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Understanding NSW Weed Laws. What Is Cannabis?

Cannabis, a versatile plant belonging to the Cannabaceae family, has been used for centuries for both medicinal and recreational purposes.

The plant contains various chemical compounds known as cannabinoids. The two most famous ones are tetrahydrocannabinol (THC) and cannabidiol (CBD). THC is the compound that gives users the well-known “high” feeling, while CBD is celebrated for its therapeutic benefits without the psychoactive effects. Understanding NSW weed laws is essential for those using cannabis in New South Wales, whether for its therapeutic or recreational properties.

THC and CBD interact with the body’s endocannabinoid system, which helps regulate several bodily functions, including mood, appetite, and pain. This interaction is why cannabis is used in different ways to achieve various effects.

Cannabis can be consumed in many forms: smoking the dried flowers, vaporising the plant or its extracts, or consuming it through edibles like cookies or gummies. It can also be applied topically via creams and oils.

Hashish is another form of cannabis made by compressing the plant’s resin. Other concentrated forms include shatter, wax, and budder, each with its unique potency and texture.

Interestingly, about one-third of Australians have tried cannabis at some point in their lives, with approximately 11.6% having used it in the past year.

At KPTlegal, we understand the complexities surrounding cannabis laws. Stay with us as we navigate through the legal landscape of cannabis in New South Wales.

Offences for Importing Cannabis

Importing cannabis into Australia is a severe offence, strictly regulated under the Criminal Code Act 1995. The law covers varying quantities of cannabis, classified as commercial, marketable, and any quantity, with each category carrying significant penalties.

To convict someone of importing cannabis, the prosecution must prove beyond a reasonable doubt that the individual indeed imported cannabis (or THC-containing cannabis derivatives) and was aware of their actions or acted recklessly. 

The term “import” includes bringing the substance into the country and handling it in any way connected to its importation. Acting “recklessly” means the person recognised a substantial risk that the substance was a controlled plant but proceeded anyway.

For offences involving larger quantities, the law gets even stricter. A “marketable quantity” of cannabis is defined as 25 kilograms of dried leaf, while a “commercial quantity” is 100 kilograms or more. The penalties escalate with the quantity involved:

  • Importing less than a marketable quantity can result in up to 10 years in prison.
  • Importing more than a marketable quantity but less than a commercial quantity can lead to 25 years in prison.
  • Importing a commercial quantity or more can result in life imprisonment.

Offences for Cultivating or Growing Cannabis

Growing cannabis is a serious offence in New South Wales, covered under the Drug Misuse and Trafficking Act 1985. Cultivation includes everything from planting and nurturing to harvesting the plants.

There are several specific offences related to growing cannabis:

  1. Cultivating or supplying a prohibited plant under section 23(1) of the Act.
  2. Cultivating less than a commercial quantity by enhanced indoor means for commercial purposes under section 23(1A).
  3. Cultivating more than a commercial quantity by enhanced indoor means under section 23(2).
  4. Cultivating by enhanced indoor means in the presence of children under section 23A(1).
  5. Cultivating a commercial quantity by enhanced indoor means in the presence of children under section 23A(2).
  6. Cultivating by enhanced indoor means for commercial purposes in the presence of children under section 23A(3).

Cultivation “for a commercial purpose” means growing to sell the plant or its products or knowing that someone else will sell them. “Enhanced indoor means” involves growing cannabis indoors using nutrient-enriched water, artificial light, or heat, or suspending the plant’s roots and spraying them with nutrients.

A “commercial quantity” of cannabis is defined as 50 plants grown indoors or 250 plants grown outdoors. A “large commercial quantity” is 200 plants indoors or 1,000 plants outdoors.

The penalties for these offences vary depending on the quantity and method of cultivation:

  • Less than a commercial quantity: Up to 10 years in prison and/or a $220,000 fine.
  • More than a commercial quantity but less than a large commercial quantity: Up to 15 years in prison and/or a $385,000 fine.
  • More than a large commercial quantity: Up to 20 years in prison and/or a $550,000 fine.

When children are involved, the penalties are even harsher:

  • Less than a commercial quantity: Up to 12 years in prison and/or a $264,000 fine.
  • More than a commercial quantity but less than a large commercial quantity: Up to 18 years in prison and/or a $462,000 fine.
  • More than a large commercial quantity: Up to 25 years in prison and/or a $660,000 fine.

Offences for Supply of Cannabis

Supplying cannabis in New South Wales is a severe offence detailed under Section 25(1) of the Drug Misuse and Trafficking Act 1985. This law covers various forms of cannabis, except for whole plants, which are addressed under a different section.

