‘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 across Australia (the Australian Capital Territory changed it’s law, 1 February 2020, removing some criminality), and penalties vary greatly from state to state and territory. Taking a look at laws on Cannabis use in each state and territory, some offer diversion programs despite Cannabis use being a criminal offence (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 (in most jurisdictions) 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.
From 1 February 2020 there are new rules around personal use of Cannabis in the ACT. Some rules will change, and some will stay the same. Cannabis is not legal in the ACT, amendments have been made which exempt individuals from criminal liability in certain circumstances. From 31 January 2020, under the ACT law if you’re aged over 18 and in the ACT, you can:
- possess up to 50 grams of dried Cannabis or up to 150 grams of fresh Cannabis
- grow up to two Cannabis plants at your home per person, with a maximum of four plants per household.
From 31 January 2020, it’s an offence under the ACT law to:
- smoke or use Cannabis in a public place
- expose a child or young person to Cannabis smoke
- store Cannabis where children can reach it
- grow Cannabis using hydroponics or artificial cultivation
- grow Cannabis plants where they can be accessed by the public.
From 31 January 2020, it’s still illegal:
- to sell, share or give Cannabis as a gift to another person
- for people aged under 18 to grow, have, or use Cannabis
- to drive with any amount of Cannabis in your system.
Possession of small amounts of Cannabis and one or two plants remains an offence under the amended Drugs of Dependence Act, however the Act creates exceptions for certain groups of people. These offences remain simple Cannabis offences under the Act. If a police officer reasonably believes an individual has committed a simple Cannabis offence, and is not an exempt person, they may issue a Simple Cannabis Offence Notice (SCON). Those under the age of 18 are not exempt people under the Act and may be issued a SCON or diverted to a ‘drug’ and alcohol diversion program. The severity of penalties for ‘drug’ use or possession is ultimately at the discretion of the court. For serious offences a person can face fines of up to $250,000 and life imprisonment.
For information on ‘drug’ related offences and their penalties refer to the Drugs of Dependence Act 1989, the ACT Criminal Code 2002,Commonwealth Criminal Code 1995 and the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT). Under these legislative instruments there are offence provisions for a range of ‘drugs’ including modern synthetic types. The ACT is always updating legislation to keep pace with changes in ‘drug’ markets. Commonwealth law is also applicable across Australia, including in the ACT, and all police officers are empowered to enforce these laws. Key Commonwealth legislation includes the Criminal Code 1995 (Cth) and the Narcotic Drugs Act 1967 (Cth). ACT Policing officers have the discretion to utilise ACT or Commonwealth laws and will use their discretion depending on the situation. As such, police can seize Cannabis as evidence of a potential offence under the Commonwealth law and subsequently destroy it.
NEW SOUTH WALES
The Cannabis Cautioning Scheme provides for 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 their Cannabis 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 their discretion in appropriate cases and issue a caution. Police are still able to decide instead to formally charge offenders. 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. 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.
Self Administration of Cannabis: it is an offence to administer or attempt to administer a prohibited ‘drug’ to yourself. The maximum penalty for this charge is a fine of 20 penalty units (currently, one penalty unit equals $110) and/or 2 years imprisonment.
Administration of Cannabis to Others: it is an offence to administer or attempt to administer Cannabis to another person. The maximum penalty for this charge is a fine of 20 penalty units and/or 2 years imprisonment.
Possession of Cannabis: it is an offence to possess a prohibited ‘drug’. The maximum penalty for this charge is a fine of 20 penalty units and/or 2 years imprisonment. If you are in possession of a trafficable quantity of Cannabis, it is presumed you possess the Cannabis for purposes of supply, unless you can prove that it was only for personal use.
Supply of Cannabis: it is an offence to supply a prohibited ‘drug’. The maximum penalty for the charge of supplying a prohibited ‘drug’ depends on the quantity and can range from a fine of 2,000 penalty units and/or 10 years imprisonment, to a fine of 5,000 penalty units and/or imprisonment for 20 years. The quantities for Cannabis leaf have been classified as follows:
|Small Quantity||Traffickable Quantity||Indictable Quantity||Commercial Quantity||Large Commercial Quantity|
|30 g||300 g||1000 g||25 kg||100 kg|
Cultivating Cannabis: a person who;
- cultivates, or knowingly takes part in the cultivation of, a prohibited plant,
- supplies, or knowingly takes part in the supply of, a prohibited plant, or
- has a prohibited plant in his or her possession,
is guilty of an offence.
