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Marijuana and the Law

You may well have heard someone say “Marijuana is legal now – it is legal in Canberra, it has been decriminalised in New South Wales. You just aren’t allowed to sell it.” Is this true?

Well, in simple terms – no! Marijuana (or ‘cannabis’ as it is known in law enforcement circles) is illegal everywhere in Australia. The penalties that one can incur for having, selling or growing marijuana varies a lot from State to State.

We have set out below the State by State position so that the bigger picture of laws relating to cannabis in Australia can be shown.

New South Wales

  • Any cannabis offence is a criminal offence and therefore can carry a criminal record.
  • Cautions may be given at police discretion to persons found with up to 15 grams of cannabis, on up to two occasions.
  • Cautions are accompanied by information regarding cannabis usage and a number for an advice line.

Victoria

  • Cannabis offences are criminal offences, but are tried in a specialised drug court rather than a regular criminal court.
  • It is at the discretion of the arresting officer whether to charge a person found with less than 50 grams cannabis or refer them to a ‘diversion’ program for help and education, this discretion by the police is only given on two occasions.

Queensland

  • Possession and use of cannabis is a criminal offence in Queensland.
  • A person found to have less than 50 grams of cannabis must be offered a drug diversion program on their first offence.

Western Australia

  • Cannabis offences are criminal offences in Western Australia, where it has some of the toughest laws in Australia regarding cannabis use.
  • A person found to have less than 10 grams of cannabis or a used smoking instrument (such as a pipe or water pipe) must attend a Cannabis Intervention session within 28 days or they will receive a criminal conviction.

Tasmania

  • Possession of cannabis carries a criminal charge in Tasmania.
  • A person found with up to 50 grams of cannabis can be cautioned, at the police officer’s discretion, up to three times in ten years.
  • The nature of each caution differs, growing in severity from the person being given information in the first instance to the possibility of being sent for treatment for drug use in the third instance.

South Australia

  • Minor cannabis offences have been decriminalised in South Australia. This does not mean it is ‘legal’.
  • In South Australia, Police may issue a Cannabis Expiation Notice to an individual who commits a simple cannabis offence. This includes:
    • possession of up to 20 grams of cannabis resin (hash)
    • possession of up to 100 grams of cannabis
    • smoking cannabis in private
    • possession equipment relating to smoking cannabis such as a pipe or bong; or
    • cultivating a non-hydroponic cannabis plant
  • In addition to user offences, there are a range of offences relating to the manufacture, cultivation and sale of controlled drugs, plants or precursors.
  • Under the Controlled Substances Act 1984 (SA), it is an offence to:
    • manufacture a controlled drug intending to sell any of it or believing another person intends to sell it;
    • sell a controlled precursor, believing that the buyer or someone else intends to use any of it to unlawfully manufacture a controlled drug;
    • cultivate controlled plants intending to sell them or their products or believing another person intends to sell it;
    • sell or intend to sell controlled plants.
  • Basic offences involving commercial quantities attract a maximum fine of $200,000 and/or 25 years imprisonment whereas offences involving large commercial quantities attract a maximum fine of $500,000 and/or life imprisonment.

Northern Territory

  • Cannabis has been decriminalised in the Northern Territory, however it is still illegal.
  • Persons found in possession of up to 50 grams of cannabis or 1 gram of hash or cannabis seeds or two non-hydroponic plants can face fines of up to $200 and 28 days to pay the fine to avoid a charge.

Australian Capital Territory

  • Cannabis has been decriminalised in the Australian Capital Territory but is still not legal.
  • Persons found with less than 25 grams of cannabis or up to two non-hydroponic cannabis plants are offered the choice to pay a fine or attend a treatment program.

Cannabis or Marijuana is not legal in any State or Territory of Australia.

Contrary to what seems to be a reasonably popular belief, there is nowhere in Australia where marijuana and its products are legal to grow, possess or sell. When examined on a State-by-State basis, it is clear that while in some States and Territories the personal use of marijuana has been decriminalised, users and possessors still face repercussions if they decide to use or possess any cannabis or cannabis related products.

If you or someone you know wants more information or needs help or advice, please contact us on 08 8210 5400 or email lawyers@georgiadis.com.au.

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