Cultivating Cannabis in South Australia
In South Australia, it is an offence to cultivate cannabis unless a person does so with a medicinal cannabis license and in accordance with strict rules and controls. This page outlines the laws surrounding cultivating cannabis in South Australia, both when it is done lawfully and when it amounts to a criminal offence.
Medicinal cannabis in South Australia
Since 2016, it has been possible to grow cannabis legally in Australia for medicinal purposes. A person can apply for a license to grow medicinal cannabis under the Narcotic Drugs Act 1967.
Section 8A of the Narcotic Drugs Act 1967 sets out the matters that must be taken into account in determining whether a person is a fit and proper person for the purpose of issuing a medicinal cannabis license. The person must not have committed a serious offence in the last 10 years and must be able to comply with the conditions of the license, among other requirements.
When a person is issued with a license, they are permitted to obtain, produce and cultivate cannabis plants or cannabis resin for medical purposes. The product must be grown and stored under strict controls. They licensee must have a suitable location, facilities and a proposed security arrangement for the operation to take place.
Cannabis products may be prescribed by doctors who are authorized to do so. This may be for a patient who has epilepsy, MS, chronic pain, HIV, or some other condition or symptom. An application for the authority to prescribe medicinal cannabis products can be made to the Health Department.
Cultivating cannabis offences
In South Australia, drug offences are set out in the Controlled Substances Act 1984. That act contains offences relating to the possession, supply, manufacture and cultivation of various illicit drugs. Offences involving cannabis cultivation are simple offences, basic offence or aggravated offences.
Simple, aggravated, or basic?
A simple cultivating cannabis offence is one that involves the cultivation of only one cannabis plant. When a person commits a simple cannabis offence, they may be issued with a Cannabis Expiation Notice by the police, rather that being summoned to attend court. For a simple cultivating cannabis offence, there is an on-the-spot fine of $400.
An aggravated offence is an offence that is committed for the benefit of or in connection with a criminal organization. An offence that is not aggravated but where there is more than one plant involved is known as a simple offence
What does ‘cultivate’ mean?
Under section 4 of the Controlled Substances Act 1984, ‘cultivate’ means:
- Plant a seed, seedling or cutting or transplant a plant;
- Nurture, tend or grow a plant;
- Harvest a plant;
- Dry the harvested plant;
- Take part in the process of cultivating the plant.
Cultivating controlled plant
Under section 33K of the Controlled Substances Act 1984, a person is guilty of an offence if they cultivate:
- A controlled plant other than cannabis;
- Cannabis using artificially enhanced cultivation;
- More than
- Cannabis with the intention of supplying it to another person.
The maximum penalties that apply to these offences are set out in the table below.
| Offence | Circumstances | Maximum penalty |
|---|---|---|
| Simple offence (one plant only) | - | $2000 fine |
| Cultivating more than one cannabis plant (basic offence) | Where offender is a serious drug offender | $5000 fine, imprisonment for five years, or both |
| Cultivating more than one cannabis plant (basic offence) | In any other case | $2000 fine or imprisonment for two years, or both |
| Cultivating more than one cannabis plant (aggravated offence) | - | $5000 fine, imprisonment for five years, or both |
Cultivating controlled plant for sale
Under section 33B of the Controlled Substances Act 1984, a person is guilty of an offence if they cultivate a large commercial quantity of a controlled plant with the intention of selling their products or believing that another person intends to sell them. This offence is punishable by a maximum penalty of life imprisonment, a fine of $1,000,000, or both.
A person who cultivates a commercial quantity of a controlled plant with the intention of selling their products or believing that another person intends to sell them is guilty of an offence.
A person who cultivates a controlled plant with the intention of selling their products or believing that another person intends to sell them is guilty of an offence.
The maximum penalty that applies to these offences depends on the circumstances. These penalties are set out in the table below.
| Offence | Basic or aggravated offence | Circumstance | Maximum penalty |
|---|---|---|---|
| Cultivating a commercial quantity | Basic offence | Where offender is a serious drug offender | $500,000 fine or imprisonment for life |
| Cultivating a commercial quantity | Basic offence | In any other case | $200,000 fine or 25 years imprisonment |
| Cultivating a commercial quantity | Aggravated offence | - | $500,000 fine or imprisonment for life |
| Cultivating a controlled plant | Basic offence | Where offender is a serious drug offender | $75,000 fine, imprisonment for 15 years, or both |
| Cultivating a controlled plant | Basic offence | In any other case | $50,000 fine, imprisonment for 10 years, or both |
| Cultivating a controlled plant | Aggravated offence | - | $75,000 fine, imprisonment for 15 years, or both |
Jurisdiction
When a person is charged with cultivating a controlled plant and the quantity involved is smaller than a commercial quantity, the matter will be dealt with as a summary offence in the Magistrates Court. However, if the magistrate considers that the offence requires a penalty of more than five years imprisonment, the matter must be committed to the District Court for sentence.
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