Cannabis Offences and Penalties in the Australian Capital Territory (ACT)

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There are recent modifications to the cannabis laws that are already running and active.

Cannabis is one of the listed drugs of dependence from the Cannabis Sativa Plant. While it can be locally grown, the government regulates its use and cultivation. Due to its active ingredient - THC, it is easy and common for people to abuse Cannabis.

The Drugs of Dependence Act 1989 (ACT) regulates the use of Cannabis.

Some effects of THC on the human nervous and emotional state made Cannabis illegal many years ago. However, with new laws, it is easier and clearer to regulate cannabis use and describe the offences.

If an individual is convicted in an Australian Capital Territory (ACT) court for a cannabis offence, the offence will show up as a disclosable court outcome (DCO) on an ACT Nationally Coordinated Criminal History Check certificate.

What are Cannabis Offences?

The Drugs of Dependence Act 1989 (ACT) reflects the ACT legislation and descriptions of various activities regarding the Cannabis plant. Any prohibited action under the Act includes all forms of the Cannabis plant where it is used in its leaves (herb) forms or its dried form as extracts.

Part 10 of the Act describes the offences in dealing with Cannabis and stipulates penalties for such offences.

Cultivation of 1 or 2 cannabis plants

It is a violation for a person to naturally or scientifically cultivate a cannabis plant if they are not 18 years or older. Following section 162 of the Act, it carries a maximum penalty of 1 penalty unit (payable in varying fine amounts).

For this section, the artificial cultivation of a cannabis plant is part of the description. It includes where the person;

• Hydroponically cultivates the plant, or
• Uses an artificial agent (light, soil, heat, etc.) to cultivate the plant.

Sale or supply of cannabis plant

Section 164 of the Drugs of Dependence Act 1989 (ACT) makes it illegal for an unauthorised person to sell or participate in the sale of a "drug of dependence". It also includes where the person attempts to sell the drug or possess it for later resale.

It is a violation that carries the maximum penalty of 500 penalty units and five years imprisonment, or both depending on the sevey of the offence.

For this section, even sharing small quantities of Cannabis can be treated as a supply offence. And this makes cannabis tourism almost impossible.

The only exception to s164 of the Act is where the person is authorized through any declarations of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT).

Cannabis Possession

Section 171AA of the Act describes an offence with a punishment of 1 penalty unit if a person possesses;

• Up to 50g of dried Cannabis, or
• Up to 150 g of Cannabis just harvested; not dried, or a mixture of both.

However, this section does not apply if the person was 18 years or above when they were caught with the substance.

However, the punishment increases to;

Fifty penalty units and two years imprisonment if the person possesses more than any of the questions mentioned above.

Cultivating more than four cannabis plants

It is offensive for a person to cultivate more than four cannabis plants at their premises at any given time. Section 171AAA of the Drugs of Dependence Act 1989 (ACT) lists this offence as one that incurs the maximum penalty of 50 penalty units and two years imprisonment or both depending on the severity of the offence.

However, it can be a defence to this charge if the accused person can prove that;

• While they lived on the premises, they could not be reasonably aware that more than four cannabis plants were cultivated at the residence.

Cannabis Plant cultivation

It is also an offence that a person cultivates a cannabis plant at a place other than their premises. It includes where the public can easily access such premises. The violation of growing a cannabis plant on other premises incurs 50 penalty units and two years imprisonment.

Storage of Cannabis

Section 171AAC of the Act lists an offence where a person poorly stores harvested Cannabis, especially where it becomes reachable to children. The penalty for poor storage of Cannabis is 50 penalty units in fines and two years imprisonment or both, depending on the gravity of the offence.

However, it can be a defence to the offence if the accused person proves they took all reasonable steps to ensure the child lacked access to the drug.

Smoking Cannabis in a public area

It is offensive to smoke Cannabis in a public area. It is an offence that incurs the maximum penalty of 30 penalty units in fines.

For this section, a public area is;

• an open space, premises, park or centre. It also includes a private area that the public can easily access.
• Where a child is exposed to the vapour, smoke or particles from the smoke.

It is an offence under section 171AB of the Act that incurs the penalty of 30 penalty units.

For this offence, it includes where the accused person;

• uses a piece of equipment (even not initially made for puffing) to inhale or puff smoke from Cannabis, including where t
• Has control about the product in the Cannabis while it is ignited
• Holds or controls a personal vaporiser that contains Cannabis and is activated.

Actions of authorised personnel or officer

Section 171B of the Act allows the Police officer or others to seize cannabis under the Territory laws. However, following the seizure, the Police officer must issue a standard proclamation.

The declaration allows the defendant to apply the seized Cannabis for preservation before the Magistrate.

And that any seized cannabis will be destroyed without a court order. Such an application must be made within 24 hours of the seizure.

Duties of Law authorities and Police officers

Part 11 of the Act allows for an officer or statutory authorities to conduct a search, seizure or analysis of the area. Section 184 of the Drugs of Dependence Act 1989 (ACT) grants the Police authority to search a site sworn by or under the immediate control of a person.

However, the Police or other legal authorities must obtain a warrant from a Magistrate to search a property.

Section 185 outlines that the Police can also obtain the person's consent before a search. The only exception is an emergency, or it becomes a matter of urgency to search the premises, or with a Warrant.

Offence Notices

If a Police officer reasonably believes a person to commit a simple cannabis offence, section 171A of the Act allows them to serve an offence notice against the person.

Where a child is a recipient, and the police officer believes the child has some legal guardian or locus parentis, they can issue a copy.

Subsection 3 of this section specifies what an offence notice should;

• Report the nature of the charge or offence
• Include the date, time and necessary information when the cannabis offence happened
• Include a written agreement that absolves the offender from further action if they pay the prescribed penalties within 60 days.
• Mention the amount of the prescribed or given penalty under the Act
• Include the location or method of how the prescribed penalties may be remitted.

It should also include the prescribed government action of destroying all Cannabis if there is no court order. Typically, seized Cannabis are destroyed under section 193C of the Drugs of Dependence Act 1989 (ACT) which outlines the destruction of cannabis without a court order.

Destroying a seized Cannabis without Court order

Section 193C of the Act allows the government analyst to destroy seized cannabis plants without a court order. However, all actions must follow the seized cannabis plants protocols; the analyst must also preserve the seized plants according to the seized cannabis plants protocol.

The cannabis analyst must not destroy a seized cannabis plant within 24 hours after the plants are given to an analyst under section 191

Seized properties

Section 197 of the Act permits a person whose property was seized under division 11.3 to recover their property if;

• There is a proceeding within three months of seizure where the substance is proposed as evidence.

Or

• In any other case, after three months from the date of seizure.

This case does not apply where the analyst describes the substance as a drug of dependence or prohibited under chapter 6.

Compensation in the case of a mistaken seizure

Section 196 of the Act outlines that where a seized material is completely disposed of and there is no evidence of an offence (concerning the substance), the ACT Government must pay the equal value amount of the substance to the owner (at seizure).

Changes to the Law

The Modified laws regarding Cannabis use and dealings commenced on the 31st of January 2020. However, these modified laws do not affect some old rules in dealing with Cannabis. For example, it remains a severe offence to;

• Sell, share Cannabis,
• Grow or use cannabis while under 18,
• Drive with Cannabis in your system.

Will a Cannabis Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a cannabis offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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