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
- possession of implements or equipment to manufacture drugs
- driving under the influence of drugs
Personal Cannabis use and possession is illegal right across Australia and penalties vary greatly from state to state. As at November 2016, ‘medicinal Cannabis’ will be legal Australia-wide with a federal Cannabis cultivation scheme. So what do the laws say about use and possession of Cannabis, drug-driving and where is ‘medicinal Cannabis’ legal 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. Usually, diversion is only available to non-violent offenders.
It is an offence to drive a vehicle in Australia under the influence of drugs. Most drivers would have undergone a breathalyser test at some stage, police can now administer a drug test. All states and territories have laws making it an offence to operate a vehicle while on drugs and if a person is found to be under the influence of an illegal substance, they may find themselves in trouble with the law. 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.
Federally, ‘medicinal Cannabis’ use is currently illegal, only available through trials and limited Special Access Schemes. But in February, the Federal Government passed legislation ‘legalising’ cultivation of Cannabis for medicinal purposes. The Narcotic Drugs Amendment Bill 2016 introduced a legislative framework enabling the cultivation of Cannabis in Australia and facilitating access to medicinal Cannabis for therapeutic purposes. The Federal Health Minister said, “This is very complex legislation given it brings together so many different strands of so much at state and territory level. We needed to make sure we consulted with law enforcement, that we protect the integrity of the system and those who use it and that we enabled the states to do what many of them are standing by ready to go ahead with”. The Government said it worked closely with the states and territories in developing the legislation and the Health Minister clarified that the legislation did not relate to decriminalisation of Cannabis for general cultivation or recreational use. “If states wish to decriminalise Cannabis, then that’s entirely a matter for them. This product is not one that you smoke, it’s not something that might be out there illegally”.
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.
Drug Driving – Police commenced Random Roadside Drug Testing (RRDT) in May 2011, testing for Cannabis, speed, ice and ecstasy. Testing relates to the presence of a drug in the driver’s system with no limit like drink driving. RRDT is a three step process with the first two steps undertaken by police, roadside. An oral test is followed by a ‘preliminary oral fluid analysis’. If a person is unable to provide saliva, a blood test may be used. A third ‘confirmative’ positive laboratory test is required (by ACT Government Analytical Laboratory [ACTGAL]). Drug drivers appear in court, similar to those who ‘drink and drive’. A first offence can lead to a fine of up to $1,500.00. For repeat offenders; a fine of up to $3,750.00, three months imprisonment, or both can be imposed by the court. An offending driver can also face a loss of license for a period specified by the court. For more information on drug impaired driving refer to the ACT Road Users Handbook.
Medicinal Cannabis – On 20 September it was reported by the AMA that the Australian Capital Territory had become the latest jurisdiction to move towards allowing medicinal Cannabis. The Government announced it would establish a scheme, rather than starting with a trial. The Assistant Health Minister said the Government was working to develop a considered and consistent framework to support the scheme as soon as possible. “Now the Commonwealth has acted, we can establish a scheme that will treat medicinal Cannabis products in the same manner as other medicines. At the moment, there are no clinical guidelines on what types of conditions medicinal Cannabis can and should be prescribed for. The ACT Government will develop evidence-based guidelines to inform and support medical practitioners in how to best prescribe medicinal Cannabis products”. It is unlikely the scheme will be in place before the Territory election in October. But the Liberal Opposition Leader has said, if elected, a Liberal Government would establish a medicinal Cannabis scheme.
29 October 2016 – currently working on legislation that will include education sources for doctors. The legislation is expected to come into effect next year.
From 1 November ‘cannabis products’ which are intended for medicinal use and are either: a) manufactured in Australia in accordance with the Commonwealth Department of Health regulations; and/or b) imported in accordance with a valid customs import license issued by the Commonwealth Department of Health will be able to be prescribed as a schedule 8, ‘controlled’ medicine in the ACT.
