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Possession of Cannabis Legalised (ACT)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

The ACT Parliament yesterday passed legislation that will make possession of cannabis legal, provided it is a small amount for personal use. The laws will come into effect on 31 January 2020. The change makes the ACT the first Australian jurisdiction to legalise personal use of cannabis, following 11 US states and numerous countries including Spain, Portugal and Peru.

The changes are contained in the Drugs of Dependence (Personal Cannabis Use) Bill 2018, a private member’s bill that was introduced by Labor.

Why the changes?

The ACT government has released a statement to the effect that it does not support or condone the use of drugs. However, it states that the outright prohibition model of drug policy has failed as cannabis use is prevalent in the Australian community. A harm minimisation approach has been effective in other jurisdictions.

The changes follow extensive research indicating that the negative health effects of cannabis are much less serious than those of alcohol and that cannabis is not a particularly harmful substance.

What do the changes mean?

In the ACT, starting in January 2020, possession of cannabis will be legal where a person has up to 50 grams of dried cannabis or up to 150 grams of cannabis that is not dried. It will be legal for a person to possess up to two cannabis plants and for a household to have a maximum of four cannabis plants.

The maximum quantities permissible are the same regardless of whether the person has a medical reason for consuming cannabis.

What do the changes not mean?

The new laws do not establish a legal market for cannabis. The laws mean only that a person who buys cannabis (in the prescribed quantity) and uses it for themselves is not committing an offence. However, the person selling it will still be committing an offence.

The Labor MP who introduced the Bill, Michael Pettersson, has indicated that he thinks the idea of commercialising cannabis in the future has merit. However, at present this is not possible under federal laws.

Cultivating cannabis offence

The existing offence of cultivating cannabis, which is contained in Section 618 of the Criminal Code 2002, will remain unchanged. Under that provision, it is an offence punishable by a fine of 200 penalty units or imprisonment for two years to cultivate more than three cannabis plants.

New cannabis offences

The new legislation introduces the following new offences:

Possession of cannabis

Under the new laws, it will be an offence to possess more than two cannabis plants, more than 50 grams of dried cannabis or more than 150 grams of cannabis that is not dried.

Possession of cannabis will also be an offence if you are below the age of 18.

Cultivating cannabis

Under the new laws, it will be an offence for a person to cultivate cannabis in a place other than where the person lives. It will also be an offence to cultivate cannabis in an area lawfully accessible to the public.

Storage of cannabis

The new laws will create an offence of harvesting cannabis and storing it within reach of children.

Smoking near a child

The new laws will also make it an offence to smoke cannabis in public or so near a child that the child is exposed to smoke or vapour.

Federal laws

Cannabis remains a prohibited substance under federal laws and persons in the ACT may still be charged with offences against those laws. However, prosecutors have indicated they will respect the position of the ACT government on cannabis offences. The changes have been criticised as having the potential to cause confusion among citizens and ACT police due to the inconsistency with federal law.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.

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