Penalties for cultivating a prohibited plant depend on quantity and can range from a fine of 2,000 penalty units and/or 10 years imprisonment, to a fine of 5,000 penalty units and/or imprisonment for 20 years. The amount of Cannabis plants cultivated will affect the penalty. The quantities for Cannabis plants have been classified as follows:
|Small quantity||Indictable Quantity||Commercial Quantity||Large Commercial Quantity|
|5 plants||50 plants||250 plants||1000 plants|
Importing and Exporting Cannabis: Cannabis is a border controlled ‘drug’. According to Division 307 of the Commonwealth Criminal Code Act, it is an offence to import or export border controlled ‘drugs’. The maximum penalty for importing or exporting Cannabis depends on the quantity. There are three different quantity ranges under the Criminal Code Act 1995.
|Importing or exporting a border controlled ‘drug’||10 years imprisonment and/or 2,000 penalty units|
|Importing or exporting marketable quantities of a border controlled ‘drug’||25 years imprisonment and/or 5,000 penalty units|
|Importing or exporting commercial quantities of a border controlled ‘drug’||Life imprisonment and/or $750,000|
The following table shows what amount of Cannabis is considered a marketable quantity and commercial quantity.
|Marketable Quantity||Commercial Quantity|
|25 kg or 100 plants||250 kg or 1000 plants|
‘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. New provisions came into effect 8 June 2016. 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. If police reasonably suspect that you have prohibited‘drugs’ they can search you or your car without a warrant. For some minor‘drug’ offences, you may be dealt with using cautions or other diversionary schemes. Drug diversion programs are designed to divert those charged with more minor ‘drug’ offences away from the courts. They are available to adults through an Infringement Notice system; for young people, there is a warning or cautioning system, offered through police or the court. All diversion options allow relevant ‘drug’ offences to be finalised without the offender taking part in the normal court process and receiving a criminal record.
One of the primary ‘drug’ diversion programs occurs through 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, or leaving it at their address. If the amount set out in the notice is paid within the time specified (28 days), no further action will be taken – the person has ‘expiated’ the offence and can’t be again charged for this particular offence in the future.
Infringement Notices can apply in respect of offences involving:
- a prohibited plant if the plant is a Cannabis plant, and
- there are not more than 2 plants being grown, or
- a dangerous ‘drug’ where the ‘drug’ is one specified in column 1 and the amount is less than that specified in column 2.
Form of Cannabis
Oil 1.00 g Resin 10.00 g Seed 10.00 g Plant material – any part of the plant, including leaves, seeds, stalks, and/or the fruiting or flowering tops 50.00 g
It’s an offence to possess, supply or manufacture a prohibited ‘drug’. Many ‘drugs’ are prohibited. If you are under 18 and commit a crime that is connected to alcohol or ‘drug’ use, police can send you to counselling or ‘drug’ and alcohol abuse programs in Darwin, Katherine, Tennant Creek, Nhulunbuy or Alice Springs.
Cannabis is classified as a ‘schedule 2 dangerous drug’ under the Drugs Misuse Regulation 1987. Sentencing of offenders is governed by the Penalties and Sentences Act 1992 (Qld). 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. Maximum penalties of between 15 and 25 years’ imprisonment apply, depending on the type and quantity of the ‘drug’. Other possible penalties include:
- Intensive Corrections Order
- Community Service Orders (CSO)
- Section 19 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 Illicit Drugs Court Diversion Program (Drug Diversion Program) is a diversion program that enables eligible persons, apprehended for a minor ‘drugs’ offence, with an opportunity to attend and complete a Drug Assessment and Education Program as their sentence. If guilty of possessing large quantities. then a sentence of imprisonment is almost inevitable. For lesser amounts, in particular amounts <500 grams, sentences other than imprisonment are often imposed. If you are guilty of possessing under 50 grams and it is your first ‘drug’ offence, you might be eligible for a ‘drug’ diversion order. You are eligible for the Drug Diversion Program if you have been charged with one or more of the following offences under the Drugs Misuse Act 1986:
- Section 9 – Possessing dangerous ‘drug’ – if the ‘drug’ was for personal use and is a ‘drug’ prescribed in and of a quantity less than the amount prescribed in the Penalties and Sentences Regulations.
- Section 10 (2) – Possessing anything used for the administration, consumption or smoking of a dangerous ‘drug’.
