police officer believes a prescribed drug offence has been committed by an adult, they may serve them with an Infringement Notice. It may be served by: handing it to them, posting it to them, or leaving it at their home or work address. If the amount set out in the infringement notice is paid within the time specified in the notice (28 days), no further action will be taken – the person is taken to have ‘expiated’ the offence and can’t be again charged for this particular offence in the future.
It’s an offence in the NT to possess, supply or manufacture a prohibited drug. Under 18 and commit a crime connected to drug use (including alcohol), the police can send you to counselling or drug and alcohol abuse programs. A pre-court youth diversion program may be an option for young people, 10-17 years instead of court. A young person can participate in a diversion program twice. If they break the law a third time they will have to go to Children’s Court unless there are exceptional circumstances.
Drug-driving – Police have the power to test drivers to see if they are driving under the influence of drugs. If police reasonably suspect you have prohibited drugs, they can search you or your car without a warrant. Police can direct you to submit to a saliva or blood test if:
⇒ you are pulled over to submit to an alcohol breath test
⇒ you are pulled over for a random saliva test for drugs
⇒ officer believes you are driving under influence of alcohol or a drug
⇒ officer reasonably suspects you have been involved in a crash.
A second offence for drug driving is when you have in the past been found guilty of:
⇒ driving under the influence of alcohol
⇒ driving under the influence of a prohibited drug
⇒ failing to submit a saliva test
⇒ failing to submit a blood or breath test for analysis.
|Prohibited drug in body||Minimum licence disqualification||Maximum fine amount||Maximum term of imprisonment|
|First offence||N/A||$400 traffic infringement notice or Court ordered fine – 5 penalty units||3 months|
|Second offence||3 months||$400 traffic infringement notice or Court ordered fine – 7.5 penalty units||6 months|
|Subsequent offence||6 months||$400 traffic infringement notice or Court ordered fine – 7.5 penalty units||6 months|
Cannabis is classified as a ‘schedule 2 dangerous drug’ under the Drugs Misuse Regulation 1987. Sentencing of offenders is governed by the Penalties & Sentences Act 1992 which sets out the types of penalties to be imposed. Possession of a dangerous drug carries a maximum penalty of 3 years in prison if dealt with in the Magistrate’s Court. More serious offences will be dealt with in the District or Supreme Court, pursuant to Section 9 of the Drugs Misuse Act 1989. The maximum penalty for possessing Cannabis depends on the quantity possessed. If you are guilty of possessing under 50 g and it is your first drug offence, you might be eligible for a drug diversion order.
The Police Drug Diversion Program (PDDP) enables police to offer eligible persons, apprehended for a minor drugs offence, with an opportunity to attend and complete a Drug Diversion Assessment Program (DDAP) instead of having to go through court. The PDDP does not decriminalise nor legalise possession or use of Cannabis. The PPDP is a Queensland Illicit Drug Diversion Initiative (QIDDI) funded by Commonwealth National Drug Strategy.
The term ‘possess’ is very broadly defined, including having dangerous drugs on your person and extends to having control of drugs, such as in a car you are driving or a bag that belongs to you. There are two quantity ranges under the Drugs Misuse Act and Regulations which apply to possession:
|Less than 500 g, or 100 plants||15 years imprisonment|
|More than 500g, or 100 plants||20 years imprisonment|
Other possible penalties include:
It is illegal to supply a dangerous drug pursuant to section 6 of the Drugs Misuse Act. The maximum penalty for supplying Cannabis depends on the nature of the supply:
|Type of Supply||Maximum Penalty|
|Supply to a child under 16||25 years imprisonment|
|Aggravated Supply||20 years imprisonment|
|Supply in any other case||15 years imprisonment|
It is illegal to produce dangerous drugs pursuant to section 8 of the Drugs Misuse Act. The maximum penalty for producing Cannabis depends on quantity produced. There are two quantity ranges under the Regulations which apply to Cannabis:
|Less than 500 g or 100 plants||15 years imprisonment|
|Over 500g or 100 plants||20 years imprisonment|
A sentence of imprisonment is not inevitable, but one should be expected in most cases if you are guilty of producing Cannabis. Fines are expressed as a value in penalty units which increases by 3.5% on 1 July every year, unless the Attorney-General stipulates otherwise or if there is a change in legislation.
There are two ways in which a person can avoid a criminal conviction. The first is an order under Section 19 (s19) of the Penalties & Sentences Act 1992 and the second is if the court simply declines to record a conviction pursuant to Section 12 of that same Act. A s19 order discharges a person absolutely without recording a conviction, a nominal punishment reserved for offences which a court is persuaded do not deserve anything more. Court has general discretion to record, or not record, a conviction. This power is contained in Section 12 (s12) of the Penalties and Sentences Act 1992. Court can impose a fine without recording a conviction where it considers a person ought to be punished but not have a criminal conviction recorded.
