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Greens Senator David Shoebridge has introduced the first bill to Federal Parliament that seeks to create a legal ‘home grow’ and commercial cannabis market across Australia.

“With just a sprinkling of political courage and collaboration mixed with a truckload of common sense we can make this law and end the war on cannabis.

“It’s time to stop pretending that consumption of this plant, consumed each year by literally millions of Australians, should still be seen as a crime.

“Everyone knows that it is not a matter of if we legalise cannabis in Australia, it’s a matter of when, and today we’re taking a huge step forward.” announced Shoebridge.

The ‘Legalising Cannabis Bill 2023’ seeks to “provide for the registration of cannabis strains, the regulation of cannabis and the establishment of the Cannabis Australia National Agency (‘CANA’).”

The CANA would have primary responsibility for licensing and regulating cannabis trade.

As the bill has been introduced to Federal Parliament, if passed, it would legalise cannabis nationally.

Due to it being Commonwealth legislation, it would have the power to override all state legislation criminalising cannabis’ legal use, possession, and sale.

The Greens sought constitutional legal advice prior to introducing the bill to effect change across the country at the same time, rather than push for piecemeal reform across the states and territories.

Whilst states largely have responsibility for their criminal laws, advice from constitutional lawyer Patrick Keyzer found that section 51(xviii) of the Constitution could be a path to legalisation.

This section relates to ‘copyrights, patents of inventions and designs, and trademarks’ and enables the Commonwealth to regulate plant variety rights.

Accordingly, it is proposed that the Commonwealth: “could regulate cannabis strains as plant varieties and cause them to be listed in a schedule in respect of which the commonwealth has exclusive regulatory control.”

The bill would allow growing up to 6 plants at a time for personal use at ones private residence, without a license.

To sell cannabis, a licence will need to be obtained through the Cannabis Australia National Agency.

It is envisioned that cannabis would be sold through licensed cannabis cafés and dispensaries.

At cannabis cafés any consumption of cannabis products by smoking would need to occur in an outdoor area and not unreasonably interfere with members of the public.

It proposes that an adult in possession of cannabis that is ‘a registered cannabis strain’ or ‘subject of a licence’ will not be criminally responsible for an offence.

If a minor is found to be in possession of cannabis, it is also suggested that they will not be criminally responsible for an offence, but the product may be seized and destroyed by a police officer.

Advertisements related to cannabis would be prohibited, except for where it occurs at venues licensed to sell cannabis.

Offences will also remain for where cannabis is grown or sold in conditions not prescribed by the bill.

This includes growing more plants than permitted for personal use and selling cannabis products without a licence. The bill also seeks to criminalise selling cannabis products to minors or allowing them to have access to such products.

It is proposed that these offences would carry a maximum penalty of 6 months imprisonment and/or a $55,000 fine (200 penalty units x current value of $275).

Furthermore, the importation of cannabis will remain an offence.

A Parliamentary Budget Office report commissioned by the Greens revealed that legalising cannabis could generate $28 billion for the Australian economy in the first 9 years of the legislation’s operation.

It found that around 12% of adult Australians consume cannabis regularly, and that this figure could grow to 14% within the first year of legalisation.

Medicinal cannabis with a prescription has been legal in Australia since 2016, with over 295,515 prescriptions issued since 2020. However, this is heavily regulated by Therapeutic Goods Administration.

Shoebridge noted: “this is the chance for tens of thousands of quality green jobs, new small businesses, enriched regional economies and the boon for tourism that will come with establishing a totally new legal industry.”

It has also been identified as an opportunity to significantly reduce harms caused by the ‘war on drugs’ and the associated impacts of policing and incarceration.

Notably, in the 12 months to December 2021, cannabis accounted for 57% of drug possession proceedings.

“It is the opportunity to regulate the quality, strength and safety of a product that millions of Australians are already using, and it’s the chance to radically reduce harm, by stopping 80,000 Australians a year from being caught up in the criminal justice system for possession of cannabis.” explained Shoebridge.

Currently in New South Wales, cannabis is considered a prohibited drug or plant (depending on its form), as reflected in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW).

Possession of cannabis, as a prohibited drug, is criminalised under section 10, with an applicable maximum penalty of up to 2-years imprisonment and/or a $2,200 fine.

Statistics reveal that the most common penalty is being convicted and fined, however, for offenders with no prior record the most common penalty is a good behaviour bond without conviction.

Despite this, instead of charging you, police may decide to issue a formal cautioning under the ‘Cannabis Cautioning Scheme’ if you are found with under 15 grams.

This is a discretionary option available to officers, and they still may decide to formally charge offenders who may otherwise be eligible for a caution.

Individuals will not be able to receive a caution if they were involved in other criminal charge(s) at the time, have a prior criminal record related to drugs, violence, or sexual assault, or do not admit guilt to possession.

A ‘cannabis caution’ involves police issuing the formal notice which contains health and legal information, as well as a number for a 24-hour dedicated cannabis cautioning telephone helpline.

It provides information about treatment, counselling, and support services.

Offenders are only able to receive two cannabis cautions. Upon receiving a second caution, you will be required to contact the Alcohol and Drug Information Service within 14 days to receive a mandatory telephone health education session on cannabis use.

Whilst non-compliance will be noted on an offender’s record and has the potential to be brought up in court if the offender is charged for any offence, there is no obligation on police to follow this up.

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin