Legal
Information
2009 Plain Language / Revised Version
Pot & The
Law
Mardi Grass 2009
There are separate offences for possession, use, cultivation
or supply of pot.
Penalties
Supply is usually considered more serious than cultivation,
and cultivation is usually considered more serious than possession.
The penalty for a drug offence depends mostly on the type of
offence (that is, supply, cultivation or possession), and then
the quantity of drugs involved and your prior record.
A first offender pleading guilty to possession of a small amount
of pot might have no conviction recorded against them, or get
a fine. Someone convicted of supply, especially if it is not
their first supply offence, would likely go to jail.
What do you say to the police?
You do not have to say anything to the police, whether they
arrest you or not, apart from your name, age and address.
The best advice is to say something like, ‘I do not wish
to say anything until I get legal advice”. Beware of small
talk and being trapped into a conversation. Just tell them your
name, age and address.
If you admit anything (or say something that sounds like you’re
admitting something), the police can use that in evidence against
you.
The law of possession
To prove possession, the police must prove that you knew that
you had the drug in your custody or under your legal control.
Depending on the circumstances, it might be difficult for the
police to prove that you must have known about the presence
of the drug.
In cases involving more than one person having potential access
to the drugs - for example, shared houses - the
police must rule out, beyond reasonable doubt, that another
person might be the one in possession of the pot.
Police questions will be aimed at getting you to admit to things
they otherwise might not be able to prove.
Neither snow nor rain nor heat
nor gloom of night stays these drug testing winnebagoes
from the swift completion of their appointed rounds...
Cautions
If you have less than 15 grams of pot AND you have no prior
convictions AND you admit that the pot is yours, you might get
a caution (instead of having to go to court).
Random Roadside Testing
The police have the power to randomly drug test drivers, for
cannabis, amphetamine and ecstasy, by saliva swab.
If the initial test indicates positive, you have to give a
second swab which is tested in a specially equipped drug bus.
If that second swab shows positive, the sample is sent to a
laboratory for analysis. You do not get arrested, but you are
not permitted to drive for 24 hours. If the laboratory confirms
the presence of the drug, you will be sent a notice to attend
court.
The maximum penalty for driving with the “presence”
of one of these drugs in your system is a $1,100 fine and 3
months minimum licence disqualification.
Supply
Supply includes selling, giving away, agreeing to supply. Technically,
sharing pot is also supply.
If the police can prove that you were in possession of 300
grams of pot or more (the amount deemed to be intended for supply),
you must prove that your possession was not for supply (for
example, personal use).
Cultivation
Cultivation means some activity to assist growing or harvesting.
Cultivation of cannabis can include planting or watering or
fertilising.
There is also an offence of possessing cannabis plants, with
the same maximum penalty as cultivation.
Hydroponic plants
There is now a separate offence of cultivation of hydroponic
plants. The maximum penalties are substantially higher than
for cultivating an equivalent number of outdoor plants. But
the police must prove that the indoor cultivation was “for
a commercial purpose” (which is not necessary in outdoor
cultivation cases).
Searches
Police are legally entitled to enter and search private property
if they have a search warrant, or if they are invited on by
one of the occupiers.
The police have the power to search you personally, without
a warrant, if the police believe on reasonable grounds that
you might be in possession of pot.
Sniffer dogs
The police can use sniffer dogs in some places (on trains and
buses, and on or near railway stations and bus terminals, in
licensed premises, at dance parties and music festivals) without
a warrant. In other places, for example on the street, they
need a warrant to use a dog for drug detection.
TAKE CARE
"DECRIMINALISED"
STATE DRUG LAWS
Some States and the Territories have implemented automatic
set penalties for less serious cannabis offences. This is sometimes
misleadingly referred to as “decriminalisation”.
The details vary between jurisdictions, but the general idea
is that police can issue you with a form of infringement notice
to pay a set fine within the specified time.
If you pay the fine, there is no further
action and no conviction recorded against you??. If you do not
pay the fine, you will be taken to court and be liable to punishment
in the usual way.
Some of the details of these set penalty
schemes are shown below.
Offences involving larger quantities
of cannabis than those specified, or offences involving other
prohibited drugs, are dealt with by the courts.
South Australia
The police can issue an infringement notice (called a “simple
cannabis notice”???) for the following offences:
Possession - leaf
less than 25 grams $50.
more than 25 but less than 100 grams $150
Possession - hashish
less than 5 grams $50.
more than 5 but less than 100 grams $150
Cultivation
one plant $150
Smoking (except in public) $50
Possession of equipment $50
The fine must paid within 28 days
s. 45A Controlled Substances Act 1984 (SA) and reg 6 Controlled
Substances (Expiation of Simple Cannabis Offences) Regulation
2002 (SA)
ACT
The police can issue an infringement notice (called a “simple
cannabis notice”???) for the following offences:
Possession - leaf
less than 25 grams $100
Cultivation - not hydro
one plant $100
The fine must paid within 60 days
Section 171A Drugs of Dependence Act 1989 (ACT)
Northern Territory
The police can issue an infringement notice (called a “simple
cannabis notice”???) for the following offences:
Possession - leaf
50 grams $200
Possession - hashish
10 grams resin $200
1 grams oil $20
Cultivation
two plants $200
The fine must paid within 28 days
Pt IIB Misuse of Drugs Act 1981
Western Australia
The police can issue an infringement notice, called a “Cannabis
Infringement Notice (CIN), for the following offences:
Possession - leaf
15 grams $100
30 grams $150
Cultivation
two plants - not hydro $200
Smoking (except in public) $50
Possession of equipment $100
Or you can elect to complete a Cannabis Education Session (CES).
The fine must be paid, or the CES undertaken, within 28 days,
but this period may be extended.
Cannabis Control Act 2003 (WA) and Cannabis Control Regulation
2004 (WA)
