In 2006, the federal government legalised the cultivation of cannabis with a licence for medicinal purposes. It is now legal to grow marijuana in Australia when you are licenced to do so and under strict controls. However, cultivating cannabis without a licence remains a serious offence in all states and territories. In New South Wales, cannabis offences are governed by the Drug Misuse and Trafficking Act.
Federal licencing scheme
The Narcotic Drugs Act 1967 was amended in 2016 to contain a provision allowing a person to apply for a medicinal cannabis licence (Section 8E). Once a licence has been obtained, the holder is permitted to obtain, produce and cultivate cannabis plants or cannabis resin for medical purposes. The cannabis must be grown and stored under strict controls. The license holder must have a suitable location, facilities and a proposed security arrangement for the operation to take place. To be granted a licence, an applicant must show that they are a fit and proper person, must not have been found guilty of a serious offence in the last 10 years and must show that they will ensure the physical security of the drug.
A range of medical conditions, including epilepsy, MS, HIV and chronic pain, can be treated with medicinal products made from cannabis plant.
Patients wishing to be prescribed cannabis products must obtain a prescription from a doctor who is authorised to prescribe the product. Doctors can apply to the NSW Health Department for this authority.
Medicinal Cannabis Compassionate Use Scheme
The New South Wales government has established the Medicinal Cannabis Compassionate Use Scheme, which provides guidelines for the police to use their discretion not to lay charges against persons with terminal illness or their carers for possession of cannabis. The scheme does not provide or endorse the use of cannabis that is not lawfully prescribed.
A person who is over 18 and has a terminal illness can register for the scheme with verification by a medical practitioner that they have a terminal illness as defined under the scheme. They may nominate up to three persons as carers.
Medicinal Cannabis (Compassionate Access) Bill
A bill to decriminalise the possession and use of cannabis for medical purposes is currently before the New South Wales Parliament.
The offence of cultivating cannabis
When a person grows cannabis otherwise than under the federal licensing scheme, he or she commits an offence. In New South Wales it is an offence to cultivate, supply or knowingly take part in the cultivation or supply of a prohibited plant (Section 23, Drug Misuse and Trafficking Act).
‘Cultivate’ is defined in the Act as including sowing or scattering cannabis seeds and planting, growing, tending or nurturing plants.
The maximum penalty for cultivating cannabis is between 10 and 20 years imprisonment, depending on the quantity cultivated. Charges of cultivating cannabis where the number of plants is less than 250 can be dealt with in the Local Court, where the maximum penalty that can be imposed for a single offence is two years imprisonment. The maximum penalties that can be imposed by higher courts are set out below.
|Number of plants||Maximum penalty|
|Less than 5||10 years imprisonment|
|5 - 50||10 years imprisonment|
|50 - 250||10 years imprisonment|
|250 - 1000||15 years imprisonment|
|More than 1000||20 years imprisonment|
It is a defence to a charge of cultivating a prohibited plant if the accused did not know or suspect and could not reasonably be expected to have known or suspected that the plant was a prohibited plant.
Cultivation by enhanced indoor means
In New South Wales, there is a separate offence comprised of cultivating cannabis for commercial purposes using enhanced indoor means (such as a hydroponic system). For cultivating cannabis in this way, a person faces a maximum penalty of 15 years imprisonment if there were more than five plants cultivated. However, prosecution must prove that the plants were being grown for commercial purposes.
If you require legal advice or representation please contact Go to Court Lawyers.