There are two quantity ranges under the Drugs Misuse Act and Regulations which apply to Cannabis. The table below shows the maximum penalty for each of the different quantities.
|Less than 500 grams, or 100 plants||15 years imprisonment|
|More than 500g, or 100 plants||20 years imprisonment|
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|
‘Aggravated supply’ is when a person supplies Cannabis to a person who is over 16 but under 18, supplies the ‘drug’ in an educational or correctional facility, supplies it to a person who is intellectually impaired or supplies it to as person who does not know they are being supplied with Cannabis. If you are guilty of aggravated supply a jail sentence is likely, though not inevitable. For less serious examples the offence, for example a young person who purchases a small amount of the ‘drug’ to share with their friends, a custodial sentence is often avoidable. It is illegal to produce dangerous ‘drugs’ pursuant to section 8 of the Drugs Misuse Act 1989. 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 500 g 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.
SA decriminalised minor Cannabis offences in 1987 (the first Australian state to do so). A simple Cannabis offence applies to offences of possessing up to 100 grams Cannabis, or 20 grams Cannabis resin, or smoking Cannabis in private, or possessing equipment (for example, pipes, bongs) or cultivating not more than one (non-hydroponic) Cannabis plant, under the Controlled Substances Act 1984 (SA s 45A). Where a person commits a simple Cannabis offence they may be issued with a Cannabis Expiation Notice by police rather than a summons to attend court. This requires payment of an ‘on the spot’ fine and allows an individual to avoid prosecution in court. The expiation notice must be given to the alleged offender stating the offence may be expiated by payment to the Commissioner of Police of the prescribed expiation fee before the expiration of 28 days from the date of the notice. The notice may be given personally to the alleged offender or posted to his or her last known place of residence. 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 under the Expiation of Offences Act 1996. If the amount of the expiation notice is not paid enforcement proceedings may be undertaken, or the expiation notice may be withdrawn and a summons to attend court may be issued. If the offence is expiated, any substance and equipment may be forfeited.
An offence for smoking in a public place may not be dealt with in this way. Regulation 15 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) says this includes smoking in a motor vehicle or public transport in a public place. People who get caught smoking Cannabis in hotel car parks and similar public places may be prosecuted and convicted in court. If there is any suggestion the possession or cultivation of less than the prescribed amount is for a ‘commercial purpose’, then the offence attracts greater penalties. Where a person is found guilty of cultivating between 2-5 plants, the maximum penalty in such cases is $2,000 or 2 years imprisonment, or both. 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. However for an ‘aggravated offence’, or a basic offence where the offender is a serious ‘drug’ offender, the maximum penalty increases to a fine of up to $5,000 and/or imprisonment for 5 years. If a person is able to prove the plants were for personal use or supply and not sale, regardless of the number, then this penalty will also apply. However, this would be difficult with large numbers of plants.
Cannabis Expiation Fees
|Less than 25 g of Cannabis||$250|
|Between 25 and 100 g of Cannabis||$400|
|Less than 5 g of resin||$250|
|Between 5 and 20 g of resin||$400|
|For smoking or consumption in private||$250|
|For pipes or other equipment (provided it is not for commercial purposes)||$250|
|For pipes or other equipment (if other offences)||$130|
|Non-commercial cultivation (1 plant only, but not hydroponically cultivated)||$400|
(Expiation fees set out in Schedule 5 Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 [SA])
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 covers Cannabis. Individuals found in possession of up to 50 grams Cannabis and/or under 18 years may be able to avoid criminal charges. In these instances, a person may be given a caution, but no more than three cautions can be issued to any one person over a 10 year period.
- Informal police caution – available where you admit to committing the offence and a police officer forms the opinion that the offence is relatively minor and does not warrant any formal action.
- Formal caution – available where you admit to committing the offence and the police form the opinion more formal action is warranted. In this situation, a police officer may require you be formally cautioned, or otherwise attend a community conference or be subject of an official complaint to the Court. You may also be ordered to pay restitution or compensation, perform community service, apologise, or do anything else appropriate in the circumstances of the case. This might also include a health diversion that requires you to attend counselling, support and health treatment services.
The police can search you or your car without arresting you if they ‘reasonably suspect’ you might possess ‘drugs’. If you are searched, make sure you state very clearly you do not want to be searched and ask for that fact to be written down – this makes it harder for the police to claim they had your consent to conduct the search. The police can also search you after arrest. A police officer above the rank of sergeant can also request a doctor examine you in custody without your consent (if it is relevant to the charge).