Drug Driving – The State Government passed legislation under the Transport Operations (Road Use Management) Act 1995 and the Criminal Code Act 1899 to purportedly combat rising road fatality statistics. The Act provides for two types of drug driving offences. The first is treated the same as high range drink driving but, instead of having to prove a driver has more than a prescribed concentration of a drug in their system, the police simply need to establish the person is under the influence. The second offence is less serious and does not require police to establish a person was actually under the influence, simply that a drug was present in their blood or saliva.
When dealing with your charge of driving under the influence of a drug, a magistrate may disqualify you from driving for up to 6 months, fine you up to $3,413, or impose a maximum term of imprisonment up to 9 months. A second, or subsequent offence within 5 years carries a maximum penalty of 18 months in prison and/or a 60 penalty unit fine. For a third and subsequent offence within 5 years of the first, the law requires a sentence which includes imprisonment. When dealing with your charge of driving with a relevant drug present, a magistrate may disqualify you from driving for 1-9 months, fine you up to $1,706 or impose a maximum term of imprisonment up to 3 months.
Conviction of a person for driving while a drug is present in their blood or saliva requires disqualification from holding or obtaining a drivers licence for a minimum of three months for a second offence and third and subsequent offences attract an automatic six month disqualification. In addition, anyone who pleads or is found guilty in the Magistrates Court must pay the Offender Levy.
If you test positive for drugs, your licence will be suspended for 24 hours. If then charged with driving with a relevant drug present and you have no pending drug driving charges, your licence will remain valid until court, is withdrawn or otherwise discontinued. However, if charged with driving with a relevant drug present and have pending drug driving charges, your licence will be suspended immediately until court. If you fail to provide a specimen of saliva for testing, you may be fined up to $4,876 or sentenced to a maximum term of imprisonment up to 6 months. You may also be liable for the same penalties as if you were charged with the offence of driving under the influence of drugs.
Decriminalised minor Cannabis offences in 1987 (the first Australian state to do so). A simple Cannabis offence applies to;
⇒ possessing up to 100 g, or
⇒ 20 g hash, resin, or
⇒ smoking 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, police have discretion to issue a Cannabis Expiation Notice. This requires payment of a fine and avoids prosecution. 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.
|Cannabis Expiation Fees 2014|
|Less than 25 g||$150.00|
|Between 25-100 g||$300.00|
|Less than 5 g resin||$150.00|
|Between 5-20 g resin||$300.00|
|For smoking or consumption in private||$150.00|
|Pipes or other equipment (not commercial)||$150.00|
|Pipes or other equipment (if other offences)||$30.00|
|Non-commercial cultivation (1 plant not hydroponic)||$300.00|
(Expiation fees set out in Schedule 5 Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014)
Drug Driving – Offences are dealt with under the Road Traffic Act 1961. Drivers and riders can be stopped at random by police and includes a passenger acting as a qualified supervising driver for a learner driver. Drivers impaired by prescription or illicit drugs will be prosecuted under section 47 of the Road Traffic Act for the offence of driving under the influence of an intoxicating liquor or drug – commonly referred to as ‘DUI’.
It is an offence to refuse or to fail to comply with, a request for a drug screening test, oral fluid analysis or blood test. Penalties applicable to drivers who commit drug driving offences may include heavy fines, licence disqualification, demerit points, wheel clamping, impounding or forfeiture of a vehicle and even imprisonment in some cases. The current penalty system uses graduated fines and licence sanctions depending on whether it is a person’s first, second or third offence. Refer to the MyLicence website for more information on drink and drug driving penalties.
You can be charged with driving with Cannabis (THC), as provided under the Road Traffic (Miscellaneous) Regulations 2014, present and penalties vary depending on how many times you have committed the offence:
⇒ First Offence – Fine $900-$1,300, disqualification 3 months
⇒ Second Offence – Fine $1,100-$1,600, disqualification 6 months
⇒ Third Offence – Fine $1,500-$2,200, disqualification 12 months
⇒ Further Offence – Fine $1,500-$2,200, disqualification 2 years
The more serious offence of driving under the influence (DUI) makes it an offence for a person to attempt to drive a vehicle after taking a drug that impaired their ability to drive safely. A motorist will generally be considered to be driving under the influence of a drug if the person’s mental or physical abilities appear to be compromised. Penalties for this offence:
⇒ First Offence – Fine $1,100-$1,600, 12 month disqualification or 3 months prison.
