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ACT Drug Laws: Exploring the Offences & Penalties
Andrew Byrnes Law Group • Oct 11, 2023
Have you been caught in possession of a controlled substance? Are you facing charges for drug-related offences? If so, it is important to understand the laws and penalties surrounding illicit drugs in the Australian Capital Territory (ACT).
The drug laws in the ACT have been a topic of debate for many years and are constantly changing to accommodate the ever-evolving nature of drug use and supply. That's why in this blog, we will discuss the current status of drug laws in the ACT, with a particular focus on drug decriminalisation.
We will also explore the different types of drug offences and their corresponding penalties as you seek legal representation from a highly rated criminal lawyer in Canberra in case you find yourself facing drug charges in the ACT. But before we get into the specifics of these laws, let’s take a look first at the recent developments regarding drug decriminalisation in the ACT.
What are the latest updates about Drug Decriminalisation Laws in the ACT?
The ACT government has recently implemented drug decriminalisation laws regarding drug possession. According to the Drugs of Dependence (Personal Possession) Amendment Act 2022, the penalties for personal possession of illicit drugs in small amounts will be reduced in the ACT starting October 28, 2023.
As stated in the legislation, the ACT drug decriminalisation aims to provide support and health services to drug users while offering an alternative to the punitive approach of the traditional criminal justice system. In this decision by the ACT government, drug use won’t be criminalised, but instead, drug use and dependence will be treated as a health and social issue rather than a criminal offence. Hence, the focus will shift to drug treatment or health-based and community interventions.
Penalties for personal possession of small amounts will be substantially reduced. In many cases, law enforcement officers may choose to use diversion or issue a fine to individuals, although they still have the authority to make an arrest. The decision on which action to take remains within the discretion of the police.
If the situation is brought to court, the person will be subject to a maximum fine of $160 or 1 penalty unity instead of facing imprisonment. This is a reduction from the previous penalty of 50 penalty units and/or two years of imprisonment.
At any rate, while drug possession has been decriminalised, it's important to note that it will still remain illegal. Hence, it is still an offence to possess, use, and supply drugs.
How much drugs can you carry in the ACT?
Once the drug law reform takes effect, individuals in the ACT may carry the following drugs but in limited quantities. Individuals who will be caught in drug possession of more than the required 'small quantity' as listed in the table below will be issued with a Simple Drug Offence Notice.
| Drug | Small quantity |
|---|---|
| Amphetamine | 1.5g |
| Cocaine | 1.5g |
| Methylamphetamine (‘ice’ or ‘meth’) | 1.5g |
| 3,4 Methylenedioxymethylamphetamine (MDMA or ‘ecstasy’) | 1.5g |
| Cannabis (dried)* | 50g |
| Cannabis (harvested cannabis)* | 150g |
| Heroin | 1g |
| Lysergic acid | 0.001g |
| Lysergide (LSD, LSD-25) | 0.001g |
| Psilocybine (‘magic mushrooms’) | 1.5g |
Under the drug law reform, drugs will be confiscated and the person caught will be issued a fine of $100 or will be obligated to attend a harm reduction session aimed at providing education and support to individuals with drug issues. The drug law reform also lowers the maximum prison sentence for personal possession of small amounts.
Furthermore, voluntary treatments may also be referred to the offenders. For subsequent offences, more serious penalties may apply.
What are the different penalties for drug offences in Australia?
The ACT government uses various legislative instruments for drug offences which include the Drugs of Dependence Act 1989, the Criminal Code 2002 (ACT) and the Medicines, Poisons and Therapeutic Goods Act 2008.
Drug Possession
Under the Drugs of Dependence Act 1989, possession of prohibited substance is considered an offence unless it is authorised under the Medicines, Poisons and Therapeutic Goods Act 2008). However, it is important to note that the term "drug possession" is broad. Let's take a closer look.
What is considered as drug possession?
In the context of drug law, possession of drugs refers to possession of any controlled substance, which includes not only cannabis but also other various illicit drugs. This include:
- Possession of a controlled substance
- Exercising control or authority over an illicit drug
- Storing prohibited drugs within your premises or vehicle
Examples of drugs of dependence include:
- cocaine
- methadone
- methylamphetamine
- morphine
- oxycodone
- remifentanil
Possession of prohibited substance
Under Section 171 of the Drugs of Dependence Act 1989, possession of prohibited substances is a criminal offence unless the person is authorised by the Medicines, Poisons and Therapeutic Goods Act 2008.
