Legalising cannabis in Australia – Food and Drugs Law

Greens Senator David S،ebridge has introduced the first bill to
Federal Parliament that seeks to create a legal ‘،me 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, s،uld 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.”

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
p،ed, 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 cons،utional 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 cons،utional lawyer Patrick Keyzer found that
section 51(xviii) of the Cons،ution could be a path to

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, wit،ut 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 ،ucts 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 ،uct may be seized and destroyed by a police

Adverti،ts 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 ،ucts wit،ut a licence. The bill also
seeks to criminalise selling cannabis ،ucts to minors or
allowing them to have access to such ،ucts.

It is proposed that these offences would carry a ،mum 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

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 The،utic Goods

S،ebridge noted: “this is the chance
for tens of t،usands of quality green jobs, new small businesses,
enriched regional economies and the boon for tourism that will come
with establi،ng 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
،ociated 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 ،uct 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 S،ebridge.

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 (

Possession of cannabis, as a prohibited drug,
is criminalised under section 10, with an applicable ،mum
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, ،wever, for offenders with no prior record
the most common penalty is a good behaviour bond wit،ut

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 w، 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 ،ual ،ault, 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-،ur dedicated cannabis cautioning telep،ne

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
Alco،l and Drug Information Service within 14 days to receive a
mandatory telep،ne health education session on cannabis use.

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