Update 2 March 2017 – ACT Health Minister Meegan Fitzharris said, “Establishing a ‘medicinal Cannabis’ scheme is a priority for the ACT government, and the next stage of this work is to appoint two expert advisory committees”. On the Advisory Board will be one representative from ACT Policing, one from the ACT medical research community, one from the higher education sector; representatives from Justice and Community Safety and Community Services Directorates. Two board members will be drawn from the general ACT community … Another panel will be made up of members of the medical profession. “Both committees will ultimately help develop a considered and coherent framework for a ‘medicinal Cannabis’ scheme in the ACT”.
“These committees will help address any issues raised during the establishment of the scheme through the provision of evidence-based expert advice and guidance to government. The government will also look to develop education materials for clinicians and the general public to support the implementation of the scheme”. The TGA has already declared ‘medicinal Cannabis’ a controlled medicine, which means it can be prescribed in the ACT with the approval of the Chief Health Officer. The Minister said there was no “immediate requirement” to amend ACT laws to implement the scheme. Only registered medical practitioners can apply for the authority to prescribe the ‘drug’. Expressions of interest close on 24 March.
Contact details for information on Cannabis as a medicine in the ACT; ph: (02) 6205 0998; firstname.lastname@example.org (email); website, ACT Health
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.
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. MDT is increasing and by 2017 there will be three times the number of tests detecting drivers who’ve recently used ecstasy, Cannabis and speed (including ice). MDT can be conducted at roadside operations along with RBT, or by police patrolling the roads. Drivers caught will face court, could lose their licence, be fined and end up with a criminal record. For a presence offence the court may impose a fine up to $1,100.00 and a six month licence disqualification. Drivers proven to be driving under the influence of illegal or prescription drugs face fines of up to $2,200.00 and a 12 month licence disqualification for a first offence. Offenders can be sentenced to up to nine months in prison with higher penalties applying for second and subsequent offenders.
Other penalties for a drug driving conviction include a good behaviour bond and a community service order. If you plead guilty to a charge of drug driving you may be able to obtain a Section 10 Order; a finding of guilt with no conviction. If you get a Section 10 you won’t face disqualification and won’t end up with a criminal record. Pleading guilty can help get a more lenient sentence, especially when you demonstrate remorse and show you have taken steps to address your ‘offending’. Interestingly the penalties are the same for those found to be using cocaine and morphine, but they don’t test for either, roadside. A blood sample can be taken (without consent) from a person in the event that no oral fluid can be obtained.
Medicinal Cannabis – Children with severe, treatment-resistant, paediatric epilepsy began a trial at John Hunter Children’s Hospital in late September. During the course of the trial, up to 12 children will receive doses of a pharmaceutical-grade, ‘Cannabis-derived’ medicine, the untried Epidiolex# through the Compassionate Access Scheme as part of a wider trial involving up to 40 children (human guinea pigs). “The Compassionate Access Scheme will see some of the sickest children in NSW who have not responded to available epilepsy drugs and treatments, gain access to a regulated pharmaceutical supply of cannabidiol (CBD) at an earlier date than was expected and before it is accessible in many other countries”, said the lead trial researcher from Sydney Children’s Hospital in Randwick.
“These children suffer from such severe, treatment-resistant epilepsy, some with hundreds of seizures a day, that they are too sick to take part in clinical trials. This Scheme fills that gap in the hope of providing some relief to them and their families”, he stated. A palliative care trial is also set to enrol patients to use vaporised Cannabis flower (bud) and placebo. The first part will be conducted at the Calvary Mater Newcastle Hospital and Sacred Heart Health Service in Sydney, while the second part will enrol a larger number of patients in major hospitals yet to be confirmed.