Supply offences can range from giving cannabis to friends without payment to mailing it, or even pooling money with others to buy and then distribute it. Interestingly, you can be charged with supply even if the substance you provided wasn’t cannabis, as long as you represented it as such.

To secure a conviction for supplying cannabis, the prosecution must prove that you knowingly provided cannabis to someone else.

The penalties for supplying cannabis vary depending on the amount:

  • Less than 30 grams: If handled in Local Court, penalties can be up to 2 years in prison and/or a $5,500 fine. In District Court, this can increase to 15 years in prison and/or a $220,000 fine.
  • Between 30 grams and 1 kilogram: The maximum penalties are the same as for less than 30 grams.
  • Between 1 kilogram and 25 kilograms: This still carries the same maximum penalties.
  • Between 25 and 100 kilograms: Up to 20 years in prison and/or a $385,000 fine.
  • More than 100 kilograms: Life imprisonment and/or a $550,000 fine.

One unique aspect of this law is “deemed supply.” Under Section 29 of the Act, you can be charged with supply even if there’s no direct evidence of you distributing the drug. If you’re caught with a “trafficable” quantity—300 grams or more of cannabis—you might automatically be deemed to be supplying it. To fight this charge, you’d need to prove that you had the cannabis for reasons other than distribution.

The Offence of Possession of Cannabis

Possessing cannabis is a criminal offence under Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW). This law applies regardless of the quantity of cannabis found on you.

In legal terms, “possession” means having exclusive custody or control over the cannabis. This implies that the prosecution must prove that you had sole possession of the drug and must rule out any reasonable possibility that the cannabis was not yours. For instance, if you were driving a friend’s car and were unaware that there was cannabis in the back seat, you might not be held accountable.

The maximum penalty for possessing cannabis in NSW is up to 2 years in prison and/or a fine of $2,200.

The Cannabis Cautioning Scheme

If you’re caught with cannabis for the first time, the police might issue a caution instead of charging you with an offence. A police caution is essentially a formal warning, allowing you to avoid a criminal record.

The Cannabis Cautioning Scheme in NSW is designed for adults who commit minor cannabis offences. Under this scheme, police can issue a caution if they find someone:

  • Using cannabis,
  • Possessing less than 15 grams of cannabis, or
  • In possession of cannabis-related paraphernalia, such as a bong or pipe.

You must admit to the offence to receive a caution. You can only receive a caution twice, and those with prior convictions for drug offences, violent crimes, or sexual assault are not eligible.

A formal caution includes information for the Alcohol and Drug Information Service. If you receive a second caution, contacting this service becomes mandatory.

Laws Regarding Driving and Cannabis Use

In New South Wales, driving with any detectable amount of THC (the psychoactive component of cannabis) in your system is a severe offence under Section 111 of the Road Transport Act 2013. This law applies if you are:

  • Driving a vehicle,
  • Sitting in the driver’s seat and attempting to start the vehicle or
  • Supervising a learner driver.

If you’re caught, the penalties are severe. For a first offence, you could face a fine of $572 if you receive a penalty notice or up to $2,200 if the case goes to court, along with an automatic six-month licence disqualification. For subsequent offences, the fines increase to $3,300, and the automatic disqualification period extends to 12 months, with the possibility of longer bans depending on your driving record.

THC can be detected in your system for varying durations:

  • Saliva tests can detect THC up to 30 hours after use.
  • Blood tests can detect THC up to 36 hours after use.
  • Urine tests can detect THC up to 28 days after use.

It’s important to note that there are no exceptions for medicinal cannabis users under this law.

Support for Changing Cannabis Laws

There is a growing movement pushing for changes to cannabis laws in NSW and across Australia. Public opinion is shifting significantly. In 2019, the National Drug Household Survey revealed for the first time that more Australians support the legalisation of cannabis (41.1%) than oppose it (37%). Additionally, a significant majority (77%) believe that possessing cannabis should not be a criminal offence.

In response to this changing attitude, Legalise Cannabis NSW introduced a private members bill to decriminalise the possession of small amounts of cannabis. Alongside the push for decriminalisation, there has been considerable criticism of NSW’s drug-driving laws, especially regarding their impact on medicinal cannabis users. Critics argue that the current laws are unfair and advocate for an impairment-based standard for drug driving offences. The Greens introduced a separate private members bill earlier this year to address these concerns with NSW weed laws. If you have questions about how these evolving laws might affect you or need legal advice, our KPT Legal team is here to help.

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