⇒ Further Offence – Fine $1,900-$2,900, 3 year disqualification or 6 months prison.
In August 2017, the South Australian Legislative Council voted in favour of an amendment to drug driving legislation that would provide medicinal Cannabis users with a defence if they fail a roadside drug test. The Statutes Amendment (Drink and Drug Driving) Bill 2017 was introduced into parliament in May this year. Section 47AB of the bill states, “for a drug driving offence involving THC, it is a defence if the defendant proves” they have a condition or disability requiring an approved ‘medicinal Cannabis product’ and they have a medical certificate that states they’re fit to drive whilst using it. The amendment was put forth by South Australian Dignity Party MLC Kelly Vincent and supported by the Liberal opposition, Greens MP’s and Independent MLC John Darley.
However, on 25 September, 2017, new Road Safety Minister Chris Picton announced he would move to ban medicinal Cannabis users from driving with the ‘drug’ in their system. The Opposition and crossbench MP’s had joined forces in Parliament to allow users to seek approval of a doctor to defend any drug-driving charges if they were tested by police and brought to court. Mr Picton said this created a “risky” loophole and he would move to reverse the rule. “The very clear advice we have from SA Health (and) the Australian Medical Association is that a doctor won’t be able to confidently say to somebody ‘This is safe to use in a driving situation’” he said. “I don’t see how we could support a law that allows some people to get behind the wheel of a car … and put people at risk”.
Offenders found with up to 50 g 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.
Informal caution – available where you admit to committing the offence and police form the opinion the offence is relatively minor and does not warrant formal action.
Formal caution – available where you admit to committing the offence and police form the opinion more formal action is warranted. Police may require you be formally cautioned, or attend a community conference or be subject of an official complaint to court. You may be ordered to pay restitution or compensation, perform community service, apologise or anything else appropriate in the circumstances. This might include a health diversion that requires counselling, support and treatment services.
Community conference order – a meeting between offender and victim to discuss impact of the offence and work out an outcome. The meeting is attended by a facilitator, a police officer and anyone else invited by the facilitator. This is rare for drug offences.
The laws relating to the regulation of drugs and associated offences are contained in the Poisons 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. It is an offence to possess Cannabis, to smoke, supply to others, or possess pipes or other items for use in connection with preparation or smoking of Cannabis, or supply or preparation of the ‘drug’. The Act does not have different penalties for individual drugs, a penalty is provided for particular acts related to a specific category as defined in the Misuse of Drugs Act. There are also a number of property-related offences involving Cannabis and other drugs.
Under the Poisons Act (s83B), if a person owns or occupies premises, it is an offence to be used for, or in connection with, the unlawful growing, manufacture, preparation, sale, distribution, trafficking, use, or administration of a raw narcotic, narcotic substance, prohibited plant or prohibited substance. It is an offence to possess a pipe for smoking Cannabis. 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, bag, room or 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.
Drug Driving – Offences include: refusing to provide a sample, driving under the influence of drugs, or driving with a prescribed illicit drug in your blood. Police have the power to randomly stop drivers and take a saliva swab to test for drugs. The test is done in two parts. The first test, if positive, will be sent away to a lab for a second test. It’s important to know the offence of driving under the influence of drugs is not decided by the amount you have in your system – it is ANY in your system. This means if you have taken drugs several days earlier your test could show positive. The Registrar of Motor Vehicles can suspend, cancel or vary a driver’s licence for the following reasons:
⇒ non-compliance with requirements of a law in force in the jurisdiction in which they were last disqualified relating to alcohol or drug-related offences
⇒ non-compliance with penalty imposed by court in any jurisdiction for an offence related to operating a vehicle
⇒ convicted in another jurisdiction or country of an offence if committed in Tasmania would have resulted in disqualification, suspension or cancellation of licence
⇒ failed to comply with a licence condition.
Possession is one of the most common Cannabis offences and is defined as having Cannabis on you, in a car you own or 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’s 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 g
⇒ traffickable – 250 g or over, or 10 plants
⇒ commercial – 25 kilograms (kg) or over, or 100 plants
⇒ large commercial – 250 kg or more, or 1,000 plants
If police charge you with possession they may also charge you with use; smoking, inhaling 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.
If you are found guilty a magistrate may give you a fine, depending on the amount you plead guilty to possessing. If you plead guilty to possessing up to 50 g a magistrate could fine you up to five penalty units. The rate for penalty units is indexed each financial year and raised in line with inflation. Cultivation is the offence of growing ‘narcotic’ plants; Cannabis, opium or coca. The maximum penalty depends on whether you are found guilty of trafficking too, and these are indictable offences. Cannabis and opium are most commonly involved in the offence of cultivation. For personal use (<10 plants) – punishable by fine and/or imprisonment up to 1 year. Cultivation for sale – punishable by fine and/or imprisonment up to 15 years. Cultivation of more than 100 plants – imprisonment of 25 years, and larger grow operations can be punished by life. The offence of trafficking generally means selling. Manufacturing, possessing and offering for sale and certain other drug-related activities are punished as trafficking. In addition to a fine, trafficking offences are punishable by maximum sentences of imprisonment 15, 20 or 25 years to life.
Drug Driving – It is an offence to use Cannabis (and other illicit and licit substances) and drive a motor vehicle. There are three offences:
⇒ driving or in charge of a motor vehicle while ‘under the influence’ of Cannabis to an extent as to be incapable of having proper control (s.49(1)(a) Road Safety Act 1986). Difficult to prove, technical yet vague and new laws were introduced to make it easier to detect and prosecute drivers. Mandatory minimum period of licence disqualification is 2 years for a first offence, 4 years for a second offence.
⇒ driving or being in charge of a vehicle while impaired by Cannabis (s.49(1)(ba) Road Safety Act). When police find a driver who appears to be affected but yields a negative preliminary test they may require the driver to undergo a drug assessment test, involving walking and coordination tasks, having eyes examined and being videotaped. If police form the opinion the driver is affected they can require a doctor take a sample of urine or blood to test and if drugs capable of impairment are found the driver is prosecuted. First offence: 12 months minimum licence disqualification. Subsequent Offence: (applies if you have any drink or drug driving priors) 2 years minimum licence disqualification. Refusing to provide a sample: at least 2 years minimum licence cancellation. Fines the same as per the 49(1)(bb) offence
The term drug has a very wide definition under the Act and includes over-the-counter and prescription drugs. It is a defence if the driver proves impairment was the result of taking prescription drugs in accordance with a doctor’s prescription. It is an offence to refuse to cooperate with the drug assessment test or to provide the blood/urine samples requested.
⇒ driving or being in charge of a vehicle when saliva or blood contains any trace of Cannabis (s.49(1)(bb), 49(1)(h) & 49(1)(i) Road Safety Act).
These three create offences of driving while being over the limit, the prescribed limit for Cannabis is ANY concentration. Charges under 49(1)(bb) relate to having illicit drugs in the body at time of driving; 49(1)(h) relates to being over the limit at the time you undergo a saliva test (up to 3 hours after driving); and, 49(1)(i) relates to being over the limit at the time you undergo a blood test (up to 3 hours after driving). A saliva or blood test is required to prove the offence under s.49(1)(bb). The test can be performed at random drug testing stations and a blood analysis can be performed on any blood sample a person is obliged to give under any provisions of the Act; blood from a driver at a hospital following a motor vehicle accident etc. So if police are getting a sample of blood for any reason they will test for illicit drugs. The saliva or blood is tested in a laboratory which can take several months.
|Penalties for driving with Cannabis (from 12/12/2010)|
|Traffic Infringement notice penalty||+$500 fine and 3 demerit points|
|Court imposed penalty (first offence)||Up to +$1,400; at least 3 months licence loss|
|Second offence||Up to +$7,000; at least 6 months licence loss|
|Third or subsequent offence||Up to +$14,000; at least 6 months licence loss|
People who lose their licence as a result of a drug driving offence must undertake a drug education and assessment course before being eligible to get their licence back.
It is illegal to possess, use, manufacture, cultivate or supply Cannabis. If a person is found by police to be in possession of 10 g or less of Cannabis (or Cannabis seeds) for personal use and or, a smoking implement with traces of Cannabis, 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. Following completion of the CIS, the counsellor will issue a Certificate of Completion and will send a copy to the WA Police for their records.
An adult can only receive one CIR, while a young person (14-17 years) can be given a CIR on two separate occasions. An adult who previously received a CIR and commits a second or subsequent minor Cannabis-related offence will be prosecuted through the courts. A young person who commits a third or subsequent minor Cannabis-related offence will be dealt with via application of the Young Offender’s Act 1994. The CIR Scheme does not apply to offences involving the possession or cultivation of Cannabis plants, or possession of any quantities of Cannabis resin (hash), hash oil, or other Cannabis derivatives. These offences will be prosecuted through the courts.
Drug Driving – Police have the power to stop drivers suspected of driving while impaired by any licit or illicit drug. Those found with illicit drugs in their oral fluid can be charged with; Driving with Prescribed Illicit Drug in Oral Fluid:
⇒ penalty for a first offence is $500.00 maximum fine and three demerit points (double demerit points apply to this offence).
⇒ second / subsequent offence attracts penalty of $500.00-$1,000.00 and driver may be disqualified from holding / obtaining a driver’s licence for a minimum of six months.
Drivers found to be impaired by prescribed or illicit drugs will be prosecuted for a more serious offence; Drug Impaired Driving under the Influence of Drugs. These offences apply where police have evidence of suspicious or erratic driving behaviour and where that suspicion is confirmed following a driver assessment and/or blood tests.
⇒ The penalty for a first offence for either charge is a fine between $900-$2,500 and a minimum 10 month licence disqualification
⇒ Second offence – fined $2,100-$3,500 and lose licence for 30 months or more
⇒ Third or subsequent offence a fine of $2,100-$5,000, a permanent licence disqualification or jail for 18 months.
In December 2016, Professor Alison Ritter, Specialist in Drug Policy at the University of NSW, wrote that there is only one way to make better decisions about illicit drugs and actually save lives and money. Australia needs to change the way drugs policies are made as the alternative is to remain stuck in the same futile cycle. Every time a young person dies tragically and needlessly at a music festival or dance party, our commentators clamour for our politicians to respond immediately. But policy quick-fixes are mostly ineffective and we find ourselves no better prepared to avert future tragedies or drug-related harm.
However, we have decades of research that tells us what works and why. Smarter drugs policy-making would use that evidence, in conjunction with other policy drivers such as public opinion and personal experience. There are several policies with an established strong evidence base that could be implemented. First, get treatment to those who want and need it; some 200,000 Australians are currently falling through the cracks. Improve treatment options, for example, randomised controlled trials have shown heroin-assisted treatment works for the small number of people who don’t respond to current programs. Needle and syringe programs reduce the risk of HIV and other blood-borne viruses and 90 countries have put them in place, yet only eight countries have them in prisons and Australia isn’t one of them.
Decriminalise personal use of drugs. There are about 100,000 arrests every year for drug use – not supply, but use. This represents an enormous cost, economically and socially and international evidence shows decriminalisation of personal drug use reduces the cost to society and to individuals, and does not significantly increase use. We can also stop doing things that simply don’t work, no matter how sensible they might seem. For example, it’s now a decade since the NSW Ombudsman reported that sniffer dogs had “proven to be an ineffective tool”. The original intention was to focus (appropriately) on drug supply, but sniffer dogs are now extensively used in entertainment precincts and at music festivals to detect drug use.
These examples make clear that current drug policy is rarely driven by evidence. Instead, it is driven by perceptions of what the public wants, fuelled by shock jocks and other outspoken media voices. All too often, this reflects responses to single events and tragedies, not patterns and outcomes established over years or decades of methodical research.
Australian authorities have failed dismally decade after decade, since the 1980’s when they originally introduced ‘harm minimisation’, to successfully deal with the issue of drugs. The harms to our community are driven by the inability of authorities to treat drug use as a health issue, not one of law enforcement, and as such have only exacerbated family and social difficulties, mental health issues, overdose related deaths, transmission of blood borne viruses such as HIV and hepatitis C, involvement in drug-related crime and proliferation of drug lords and growth of the black market in legal and illegal drugs.
Enough is enough, it is well past time Australia introduced some humanity to it’s drug laws.
Update from Cannabis Law, Drug Driving and Medicinal Cannabis in Australia with Drugs and Law, Cannabis Laws in the ACT, Alcohol and Drug Impaired Driving ACT, Sydney Drug Lawyers – Drug Driving, Drugs and Driving, Drug and Alcohol Offences, OFFENCES INVOLVING CANNABIS, Drive with the presence of cannabis, speed/ice or MDMA/ecstacy in oral fluid, blood or urine, Drug Offences in the NT, Drugs and the Law, Drug-driving Penalties, Traffic law – Drug-driving, Criminal Law Penalties, Drug testing in Queensland, Trafficking in Dangerous Drugs, Police Drug Diversion Program, Drug Driving, Queensland Offence – Drug Charges, Drugs and Driving, Law Handbook South Australia, Drug Testing in South Australia, Towards Zero Together, Tasmanian Law Handbook, Lawstuff Drugs Tasmania, Drug Offences in Tasmania, Criminal Offences Drug Possession, Drug-Driving Law in Victoria, Victoria Criminal Legal Crimes – Drug Offences, Illicit Drugs and the Law, WA Traffic Offences – Drug Driving, Reference.com and Our drugs policies have failed. It’s time to reinvent them based on what actually works