In Australia, drugs and poisons are grouped together in Schedules that require similar regulatory controls over their availability.
CANNABIS is prohibited except when:
(a) when separately specified in these Schedules; or
(b) processed hemp fibre containing 0.1% or less of tetrahydrocannabinol and products manufactured from such fibre.
Cannabis is Schedule 9.
Prohibited Substance – Substances which may be abused or misused, the manufacture, possession, sale or use of which should be prohibited by law except when required for medical or scientific research, or for analytical, teaching or training purposes with approval of Commonwealth and/or State or Territory Health Authorities.
Nabiximols and Dronabinol are Schedule 8.
# NABIXIMOLS (botanical extract of Cannabis sativa which includes the following cannabinoids: tetrahydrocannabinol, cannabidiol, cannabinol, cannabigerol, cannabichromene, cannabidiolic acid, tetrahydrocannabinolic acid, tetrahydrocannabivarol, and cannabidivarol, where tetrahydrocannabinol and cannabidiol (in approximately equal proportions) comprise not less than 90 per cent of the total cannabinoid content) in a buccal spray for human therapeutic use.
# DRONABINOL (delta-9-tetrahydrocannabinol) when prepared and packed for therapeutic use.
(# Additional controls) Poisons available only from or on the prescription or order of a medical practitioner authorised or approved by the Secretary of the Commonwealth Department of Health and Ageing under section 19 of the Therapeutic Goods Act 1989.
Source: Poisons Standard 2012. http://www.comlaw.gov.au/Details/F2012L01200
In the USA, Cannabis is classified as Schedule I which is equivalent to Australia’s Schedule 9 or the most restrictive classification.
The Single Convention on Narcotic Drugs of 1961 is an international treaty to prohibit production and supply of specific (nominally narcotic) drugs and of drugs with similar effects except under licence for specific purposes, such as medical treatment and research.
The Single Convention repeatedly affirms the importance of medical use of controlled substances. The Preamble notes that “the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes”. Articles 1, 2, 4, 9, 12, 19, and 49 contain provisions relating to “medical and scientific” use of controlled substances. In almost all cases, parties are permitted to allow dispensation and use of controlled substances under a prescription, subject to record-keeping requirements and other restrictions.
Australian State laws on the possession, supply and cultivation of Cannabis vary from state to state.
Under NSW law, Cannabis is a “prohibited drug”. It is an offence to possess, use, supply, or cultivate it. It is also an offence to possess implements for the use of Cannabis.
To prove a charge of drug possession, the prosecution must prove that you had knowledge of the drug and custody or control over it. In other words, they must prove that:
you had the drug in your physical custody (for example, in your pocket), or at least under your control (such as in your bag, or in a locker you have the key to)
and you that knew that you had the drug in your custody or control.
”Supply” is defined in the legislation to include a wide range of conduct: selling, giving away, agreeing to supply or (technically) sharing pot is classed as supply. ”Supply” also includes being in possession of a quantity of drug which is “deemed” to be intended for supply. In a deemed supply case, you must prove in court that the possession was for reasons other than supply (for example, personal use). In the case of cannabis, the deemed supply amount is 300 grams.
It is an offence to cultivate cannabis. Cultivation means some activity to assist growing or harvesting. It includes planting or watering or fertilising. Even growing one cannabis seedling is an offence.
It is also an offence to possess cannabis plants (which has the same maximum penalty as cultivation).
There are higher penalties – and trial by judge and jury – for cultivating or possessing more than 250 plants. Cases involving fewer than 250 plants are heard by a magistrate in the Local Court.
Recent changes to the law have created a separate offence of cultivation of hydroponic plants. For cultivating as few as 5 cannabis plants “by enhanced indoor means”, the maximum penalty is 15 years jail and a $385,000 fine (and 20 years jail for cultivating 200 or more hydroponic plants). But the prosecution must prove the cultivation was “for a commercial purpose” (which is not necessary for outdoor cultivation cases).
Possessing or supplying cannabis cookies or other food with cannabis cooked in is illegal.
Bizarrely, the drug law strictly treats cookies as if they were pure cannabis. So, because weight determines the nature of the criminal charge, you could theoretically be charged with “deemed supply” if you possess more than 300 grams of cookies, even though you are mostly possessing chocolate and flour and butter. In these situations, the police can and would charge you only with possession.
If you are arrested
You do not have to answer police questions or make a statement, even after you are arrested. Just give your name and address so that bail can be granted. Remember that the police must prove your guilt – anything you say may make it easier for them to do just that. Generally it is better to say nothing until you have had legal advice.
The police have the power to issue cautions (rather than take you to court) for possession offences where the amount of marijuana involved is 15 grams or less, and where you have no prior convictions, and you are not being charged with another offence, and you admit guilt. If you are cautioned twice, you must attend compulsory drug counselling. On the third occasion, you must go to court.
Police are legally entitled to enter private property if they have a search warrant, or if they are invited in by one of the occupiers. A search warrant gives police the power to search anybody found on the premises, to use reasonable force to break open doors and cupboards, and to seize and remove any illegal items discovered.
The police have the power to search you in a public place, without a warrant, if the police believe on reasonable grounds that you might possess a prohibited drug (or a knife, or evidence of a crime).
Random Roadside Testing
The police have the power to randomly drug test drivers, although only for cannabis, amphetamine and ecstasy. The testing is by saliva swab, with a screening test at the driver’s window.
If the initial test indicates positive to THC, amphetamine or ecstasy, you have to give a second swab which is tested in a specially equipped Winnebago drug bus. If that second swab shows positive, the sample is sent to a laboratory for analysis. You do not get arrested, although you are not permitted to drive for 24 hours. You will be sent a court attendance notice after laboratory results have confirmed the presence of the drug.
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 (the same penalty as for low range drink driving). It is an offence to refuse to provide a saliva sample or to fail to stop for a roadside drug test when requested by police.
Generally speaking, it is legal for police to use sniffer dogs (although sometimes the need a warrant.). There is legislation which authorises police use of dogs for “drug detection” 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.The same legislation requires the police to obtain a warrant to use sniffer dogs in other situations, for example to conduct random street searches. The police might obtain a warrant to use sniffer dogs on “high visibility” street patrols.The courts have ruled that the action of a police dog sniffing a person or an object does not amount to searching.
The quantity of drugs involved determines both the maximum penalty for the offence, and whether the case is heard in the Local Court or the District Court.
The maximum penalty for use or possession is a fine of $2,200 and/or 2 years jail.
The maximum penalty for supply or cultivation depends on the quantity involved. As an example, the maximum penalty for the supply of 400 grams is a fine of $11,000 and/or 2 years jail. The maximum penalty for cultivating or possessing 300 plants is a fine of $385,000 and/or 15 years jail.
These are maximum penalties – the actual penalty imposed will usually be considerably less, especially for a first offender.
For people with little or no criminal record, the penalty for possession of small quantity of pot might be to have “no conviction recorded” (a “section 10”) – or alternatively, a fine of several hundred dollars. For cultivation of a few plants: a fine or a good behaviour bond.
If larger quantities are involved, or you have more of a record, or if you are convicted of supply or cultivation, you can expect higher penalties.
The State laws vary significantly. If you are outside of NSW, then search for them within your State Government web site.