The state is also conducting a trial for patients suffering vomiting and nausea as a result of chemotherapy (CINV). About 330 patients are expected to take part in the clinical trial which will use a Cannabis-derived tablet (investigational product) manufactured by Canadian company Tilray. In July 2016, the Ministers for Primary Industries and Medical Research announced it had become the first Australian state authorised by the Commonwealth government to conduct medicinal Cannabis cultivation research. The research will be conducted in a state-of-the-art, high security facility. In August 2016, as a result of government regulatory changes, doctors became able to apply to prescribe a broader range of ‘Cannabis-based’ medicines to patients who have exhausted standard treatment options. “This change increases the options available for doctors as it means a broader range of ‘Cannabis-based’ medicines can be prescribed, while we continue our evidence-based research looking further into the role medicinal Cannabis can play”, said the Premier.
Update 29 October 2016 – Cannabis will be available for end of life illnesses, but only for adults.
Contact details for information on Cannabis as a medicine in NSW; ph: (o2) 9391 9944 (medical practitioners only); email@example.com (email); General info: Centre for Medicinal Cannabis Research and Innovation, NSW Health
Legislation relating to drug offences was amended by the Justice Legislation Amendment (Drug Offences) Act 2016 which 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 some minor drug offences you may be dealt with using cautions or other diversionary schemes. 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 their fine. If they do this, they are unlikely to face a criminal charge. Drug diversion programs are designed to divert those charged with 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 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.
Drug-driving – It is an offence if you drive with drugs in your system. Police have the power to test drivers to see if they are driving under the influence. Driving under the influence of a drug is dealt with under the Traffic Act. The procedure for testing and the definition of a drug is outlined in the Traffic Regulations. Some drugs are strictly prohibited and some are prohibited unless prescribed by a medical practitioner and taken as directed. Police can direct you to submit to a saliva or blood test in any of the following situations:
- you are pulled over to submit to a random saliva test
- an officer believes you have committed an offence – driving with a drug in your body or driving under the influence of a drug
- an officer reasonably suspects you have been involved in a crash on a road, road-related area or public place.
If the police ask you to submit to a saliva test you must comply but the police must not ask you to take a saliva test if it appears you are injured and it may be detrimental to your condition or if you have a physical disability that prevents you providing a sufficient sample of saliva.
Medicinal Cannabis – Not legal.
Contact details for information on Cannabis as a medicine in NT; ph: (08) 8999 2633; chiefhealthofficer.DoH@nt.gov.au (email)
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:
- Intensive Corrections Order
- Community Service Orders (CSO)
- Section 19 order
Drug Driving – The state government passed specific 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 slightly less serious and does not require police to establish a person was actually under the influence, simply that the drug was present in their blood or saliva. The legislation provides all road users must have no trace of any prohibited drugs in their system, (zero tolerance).
The punishment for drug DUI is the same as for high range drink driving (they are, technically, the same offence) with a maximum of 9 months imprisonment and/or a 28 penalty unit fine. A second, or subsequent, offence within 5 years, carries a maximum penalty of 18 months imprisonment and/or a 60 penalty unit fine. For a third and subsequent offence within 5 years of the first, the law requires a court impose a sentence which includes imprisonment. Upon convicting a person of driving while a drug is present in their blood or saliva, a court is required to disqualify them from holding or obtaining a drivers licence for a minimum of 1 month for a first offence, and 3 months for a second offence. Third and subsequent offences attract an automatic 6 month disqualification. A penalty unit is currently $121.90 (increases by 3.5%, July yearly, unless the Attorney-General stipulates a different indexation amount or there is a change in legislation). In addition, anyone who pleads or is found guilty in the Magistrates Court must pay the Offender Levy, presently around $111.00.
A court has discretion to record, or not record, a conviction for any offence unless it imposes a term of imprisonment (suspended or otherwise) or makes an Intensive Corrections Order. This power, contained in Section 12 of the Penalties and Sentences Act 1992 means a court can impose a fine on a person without recording a conviction where it considers a person ought to be punished but not have a criminal conviction recorded. When deciding the court must consider:
- nature of the offence,
- age and character of the offender,
- impact that a conviction would have on the persons economic or social well-being or chances of finding employment.
Medicinal Cannabis – Children with severe drug-resistant paediatric epilepsy can take part in a medicinal Cannabis clinical trial and the Public Health (Medicinal Cannabis) Bill 2016 is to allow doctors to prescribe medicinal Cannabis for their patients. The Health Minister introduced the Bill saying it would create the most progressive laws in Australia and set up a robust framework to ensure it was prescribed safely. He said more than 1,000 people responded in an online survey to the draft Bill, with 96% in favour of Cannabis being used for treatment. “Queenslanders have sent us a strong message – we have listened and by presenting this Bill to Parliament we are moving towards delivering for them”, he said … legalising medicinal Cannabis would not allow anyone to just grow their own Cannabis. “It’s important we acknowledge medicinal Cannabis is a dangerous drug and should be regulated properly. Clinicians need to balance effective treatment by any drug and its ability to relieve symptoms with potential side effects”.
Sadly, the Health Minister, Queensland Health (run by bureaucrats) and the rest of the states elected officials seem to be ignoring their citizens and discriminating against the least fortunate; those with disabilities, those with intractable disease and those with seriously ill children, suffering due to ignorance, arrogance and greed. A current case involves Steve Peek and his 8 year old daughter, Suli. Even though doctors have tried every legal medication on her, she has a regressive neurological disorder that causes multiple chronic seizures, nothing has worked. Suli now needs palliative care in a Brisbane hospital. Mr Peek wants to be granted amnesty to administer whole plant medicinal Cannabis to his daughter, it stops her seizures and provides her with some quality of life, as her diagnosis is terminal. An e-petition to parliament is available for residents to sign.
Update 29 October 2016 – From March 2017 a specialist should be able to prescribe Cannabis for certain patients who have illnesses including MS, epilepsy, cancer and HIV/AIDS. There are no age restrictions, but approval will only be provided by a doctor who needs to show evidence that Cannabis could help the patient.
Update 1 March 2017 – Queensland Health – In Australia, medicinal cannabis refers to regulated products that:
- are specifically used for therapeutic purposes
- have a consistent dose and cannabinoid amount
- meet the standard for cultivation and manufacture developed by the Therapeutic Goods Administration (TGA)
- are not contaminated with heavy metals, pesticides, fungi, or moulds.
Doctors can apply to prescribe both plant-based products and synthetic products. When used for a therapeutic purpose, these forms would be considered:
- tinctures: plant material infused in oil or alcohol
- vapour: dried plant material or concentrated cannabis extract is heated in a vaporiser
- capsules or sprays: generally oil-based capsules taken orally
- pharmaceutical products such as nabilone and nabiximols.
Growing your own medicinal cannabis remains illegal – home-grown cannabis products have unknown concentrations of active ingredients and contain potentially harmful contaminants. These home-grown products are easily diverted into the illicit drug market. Medicinal cannabis products need to be consistent, contaminant-free and high-quality, so doctors can make safe prescribing and dosage decisions. Queensland does not have an amnesty scheme.
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.
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.
|Expiation Fees 2014|
Less than 25 grams of Cannabis
Between 25 and 100 grams of Cannabis
Less than 5 grams of resin
Between 5 and 20 grams of resin
For smoking or consumption in private
For pipes or other equipment (not for commercial purposes)
For pipes or other equipment (if other offences)
Non-commercial cultivation (1 plant not hydroponically cultivated)
(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. Police have the power to request a motorist take a roadside test randomly, if involved in a motor vehicle accident, having broken a law or are driving in a manner that shows you may be affected by a drug. You can be charged with driving under the influence of a drug or driving with a prescribed drug present. The less serious of the two offences is driving with a prescribed drug (MDMA, THC or methamphetamine) as provided under the Road Traffic (Miscellaneous) Regulations 2014, present in the system. The penalties vary depending on how many times you have committed the offence:
First Offence – Fined $900.00-$1,300.00 and disqualification of 3 months
Second Offence – Fined $1,100.00-$1,600.00 and disqualification of 6 months
Third Offence – Fined $1,500.00-$2,200.00 and disqualification of 12 months
Further Offence – Fined $1,500.00-$2,200.00 and disqualification of 2 years
The more serious offence of driving under the influence makes it an offence for a person to attempt to drive a vehicle after taking a drug that has 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 i.e., slurring, incapacity to walk or confused speech. As above, the penalties for this offence vary depending on whether it is a first or second time offence.
First Offence – Fined $1,100.00-$1,600.00, 12 months disqualification or 3 months prison
Further Offence – Fined $1,900.00-$2,900.00, 3 year disqualification or 6 months prison
Medicinal Cannabis – In April the Health Minister ruled out changing the law in regard to medicinal Cannabis at this stage. In early October, the Australian Cannabis Corporation was formed to grow medical Cannabis with the government saying it will support the industry. “The government understands the importance of removing barriers to help develop a medicinal Cannabis industry and supports in-principle medicinal Cannabis research and development …” said a government spokesperson. Patient access will be by prescription from specialist medical practitioners to patients with serious, chronic illness unresponsive to conventional treatment and products made under commonwealth licensing or imported under a permit issued by the TGA.
1 November, 2016 – SA Health – The term ‘medicinal cannabis products’ covers a range of cannabis preparations intended for human therapeutic use, including pharmaceutical cannabis preparations, such as tablets, oils, tinctures and other extracts. Crude cannabis is difficult for doctors to prescribe because the specific components (chemicals known as cannabinoids), the dose and potency in each plant is not tested or known. Pharmaceutical preparations of cannabis contain specific active components in known amounts and mixtures, which optimise the therapeutic benefit and minimise side effects. The dose and strength of the preparation can be controlled and standardised, making it safer for patients to use. Commonwealth Department of Health regulates medicinal cannabis products through the Therapeutic Goods Administration (TGA) and the Office of Drug Control (ODC).
Contact details for information on Cannabis as a medicine in SA; ph: 1300 652 584 (medical practitioners only); HealthDrugsofDependenceUnit@sa.gov.au (email); SA Health
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 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. 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.
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 by police, 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:
the person has not complied with the requirements of a law in force in the jurisdiction in which they were last disqualified relating to alcohol or drug-related offences
the person has not complied with a penalty imposed by a court in any jurisdiction for an offence related to operating a vehicle
the person has been convicted in another jurisdiction or another country of an offence which, if committed in Tasmania, would have resulted in disqualification, suspension or cancellation of the driver licence
the person has failed to comply with a licence condition.
Medicinal Cannabis – The state government announced in April, specialist medical practitioners would be allowed to prescribe to patients. The Premier and Minister for Health said specialist medical practitioners would be able to prescribe to qualifying patients, without changes to the law. The state government will establish the Controlled Access Scheme to deal with patients who think they need Cannabis. The scheme will require doctors to seek approval to prescribe and will allow Cannabis to be grown lawfully under federal licences. Furthermore, a specialist doctor will be able to seek approval to prescribe Cannabis for a specified medical condition, such as severe epilepsy. The decision of whether or not medicinal Cannabis is an appropriate treatment for a particular condition and for a particular patient will be initiated by doctors. Under the scheme, there will be no limit on treatable diseases, an expert panel will assess applications from doctors and the Government is to work with business to produce products locally.
Update 29 October 2016 – developing a Controlled Access Scheme, to allow patients to access unregistered cannabis. It is expected to come into effect next year.
Contact details for information on Cannabis as a medicine in Tas; ph: (03) 6166 0400; firstname.lastname@example.org (email); Department of Health and Human Services
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
If you are found guilty the magistrate may give you a fine, depending on the amount you pleaded guilty to possessing. If you plead guilty to possessing up to 50 grams the magistrate could fine you up to five penalty units. One penalty unit is currently $155.46 (1 July 2016-30 June 2017). The rate for penalty units is indexed each financial year so it is raised in line with inflation.