Examples of prohibited substances include:
- cannabis
- heroin
- coca leaf
- Dimethyltryptamine or DMT
Penalties for possessing illicit drugs
Depending on how serious the offence is, the ACT policing has the authority to issue a Simple Drug Offence Notice to the offender. In this notice, the police will issue such notice in cases where the individual was found to be in possession of:
- Up to 50 grams of dried cannabis
- 2 non-artificially cultivated cannabis plants
- The drug was intended for personal use
A simple drug offence notice has an equivalent fine of $100, to be paid within 60 days. However, in the event that the offender fails to fulfill the payment, legal proceedings will be initiated, resulting in a $150 penalty fine and a criminal conviction.
Meanwhile, possession of other controlled drugs entails 50 penalty units that is equivalent to $7,500 fines, and/or 2 years imprisonment.
What is considered as cannabis possession?
Under the Controlled Substances Act 1984 s.45A, the simple cannabis offence pertains to the possession of:
- up to 100 grams of cannabis
- 20 grams of cannabis resin
- smoking cannabis privately
- possession of equipment such as pipes and bongs
- growing a maximum of one cannabis plant
Penalties for possessing a larger quantity of cannabis plants:
Penalties for large numbers of plants are as follows:
- Less than 25 grams of cannabis demands for an expiation fee of $250
- Between 25 and 100 grams of cannabis demands for an expiation fee of $400
- Less than 5 grams of resin demands for an expiation fee of $250
- Between 5 and 20 grams of resin demands for an expiation fee of $400
- For smoking or consumption in private demands for an expiation fee of $250
- For pipes or other equipment (provided it is not for commercial purposes) demands for an expiation fee of $250
- For pipes or other equipment (if there are other offences) demands for an expiation fee of $130
- Non-commercial cultivation (1 plant only, but not hydroponically cultivated) demands for an expiation fee of $400
Drug Use
If you are charged with an offence of possessing cannabis, then the criminal justice system may also press charges for drug use or the use of cannabis. By drug use, it involves actions such as smoking, inhaling fumes, injecting, or ingesting an illicit drug.
In such cases, the police has the authority to charge you if they witnessed you using or attempting to use cannabis. Additionally, if you admit to drug use, you can still be charged for the offence even if they didn't directly witness it.
The penalty for drug use is different from the penalty for cultivation or possession. Depending on the severity of the offence and the type of drug involved, you may be issued a warning or face a jail sentence. It is also important to note that if you are found guilty of drug use, it will become part of your criminal record which can affect future job prospects and travel plans.
The severity of penalties for drug use or possession is ultimately determined by the criminal justice system and can be subject to discretion.
Drug Cultivation
Drug cultivation involves growing and harvesting plants that are used to produce illicit drugs. This may involve growing cannabis, opium, or coca plants. Generally, cultivating a prohibited drug extends beyond the act of actively farming or planting seeds.
According to Section 615 of the Criminal Code Act 2002, an individual is considered to have cultivated a prohibited drug if they are directing, controlling, arranging or providing:
- Sowing a seed, seedling, or cutting a plant
- Transporting a plant
- Caring for the plant's growth
- Protecting or concealing the plant
- Harvesting the plant
Penalties for cultivating a prohibited drug
If the cultivated plant is a cannabis plant, and you possess just one or two plants for personal use, this will be regarded as a minor cannabis offence. However, if you possess larger quantities of non-cannabis plants, the maximum penalty that you can get is $30,000 fine and/or 2 years imprisonment.
Nevertheless, an individual can be found liable for the offence of selling even if they did not have the intention to sell the plant personally. In such cases, the court can establish someone's guilt for selling a cultivated plant if they anticipated or contracted another individual to carry out the sale.
Furthermore, in cases where you are found guilty of cultivating for the purpose of selling, the court has the authority to impose penalties, which may extend to a maximum term of life imprisonment. Also, penalties for such offence depends on whether the person has also been found guilty of trafficking.
Penalties if quantity exceeds 1 plant:
A person found guilty of growing at least 2 to 5 plants has a maximum penalty of 2 years imprisonment and/or a fine of $2,000.
Cultivating of over 5 but under 10 plants has a maximum prison sentence of 2 years and/or a fine of $2,000.
For an aggravated offence or a basic offence involving a serious drug offender, the maximum penalty can reach a fine of up to $5,000 and/or 5 years imprisonment. This penalty may still apply regardless of the number and whether the person is able to prove the plants were for personal use and not for sale.
Drug Trafficking
Drug trafficking in the ACT is referred to as participating in an organised commercial endeavour that involves repeated transactions of specific controlled drugs.
