The unauthorised use, possession, cultivation, and distribution of cannabis or marijuana for non-medical use are illegal in Australia. However, the Narcotic Drugs Amendment Act 2016 (Cth) legalised the cultivation, production, and distribution of medicinal cannabis in Australia.
This amendment to the Narcotics Drugs Act 1967 allowed for establishing a strict licencing and permit-based cannabis cultivation scheme in Australia. The Act regulates and limits the cultivation and production of cannabis, cannabis resin and related activities.
This amendment did not legalise cannabis and made provisions for the supply or cultivation of cannabis for medical use or research. It is thus legal to grow cannabis in Australia with a licence under strict controls for medicinal and research purposes only. However, cultivating cannabis without a licence remains a serious offence and illegal according to Australian cannabis laws as well as in all the states and territories.
Cannabis or marijuana has other popular street terms such as weed, pot, dope, buds, grass, joint, and many more. Cannabis was first used in India, China, and the Middle East for medical and religious purposes. The Western world was introduced to cannabis in the early 1800s. The drug was used for pain relief before the introduction of aspirin in the late 1800s.
People have used the cannabis plant for different purposes through the centuries. They used it as a drug, medicine, and for producing hemp fibre.
Cannabis comes from the Cannabis sativa plant. It is known to act as a central nervous system depressant. The active ingredient delta-9 tetrahydrocannabinol or TCH may alter sensory perceptions to cause relaxation and euphoria or paranoia.
Cannabis also contains another ingredient called cannabidiol or CBD. According to research, CBD can have positive results in alleviating symptoms of certain medical conditions. Cannabis is found in the following most common forms:
· Hashish or hash
· Hashish oil or hash oil
Marijuana is the dried leaves and flowers of the cannabis plant and is seen as the weakest form of cannabis. Hashish is the dried resin from the cannabis plant, and this form is stronger than marijuana. Hashish oil is the most potent form of the plant, and this oil is extracted from hashish. It can also be found in the form of edibles and highly concentrated extracts in wax and cannabinoid oils.
Marijuana is smoked with or without tobacco. Marijuana is usually rolled up in cigarette paper, placed in a water pipe, or vaped in a vaporiser. Dabbing has also become popular. Marijuana can also be mixed with other food and consumed, for example, a marijuana brownie cookie.
The specific reason why marijuana or weed was banned in Australia is not formally documented. Cannabis has been prohibited in Australia since 1926. The states and territories followed suit from 1926 to 1959. Cannabis was later added to the list of prohibited drugs, resulting in the 1961 Single Convention on Narcotic Drugs Treaty, with Australia as a signatory. Australia has not breached this treaty yet, and cannabis remains prohibited unless cultivated for medicinal purposes with an ODC licence. So is Cannibas legal in Australia? The simple answer is no.
Marijuana is not available for purchase over the counter, and strict regulations apply to persons and body corporate permitted to cultivate, manufacture and supply marijuana. The legal cultivation and supply of medical cannabis are limited and supervised with strict security and quality control measures in place. Cultivating cannabis for medicinal purposes is permitted in Australia if a person or corporate body has a medicinal cannabis or research cannabis licence.
The ODC licence provides lawful permission to cultivate cannabis. The licence allows a person or corporate body to apply for a permit. The permit outlines the limits, extent, and type of cannabis permitted to be cultivated or produced.
Section 8A and 8 B of the Narcotic Drugs Amendment Act 2016 (Cth) outline that any person or corporate body must be a fit and proper person to cultivate or produce marijuana or cannabis. A person or body corporate can cultivate and grow marijuana for medicinal use or research if they:
· Do not engage in criminal activity
· Have any previous convictions
· Have previously imposed civil penalties
The Department of Health will also check the applicants:
· Previous Employment
· Available finances to provide sufficient security at the premises
The Therapeutic Goods Act 1989 regulates the supply of medical marijuana to patients. The federal government supplied a framework where a patient can access a cannabis product for medical use. The patient has access through a clinical trial or the Authorised Prescriber Scheme under the Therapeutic Goods Act. State and territory governments govern what cannabis products are to be supplied to clearly defined and specific patients.
The scheme provides easier access to medicinal marijuana for patients and facilitates further medical research on the properties and effects of medicinal cannabis on patients.
The unauthorised use, possession, cultivation, and distribution of cannabis or marijuana for non-medical use are illegal in Australia. The quantities of marijuana and penalties for marijuana offences differ in each state and territory. Some states have decriminalised minor cannabis offences, and the offence is usually dealt with by a fine, not a criminal charge. If the offence is decriminalised, it does not mean that it is legal to possess, sell or use marijuana. It simply refers to the lack of criminal charges. The possession and use of cannabis may be decriminalised, but it remains illegal to cultivate or sell the substance. South Australia, Australian Capital Territory, and Northern Territory have decriminalised cannabis.
Any cannabis offence is criminal in the rest of the States in Australia. A person can receive a hefty fine or jail time if charged with the illegal possession of cannabis in these states. They will also have a criminal record. However, it is unlikely that a person caught with a small amount of cannabis for the first time will receive a criminal conviction; they will be referred to the diversion programmes in these states.