Cultivation is the offence of growing what the state deems ‘narcotic’ plants; Cannabis, opium or coca. The maximum penalty depends on whether you are found guilty of trafficking as well. These are indictable offences. Cannabis and opium are most commonly involved in the offence of cultivation. For personal use (less than 10 plants) is punishable by a fine and/or imprisonment up to 1 year. Cultivation for sale is punishable by a fine and/or imprisonment up to 15 years. Cultivation of more than 100 plants is punishable by imprisonment of 25 years, while even larger grow operations can be punished by a life sentence. 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 of 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 being in charge of a motor vehicle while ‘under the influence’ of Cannabis to such an extent as to be incapable of having proper control of the motor vehicle (s.49(1)(a) Road Safety Act 1986),
This offence is difficult to prove as it is technical yet vague and new laws were introduced to make it easier to detect and prosecute drivers. The mandatory minimum period of licence disqualification is 2 years for a first offence, 4 years for a second offence. Secondly,
driving/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. 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.
First offence: 12 months minimum licence disqualification. Subsequent Offence: (which 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 below.
- driving or being in charge of a vehicle when saliva or blood contains a trace of Cannabis (s.49(1)(bb), 49(1)(h) & 49(1)(i) Road Safety Act)
These three sections 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 the 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 then tested in a laboratory which can take several months.
|Penalties for driving with Cannabis (from 12/12/2010)|
|Traffic Infringement notice penalty||Approx. $500 fine and 3 demerit points|
|Court imposed penalty (first offence)||Up to approximately $1,400; at least 3 months licence loss|
|Second offence||Up to approximately $7,000; at least 6 months licence loss|
|Third or subsequent offence||Up to approximately $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.
Medicinal Cannabis – Children with severe epilepsy will be the first to access medicinal Cannabis products in 2017, the Health Minister said after the Access to Medicinal Cannabis Bill passed Parliament on 12 April 2016. The legislation enables manufacture, supply and access to medicinal Cannabis products in the state. Access in a variety of forms, tinctures, oils, capsules, sprays and vaporisable liquids would be rolled out gradually and eventually be made available for palliative care and those with HIV. The state government said it would set up an Office of Medicinal Cannabis to oversee manufacture and would educate doctors and patients about their role and eligibility for the scheme.
Update 29 October 2016 – children with severe epilepsy will be able to access Cannabis from early 2017.
1 November, 2016 – Health Vic – In Victoria, medicinal cannabis refers to approved quality assured cannabis products prescribed by your doctor and taken to treat the symptoms of a medical condition or the side effects of treatment. In Victoria, medicinal cannabis will be a standardised quality controlled product and will not be in a smoke-able form (smoking does not include vaporising). Use of recreational cannabis or smoking cannabis for medical reasons remains prohibited in Victoria.
Contact details for information on Cannabis as a medicine in Vic; ph: (03) 9096 7768; email@example.com (email); Health.vic
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.
Drug Driving – Police have the power to stop drivers suspected of driving while impaired by any drug and those found with illicit drugs in their oral fluid can be charged with the offence of 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 $900.00 – $2,500.00 and a minimum 10 month licence disqualification.
- Second offence offenders can be fined $2,100.00 – $3,500.00 and lose their licence for 30 months or more.
- For a third or subsequent offence a fine of between $2,100.00 – $5,000.00, a permanent licence disqualification or jail for 18 months.
Medicinal Cannabis – The state government previously said it would not conduct trials until it received the results of testing in NSW.
Update 29 October 2016 – Government passed changes supporting federal legislation. That means doctors will be able to prescribe Cannabis under strict conditions. The WA Government previously said it would not conduct medicinal Cannabis trials until it received the results of testing in New South Wales.
1 November, 2016 – WA Dep’t of Health – Cannabis-based products (CBP) include any product that is:
- listed in Schedule 8; and
- intended for legitimate medical or medical research purposes; and
- contains cannabis; or
- is derived from cannabis; or
- contains cannabinoid substances.