A number of different ‘drug’ offences in Tasmania apply to cultivation. Cultivating a controlled plant carries a maximum penalty of $7,850 and/or two year’s imprisonment. If the plant is grown for sale, the possible penalty increases to 21 year’s imprisonment. ‘Possession’ doesn’t just mean the ‘drug’ is in someone’s personal possession. It includes where it is on any 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 ‘drugs’ are found in your house if you are aware they are there. It is also an offence to possess pipes or other utensils for use in preparing, smoking, inhaling, administering, or taking illegal ‘drugs’. The maximum penalty is $7,850. The maximum penalty for possession, smoking, or use of a controlled plant is also a fine of $7,850, two year’s imprisonment, or both. The police can charge you with ‘supply’ or ‘trafficking’ if you sell illegal ‘drugs’ or offer to sell them for someone else (even if you don’t go through with the actual sale). The penalty for supply can be $15,700 or 4 years in prison. You can also be guilty of trafficking if:
- You get ‘drugs’ ready to be sold (e.g. cutting them or putting them in plastic bags);
- You arrange to meet a buyer;
- You transport ‘drugs’ to sell them or for someone else to sell them;
- You guard or hide ‘drugs’ with intention of selling them or for another person who intends to sell them;
- You have possession of ‘drugs’ with the intention to sell them;
- You grow ‘drugs’ you are planning to sell in the future.
If you are found guilty of trafficking, you could be sentenced up to 21 years in prison. If you have a large amount of ‘drugs’ on you or at your place, the police will probably think you weren’t going to use all the ‘drugs’ yourself and must have been planning to sell them to other people. If your ‘drugs’ are over a certain weight (even if you say they were for personal use), the court will presume you were supplying unless you can prove otherwise. This is called ‘deemed supply’. The particular quantity of ‘drugs’ is called the ‘trafficable quantity’ and the weight varies from drug to drug. For Cannabis, a trafficable quantity is one kilogram or 20 plants. If you have this amount or more, it will be assumed you are guilty of the more serious crime of ‘drug trafficking’. It is then up to you to prove to the court you were not intending to ‘supply’ the ‘drugs’ (i.e. they were for your personal use), or you obtained the ‘drugs’ by medical prescription.
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
- trafficable – 250 g or over, or 10 plants
- commercial – 25 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. The Diversion program is normally for less serious cases. You must agree to certain conditions, such as doing the Cautious With Cannabis program. You do not get a criminal record.
- plead guilty
- plead not guilty
Possession of 50 grams or less Cannabis for personal use is punishable by a fine only of up to five penalty units. If police also charged you with using Cannabis, and a magistrate found you guilty, the magistrate could fine you up to another five penalty units (on top of the penalty units for possession). Possession of larger quantities of Cannabis is punishable by a fine and/or imprisonment of up to a year. The rate for penalty units is indexed each financial year and raised in line with inflation. Police may also charge you with trafficking a ‘drug of dependence’ if caught:
- with a large quantity
- preparing (such as dividing into smaller packages) or manufacturing
- buying for a friend.
The penalties are much higher for trafficking an illegal ‘drug’. They depend on the quantity you have and how old you are. The maximum penalty for an adult is;
- 15 years jail and/or a fine of up to 1,800 penalty units, or
- 25 years jail and/or 3,000 penalty units for trafficking a commercial quantity of an illegal ‘drug’.
The maximum penalty for a person under 18 years old is 20 years in jail and/or a fine of up to 2,400 penalty units. 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. Cultivation for personal use (generally fewer than 10 plants) is punishable by a fine and/or imprisonment of up to a year. Cultivation for sale is punishable by a fine and/or imprisonment of up to 15 years. Cultivation of more than 100 plants is punishable by imprisonment of 25 years, while an even larger growing operations can be punished by a life sentence.
Illegal ‘drugs’ are called ‘drugs of addiction’ or ‘prohibited drugs’. Illegal plants are called prohibited plants. It is an offence to possess a ‘drug of addiction’ or ‘prohibited drug’ or ‘prohibited plant’, unless a doctor has lawfully prescribed that ‘drug’. Police can issue a Cannabis Intervention Requirement (CIR) or a Drug Diversion Notice when small quantities are detected. Possession and use of Cannabis is still 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 officer may issue a CIR to that person. The CIR can be resolved by completing a Cannabis Intervention Session (CIS) within 28 days. Approved drug counsellors conduct the session that aims to increase awareness of the laws and health effects relating to Cannabis and enhance motivation to change by providing a non-judgemental environment in which open discussion will be encouraged. If a person fails to attend, the alleged offence will be prosecuted. The CIR scheme applies to anyone aged 14 years and over and is legislated under the Misuse of Drugs Act and the Young Offender’s Act.