Marijuana Offences and Penalties in NSW
Marijuana Use in NSW
Section 12 of the Drug Misuse and Trafficking Act 1985 (NSW) states that it is an offence to administer or attempt to administer a prohibited drug such as marijuana to yourself, even in the privacy of your own home. First offenders in NSW may only receive a formal caution, but subsequent offences will be treated more seriously, leading to criminal charges. The maximum penalty for using marijuana is a fine of 20 penalty units and/or two years imprisonment, and the matter will be heard in the Local Court.
Administer Marijuana to Other People
Section 13 of the Drug Misuse and Trafficking Act 1985 (NSW) states that it is an offence to administer or try to administer marijuana to another person. The maximum penalty for this offence is a fine of 20 penalty units and/or two years imprisonment, and the matter will be heard in the Local Court.
Possession of Marijuana
It is an offence, according to Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW), to possess a prohibited drug such as marijuana. If a person has a trafficable quantity of marijuana, it is presumed that the person possesses the marijuana for the purpose to supply. The accused have to prove the marijuana was only for personal use. Cautions will be issued for a first offence. A person may be required to attend drug counselling for a second offence, and a third offence will result in criminal charges. The matter will be dealt with in the local Court, and a maximum penalty is a fine of 20 penalty units and/or two years imprisonment.
Supply of Marijuana
According to Section 25 of the Drug Misuse and Trafficking Act 1985(NSW), it is an offence to supply a prohibited drug, and the maximum penalty for the charge of supplying a prohibited drug such as marijuana depends on the quantity of the drug found. The fine can range from 2 000 penalty units and/or ten years imprisonment to 5 000 penalty units and/ or twenty years imprisonment.
The relevant marijuana quantity will affect the penalty an offender will receive and whether the matter will be dealt with in Local Court or in the District Court. The quantities for marijuana are as follows:
Large Commercial Quantity
How many plants can a person grow for personal use in NSW?
A person can grow marijuana in NSW if they have a medicinal cannabis licence under the Narcotics Drug Act 1967 (NSW) for medical purposes. It is illegal to grow any number of cannabis plants in NSW without this licence or permit.
Section 23 of the Drug Misuse and Trafficking Act 1985 (NSW) states a person who cultivates or knowingly takes part in the cultivation of marijuana, supplies, or knowingly takes part in the supply of marijuana or has a prohibited plant in their possession is guilty of an offence. Cultivation refers to sowing or scattering seeds, planting, growing, tending, nurturing, and harvesting marijuana.
The maximum penalties can range from a fine of 2 000 penalty units and/or ten years imprisonment to a fine of 5 000 penalty units and/or twenty years imprisonment. The penalties for cultivating marijuana depend on the number of plants, ranging from 5 plants for a small quantity to 1 000 or more plants for a large commercial quantity.
The number of marijuana plants a person cultivates will affect the penalty the person will receive and the Court that will finalise the matter.
A Magistrate or Judge will take certain factors into consideration for an appropriate sentence for an offence of cultivating marijuana. The Court may impose a more lenient sentence if the offender suffers from drug addiction, which contributed to the person committing the offence. The sentence may also be more lenient if the accused were less involved in the cultivation of marijuana. Conversely, a person may receive a heavier sentence if the person is more involved in the cultivation.
A person’s sentence may be lighter if the period of cultivating was shorter. If the person committed this crime over a longer period, the sentence would be heavier. The smaller the quantity of marijuana cultivated, the more lenient the sentence is likely to be. The maximum penalties also depend largely on the quantity of marijuana.
Cultivating Cannabis or Marijuana by Enhanced Indoor Means for Commercial Purposes
It is an offence to cultivate marijuana by enhanced indoor means for commercial purposes as per Section 23 of the Drug Misuse and Trafficking Act 1985 (NSW). Hydroponically-grown cannabis is more potent than marijuana grown outdoors. The penalties depend on the number of plants, and the penalties can range from a fine of 3 500 penalty units or $385 000 and/or fifteen years imprisonment to a maximum penalty fine of 5 000 penalty units or $550 000 and/or twenty years imprisonment. This offence is strictly indictable and will be dealt with in the District Court.
The number of cultivated marijuana plants will affect the penalty. The quantities range from 5 plants for a small quantity to 200 plants or more for a large commercial quantity.
Division 307 of the Commonwealth Criminal Code Act states that it is an offence to import or export border-controlled drugs. Cannabis or marijuana is a border-controlled drug. The maximum penalty will depend on the quantity imported.
The Criminal Code Act 1995 states three different quantity ranges:
· A person importing or exporting marijuana will face a maximum penalty of 2 000 penalty units and/or ten years imprisonment
· Importing or exporting marketable quantities of marijuana will attract a fine of up to 5 000 penalty units and/or twenty-five years of imprisonment
· A maximum penalty of life imprisonment and/or a fine of $750 000 applies when importing or exporting commercial quantities of cannabis
Marketable quantities are 25kg or 100 plants, and commercial quantities are 250kg or 1 000 plants.
It is important to contact an experienced criminal defence lawyer when you face a marijuana charge. Our drug offence lawyers in Sydney can assist with expert advice on this legal matter. Contact us today.