Table of Contents
Aussie cannabis laws are a mixed bag. While the heavy-handed drug war days are mostly behind us, we still all have to navigate a society that stigmatises and punishes weed use in a variety of ways. And since we live in a federation, we can’t even count on a bit of consistency to make it easy on our bud-soaked brains; every state has different laws that require their own strategies to navigate.
It’s about time that us Aussies knew what we were up against. This series will address the key legislation and policies you need to know as a resident stoner in Australia.
This week: New South Wales.
If you have followed the ‘Cannabis Law Cheat Sheet’ series closely – or if you’ve spent any time in Victoria or Tasmania – you may be familiar with the penalty unit system. If not… it suffices to say that penalty units are a way for governments to measure the intensity of their fines. More units = a bigger fine.
As of 2019, one NSW penalty unit is equal to $110.
In New South Wales, Queensland, Victoria and Tasmania, possession and use of cannabis is a criminal offence. With that being said, it is unlikely in these states that anyone caught with a small amount of cannabis will be convicted. Diversion programs aim to redirect offenders into education, assessment and treatment.
In New South Wales, if you’re caught with up to 15 grams of cannabis, up to two cautions/diversions can be issued at police discretion.
On The Spot Fines
Section 333 of the NSW Criminal Procedure Act (1986) gives police the discretion to issue penalty notices to people who commit a ‘penalty notice offence’.  NSW Schedule 4 Criminal Procedure Regulation (2017) prescribes all the penalty notice offences, including cannabis possession. 
As of the end of January 2019, a police officer can now issue an on-the spot fine (penalty notice) of $400, if you are caught possessing an illegal substance. However, due to the existence of the cannabis cautioning scheme in New South Wales, penalty notice offences are often avoided by those found under possession. 
Police have the discretion to issue on-the-spot fines. This means that they do not have to, and any on-the-spot fine is ultimately a decision left up to law enforcement. Keep this in mind when you’re speaking to officers; what you say and how you say in the heat of the moment could make a big difference.
Paying a penalty notice will not result in a criminal conviction against your name. You will not be required to attend court in front of a Magistrate or Judge to face the charge, either; unless, that is, you choose not to pay the fine and court-elect to dispute it. In which case, you will be given a court date, where you will be required to appear before a Local Court Magistrate, where you may either plead guilty or not guilty.
If you plead guilty or are found guilty after disputing it, the Court can impose a penalty that carries a criminal conviction, unless you get a section 10 dismissal or a conditional release order without conviction.
Courts & The Cannabis Cautioning Scheme
Not where you wanna end up, but it beats the alternative…
Since 2000, the NSW police have operated a cannabis cautioning scheme that gives police a discretion or choice to let you off with a caution – if you are caught with only a ‘small amount’ of cannabis.
You are only eligible to be given a caution if you have possession of 15 grams or less of cannabis and not have any previous convictions for violent or drug or sexual assault related offences.
You do not have a right to a caution if you are caught with less than 15 grams of cannabis. Police do not have to give you a caution. This means it is sensible to be polite to police officers when you are caught out, particularly if you have less than 15 grams of cannabis on you. That way, police are more likely to give you a caution, rather than charging you with possession and prosecuting you in court.
You can only be cautioned twice. On the second time, you will have to attend a compulsory Alcohol and Drug Information Service (ADIS).
- You were found to have possession of no more than 15g of cannabis; and
- You had the drug for personal use; and
- You admit to having it in your possession; and
- You are not also involved in another criminal offence at the same time; and
- You have no prior record for offences involving drugs, violence or sexual assault; and
- You have never been cautioned for drug possession on more than 2 prior occasions.
If found for possession in NSW, you will face up to 2 years imprisonment, and/or a fine of up to $2,200 under section 21 of the Drug Misuse and Trafficking Act 1985.
A person accused of possession in New South Wales can only be found guilty of the charge if police can prove each of the following elements to the charge under section 10(1) of the Drug Misuse and Trafficking Act 1985:
- A substance was found on the person which was a prohibited drug under the law; and
- The accused person who the substance was found on had physical custody or control of that substance; and
- The accused person either knew it was there or was at least aware of the likelihood of its existence from where it was found.
It is an offence to possess a prohibited drug or plant, unless the prohibited drug or plant has been lawfully prescribed or supplied. Note that cannabis is a prohibited drug in New South Wales, regardless of what anyone might say about it having been “decriminalised”.
Possession of a drug for your own personal use is a summary offence, which means it is dealt with by the local or children’s court. The maximum penalty for possession in New South Wales is $2,200 (or 20 penalty units), and/or imprisonment for 2 years. In practice, fines for cannabis possession usually range from $110-550, averaging around $220.
If you are caught with an indictable quantity of cannabis (roughly 1000 grams), you will be deemed to possess the substance for the purpose of supply, meaning you will automatically face much higher penalties… unless you can prove that the drugs were for your own use, which may be hard. Be careful out there!
Trafficking & Supplying
NSW uses a mixed weight system of calculating threshold quantities for trafficking. NSW police and prosecutors take the total weight of the seized drug sample (e.g., pills, tablets, caps, points, joints, mixtures, or preparations) to be the total quantity of the prohibited drug when charging you.
The supply of a large commercial quantity of cannabis in New South Wales has a maximum penalty of $550,000 and/or 20 years in prison. Smaller, yet still indictable quantities have maximums between $220,000-$385,000 and/or imprisonment for 10-15 years. Remember, these are the maximum sentences – a regular prison sentence will shorter than the maximum.
Manufacturing and Cultivation
The maximum penalties for cultivation or manufacture are similar to those for supply, depending on the type and quantity of drug involved, the offender’s role, which court is dealing with the case, and whether children have been exposed to the cultivation or manufacturing process. If you are caught in possession of precursors or equipment, the police must establish your intention to use them to manufacture prohibited drugs. Even the possession of instructions for the manufacture or cultivation of a prohibited drug or plant without a lawful excuse is an offence, that could award you with a $2,200 fine and/or 2 years imprisonment.
Life imprisonment and/or a $550,000 fine are the maximums for manufacturing or cultivating the largest commercial quantities of cannabis in NSW. Smaller, yet still indictable quantities of the plant have maximums of 15-20 years and $220,000-$385,000. Manufacturing or cultivating less than the indictable quantity of cannabis has a maximum penalty of $11000 and/or imprisonment for 2 years. Smaller fines between $2,200 and $5,500 are also common.