The Therapeutic Goods Administration provides an overview of all relevant Australian regulation.
Contact details for information on Cannabis as a medicine in WA; ph: (08) 9222 6883; firstname.lastname@example.org (email); Pharmaceutical Services Branch: Gov’t of Western Australia
#GW Pharmaceuticals Prospectus (July 2016) stated, regarding Dravet syndrome: Phase 3 trial randomised 120 patients into two arms, Epidiolex 20mg/kg/day (61) and placebo (59). Epidiolex or placebo was added to current AED treatment regimens. On average, patients were taking approximately three AEDs, having previously tried and failed an average of more than four other AEDs … average age of trial participants was ten years and 30% of patients were younger than six years … median baseline convulsive seizure frequency per month was 13. The primary efficacy endpoint was a comparison between Epidiolex and placebo measuring the percentage change in the monthly frequency of convulsive seizures during the 14-week treatment period compared with the 4-week baseline observation period. In this trial, patients taking Epidiolex achieved a median reduction in monthly convulsive seizures of 39% compared with a reduction on placebo of 13% … Epidiolex is an oral pharmaceutical formulation of pure cannabidiol (CBD), a non-psychoactive component of the cannabis plant, which is manufactured by British company GW Pharmaceuticals. Currently, because it is an experimental medication, Epidiolex has not been considered by the TGA for routine use in Australia.
Organic, whole-plant Cannabis elucidates an up to 100% reduction in epileptic seizure activity in paediatric patients with Dravet syndrome. Deisha S., Jai W. and Tara O. are just three Australian children responding 100% to specifically individualised, organic, whole-plant Cannabis treatments. These children have all seen cessation of seizure activity. These children were all previously relegated to wearing helmets for frequent falls (including drop seizures), in wheelchairs (doped to the eyeballs on an assortment of extremely toxic AED’s [Anti-Epilepsy Drugs]) and without testable IQ’s (‘Western medicine’ is NOT good medicine in these cases). They are now being reintroduced to the world at large at their appropriate age levels; nothing can hold them back now, oh, except Australia’s archaic, demonising, persecutionary and prosecutionary laws regarding organic, whole-plant Cannabis! These children do NOT want to get high, they want relief! Just like the thousands of other Australians who currently use Cannabis as medicine. All use is therapeutic, as is the use of hemp … both kinds of Cannabis sativa are preventative medicine, the best kind, provided by nature!
*What is the difference between a drug and a medicine? A medicine is any substance designed to prevent or treat diseases and a drug is designed to produce a specific reaction inside the body. While there is considerable overlap between the two types of substances, these differences are quite important. Most of the medicines that are also drugs are considered “controlled substances”. This means there are laws governing their use and using them in ways contrary to those laws can lead to criminal charges. Antidepressants are drugs, in that they are designed to help alleviate the physical symptoms of depression. However, they are also used in the treatment of the chemical imbalance that leads to depression, so also a medicine. Cocaine, on the other hand, is a drug designed to create a specific mental reaction that leads to a “high” for the user. However, the medical establishment does not recognise any medical benefits for cocaine at this time. Over-the-counter anti-inflammatory medicines are designed to treat pain, but they do not have a strong enough effect to fit into a controlled substance classification, unlike stronger pain relievers. This means these are medicines rather than drugs. Understanding the similarities and differences between drugs and medicines is an important part of medical and pharmaceutical training. The very reasons Cannabis is NOT a drug, it is a herb, nor is it a toxin, narcotic nor hallucinogen.
Expanded from SBS Factbox-Cannabis-Laws-Australia, with Drug Driving Laws in Australia, Cannabis Laws in the ACT, Alcohol and Drug Impaired Driving ACT, Sydney Drug Lawyers – Drug Driving, Drugs and Driving, Cannabis and the Law, Drug and Alcohol Offences, Drugs and the Law, Drug Testing in the Northern Territory, 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, 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