Possession of a ‘drug’ (for your own personal use) is a simple offence, which means it is dealt with by the Magistrates Court with a maximum penalty of $2,000 and/or imprisonment for 2 years under the Misuse of Drugs Act 1981. Possession with intent to sell or supply is a much more serious offence with a maximum penalty of $100,000 and/or imprisonment for 25 years. If you are caught with larger amounts of ‘drugs’ you will be deemed to be in possession for the purpose of supplying them, which means you will automatically face much higher penalties, unless you can prove the ‘drugs’ were for your own use. Selling, supplying, offering to supply a ‘drug of addiction’ or ‘prohibited drug’ or ‘prohibited plant’ comes with a maximum penalty of $100,000 and/or imprisonment for 25 years.
Supply of Cannabis leaf (not resin or other Cannabis products) is treated less seriously with a maximum penalty of $20,000 and/or imprisonment for 10 years. Selling, supplying, offering to supply a ‘drug of addiction’ or ‘prohibited drug’ or ‘prohibited plant’ in an amount that is less than the indictable amount can be dealt with summarily in the Magistrate’s Court with a maximum penalty of $5,000 and/or imprisonment for four years. Trafficking offences are prosecuted under charges of supply. The same penalties apply. The law requires the Court declare you a ‘drug’ trafficker if you have been previously convicted of two or more serious ‘drug’ offences (supply or manufacture of any amount, or cultivation or possession of a trafficable or commercial amount) in the previous 10 years. That means you will be declared a ‘drug’ trafficker on your third offence. The ‘drug’ offences can be either inside WA or anywhere else in Australia or even overseas. You can also be declared a ‘drug’ trafficker if you are convicted just once of a serious ‘drug’ offence involving a large amount of prohibited ‘drugs’ or plants. The consequence of being declared a ‘drug’ trafficker means all your property (houses, land, cars, boats, money, shares and personal possessions) can be forfeited to the State government and permanently seized. Your property can be taken even if it was not connected to a ‘drug’ offence and was lawfully obtained or acquired.
Trafficking, Supply and Manufacture
Deemed supply pure quantity (grams)
Indictable pure quantity (grams) Schedule 3 & 4
Trafficable pure quantity (grams) Schedule 7 & 8
|You will face higher penalties for supply rather than possession||You will be tried in the District or Supreme Court – higher penalties||
Maximum Penalty: $100,000 / 25 years imprisonment
|Cannabis||100 g||500 g||3,000 g|
|Cannabis Resin (Hash)||20 g||40 g||100 g|
|Cannabis Plants||10 plants||20 plants||20 plants|
|THC||2 g||4 g|
It is an offence to cultivate a ‘prohibited plant’ with the intention of selling or supplying it to another person. Cultivate has a wide meaning in WA and includes:
- sowing or scattering the seed produced by a ‘prohibited plant’; or
- planting, nurturing, tending or harvesting the ‘prohibited plant’.
Other actions like watering the plant or fertilising it will likely be considered cultivation with a maximum penalty of $100,000 and/or imprisonment for 25 years. Cultivation of Cannabis leaf (not resin or other Cannabis products) with intention of sale or supply is treated less seriously with a maximum penalty of $20,000 and/or imprisonment for 10 years. As with possession of drugs, if caught cultivating a larger amount of ‘prohibited plants’, you can be charged with ‘deemed supply’. This means you will face much higher penalties because the Court will automatically assume you are growing to sell, and you will have to prove otherwise. Cultivation of a small amount of ‘prohibited plant’ less than the indictable amount can be dealt with summarily in the Magistrate’s Court as a less serious offence with a maximum penalty of $5,000 and/or imprisonment for four years. Cultivation of a small amount of ‘prohibited plant’ for personal use is an offence with a maximum penalty of $2,000 and/or imprisonment for two years.
Update from Cannabis Law, Drug Driving and Medicinal Cannabis in Australia with Drugs and the Law – ACT Policing, Cultivating Cannabis and the Law (NSW), Drugs and the law, Drug offences in the Northern Territory, NT – The Law and Your Rights, Sentencing adult offenders, Youth Law Australia – Drugs, Drug Offences | Your rights, crime and the law | Queensland, SA Health Illicit drug laws – Cannabis and the law, Drug Possession – Victoria Legal Aid, WA – The Law and Your Rights, and WA – Illicit drugs and the law
23 February 2020