ACT Passes Legislation for Personal Cannabis Use and New Cannabis Offences

Tuesday 1 October 2019 @ 1.41 p.m. | Crime | Legal Research

On 25 September 2019, the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 (ACT) (‘the Bill’) was passed by the ACT Legislative Assembly. The Bill was first introduced as a private member’s bill to the Assembly on the 28 November 2018 by Michael Pettersson, the local Labor member for the seat of Yerrabi. Originally, the Bill was set to commence on 1 July 2019, however since this date had passed, the Bill was amended, as proposed by private member Shane Rattenbury, so as to change the date of commencement to a day that will be fixed by the Minister by written notice.

Once assented, the Bill will enforce the amendment and introduction of the offences listed below within the Drugs of Dependence Act 1989 (ACT) (‘the Drugs Act’). Furthermore, the Bill will make consequential amendments to the Criminal Code 2002 (ACT) and Medicines, Poisons and Therapeutic Goods Act 2008 (ACT).

Cultivation

The new section 162(1A) of the Drugs Act will provide that the offence of cultivation of 1 to 2 cannabis plants under section 162 will no longer apply if the person is 18 years old or older and cultivates the plants in the ACT. When first introduced, the Bill also proposed an increase to the legal maximum amount for cultivation to 4 plants. However the Assembly amended the Bill to retain the limit of a maximum of 2 plants in order to be consistent with the settings of the current Simple Cannabis Offence Notice scheme.

The government sponsored amendments proposed by the Chief Minister, Andrew Barr  (‘the Minister’), amended the Bill to create three new offences. Firstly, the new section 171AAA of the Drugs Act will create a new strict liability offence for the cultivation of more than 4 cannabis plants at premises. A defence will be made available through section 171AAA(3) provided the defendant lived on the premises during the cultivation period but was not aware and could not reasonably have been expected to be aware that the amount of cultivated cannabis exceeded 4 plants.

Secondly, the new section 171AAB of the Drugs Act will create a new offence of cannabis plant cultivation where a person cultivates a cannabis plant at a place other than their place of residence or in an area lawfully accessible to the public.

Thirdly, the new section 171AAC of the Drugs Act will create a new offence for the storage of cannabis where a person in possession of harvested cannabis does not store the cannabis out of reach of children with a defence available when the defendant pursued all reasonable steps to prevent child access to the cannabis.

All three offences will incur a maximum penalty of 50 penalty units, 2 years imprisonment or both. Furthermore, Chapter 2 of the Criminal Code 2002 (General Principles of Criminal Responsibility) will apply to all three offences as per Section 4 of the Drugs Act.

Possession

The Bill will introduce a new offence of possessing cannabis under section 171AA(1) of the Drugs Act where possession of either:

  1. 50g or less of cannabis or,
  2. 150g or less of harvested cannabis which does not contain dried cannabis

will constitute an offence with a maximum penalty of 1 penalty unit.

The Bill will introduce a new offence of possessing cannabis under section 171AA(2) of the Drugs Act where a possession of either:

1. More than 50g of dried cannabis or,

2. More than 150g of harvested cannabis which does not contain dried cannabis

will constitute an offence with a maximum penalty of 50 penalty units, 2 years imprisonment or both. Both offences do not apply to authorised possession of cannabis and section 171AA(3) exempts persons who are 18 years old or older and possess the cannabis in the ACT.

Both offences were amended by the Assembly. In its original form, the Bill proposed to amend section 171 of the Drugs Act relating to offences of possession of prohibited substances by removing the offence of cannabis possession of an amount less than 50g and excluding cannabis from the definition of prohibited substances under this section. When introduced, the Bill stated possession of a maximum amount of 50g of cannabis by a person under 18 years old would constitute an offence with a maximum penalty of 1 penalty unit. If the amount in possession exceeded 50g the maximum penalty would have been 50 penalty units or 2 years imprisonment.

Smoking Cannabis in a Public Place or Near a Child

Once assented, the Bill will introduce a new offence of smoking cannabis in a public place or near a child under Section 171AB of the Drugs Act. The offence applies where a person smokes cannabis in a public place or where a child is exposed to smoke or vapour from the cannabis the person is smoking. A public place is defined under the Smoke-Free Public Places Act 2003 (ACT) as any place such that some or all members of the public have access whether by payment, membership, entitlement or permission.

The Bill, as it was initially introduced, stipulated a proximity test of 20 metres from a child however this was rejected by the Assembly. Further, the Assembly amended the Bill to provide two defences to the prosecution when either:

  • The defendant proves all reasonable steps were taken to prevent exposure of the child to smoke or vapour
  • The defendant believed on reasonable grounds that the child was older than 18 years old.  The defence implies a required mental element to the offence as opposed to the circumstantial element required in the Bill as it was introduced.

The new offence will impose a maximum penalty of 30 penalty units. The offence will include conduct such as holding an activated personal vaporiser with cannabis, having control over a cannabis product and puffing smoke or vapour from cannabis with or without the aid of an inhalation device such as a pipe, hookah, bong or cigarette holder.

Support for the Bill

In his Second Reading Speech, Mr. Pettersson referred to several justifications for the Bill including the adaptation to new societal standards, the community desire for change, benefits of decriminalisation, reduction of stigmatisation, a shifting the legal perspective of cannabis use from a criminal justice issue to a health issue, the creation of barriers to organised crime and the effectiveness of a harm minimisation approach.

The supplementary explanatory statement presented by the Minister in regards to the government's amendments stated:

The ACT Government does not condone or encourage the recreational use of cannabis or other illicit drugs. This is a message we will continue to share with the Canberra community both in the context of this legislation, and more broadly. However, we must also acknowledge that the outright prohibition model of drug policy is not working, as cannabis use is prevalent across Australia and within the ACT. There is good evidence from drug law reform around the world that a harm minimisation approach delivers better outcomes both for individuals and communities. This is why the ACT Government is taking a harm minimisation approach by supporting the Private Members Bill and introducing a range of amendments to add further safeguards and protections for the community.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 and explanatory material, available from TimeBase's LawOne service

Standing Committee on Health, Ageing and Community Services Inquiry (Standing Committee on Health, Ageing and Community Services, ACT Parliament)

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