Whether the person intends to keep the drug for personal use or for sale, the person could be charged of trafficking in a drug of dependence if he or she is caught:
- in the possession of a large quantity of drugs
- transporting the controlled drug
- dividing the drugs into smaller packages or manufacturing the drug
- distributing or selling the drug
- purchasing drugs on behalf of a friend
- hiding the controlled drugs
Penalties for drug trafficking controlled drugs
Drug trafficking of illicit drugs carries higher penalties which may also depend on the quantity the person has as well as the age of the person.
For adults, the maximum penalty is as follows:
- 3 years imprisonment to life imprisonment for cannabis possession
- 10 years imprisonment to life imprisonment for possessing a controlled drug other than cannabis
- 15 years imprisonment and/or a fine of up to 1,800 penalty units
- 25 years imprisonment and/or 3,000 penalty units for trafficking a commercial quantity of an illicit drug
For a person under 18 years old, the maximum penalty is 20 years imprisonment or a fine of up to 2,400 penalty units.
The list of controlled drugs can be found under Schedule 1 of the Criminal Code Regulation 2002.
Sale or Supply of Prohibited Substance
Under Section 164 of the Drugs of Dependence Act, selling or supplying of prohibited substance is an offence. Hence, a substance is considered sold or supplied if:
- it was traded or exchanged;
- it can be provided to someone who expects something in return
- the owner or possessor agrees to engage in a sale.
Common examples of prohibited substances include:
- coca leaf
- DMT (Dimethyltryptamine)
- heroin
- MDMA (ecstasy)
- cannabis
For this offence, the maximum penalty is a fine of 500 penalty units or 5 years imprisonment.
Supplying a controlled drug
Whether a person supplies a controlled drug for commercial or non-commercial purpose, the action is deemed illegal. Under Section 4(1) of the Drugs of Dependence Act, “supplying” means giving away, transferring or delivering the drug to another person.
Whether it pertains to a controlled substance or a prohibited drug, the court may impose a penalty of up to $75,000 and/or 5 years imprisonment.
What are the other penalties for the possession of various drugs in Australia?
Drug possession in the ACT typically pertains to situations in which an individual physically holds or controls the drugs or has them in a location that grants them the authority, capability, or right to assume custody of the substances.
For instance, a person is considered in possession of illicit drugs if they:
- Acquire or gain possession of the drugs
- Exercise control over the drugs, regardless of whether they are physically within one's custody
- Have exclusive or shared ownership of the drugs
In this case, here are maximum penalties under the Criminal Code for the possession of various drugs:
Possession of unlawfully imported border controlled drugs or plants
- Possession of commercial quantities of unlawfully imported border controlled drugs or plants has a maximum penalty of life imprisonment.
- Possession of small amounts of unlawfully imported border controlled drugs or plants has a maximum penalty of 25 years imprisonment.
- Possession of unlawfully imported border controlled drugs or plants has a maximum penalty of 2 years imprisonment.
Possession of border controlled drugs or plants that are reasonably suspected of having been unlawfully imported
- Possession of commercial quantities of border controlled drugs or plants that have been reasonably suspected of having been unlawfully imported has a penalty of life imprisonment.
- Possession of marketable quantities of border controlled drugs or plants that have been reasonably suspected of having been unlawfully imported has a penalty of 25 years imprisonment.
- Possession of border controlled drugs or plants that have been reasonably suspected of having been unlawfully imported has a penalty of 2 years imprisonment.
Possession of controlled drugs or controlled precursors
- Possession of controlled drugs or controlled precursors has a penalty of 2 years imprisonment.
Takeaway
Drug laws play a crucial role in shaping the criminal justice system and addressing drug use in the Australian Capital Territory. The ACT government has implemented various measures like drug decriminalisation to combat drug-related crimes and promote rehabilitation for individuals struggling with substance abuse.
While these drug laws are in place to preserve public health, safety and welfare, it is important to be aware of the penalties for drug-related offences in the ACT and take necessary measures to stay compliant with these laws, particularly if you were caught dealing with illicit drugs in any way.
Drug offences in the Australian Capital Territory carry severe punishments and significant penalties from fines to imprisonment. Therefore, if you are facing drug-related charges, it is crucial to seek legal advice from a trusted criminal lawyer.
At Andrew Byrnes Law Group, we can help you navigate the complexities of the drug laws and ensure that your rights are respected throughout the legal process. Our team of high-calibre criminal lawyers has a wealth of experience dealing with drug offences and can provide you with the best legal advice for your case. Get in touch with us today so we can obtain the best outcome for you.
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