Australia: Why Is Carrying Or Holding Under 50g Of Marijuana Not A Criminal Offence In The ACT

Photo Credit: Associated Press

If you’re caught with less than 50 grams of cannabis in Canberra, it’s unlikely you’ll end up with a criminal record.

But just a few kilometers away in New South Wales, carrying the same amount of marijuana can mean a conviction or even jail time.

The variation between drug laws in each jurisdiction is a complex issue and prompted a question from John Wenitong — who, by his own description, comes from “about as far north as you can go” in Australia.

He wanted to know why possession of any amount of marijuana was a criminal offence in his home state of Queensland, but not in the national capital.

John has never fully recovered from a broken back, and injuries to his neck, knees and hip — caused by his time as a construction worker with jobs that “required a strong back and not a lot of common sense”.

He told Curious Canberra his back spasms frequently — and while prescription painkillers help get him through the day, he finds the most instantaneous relief from marijuana.

“I have had to be wary all my adult life of being caught as a criminal and was thus shocked beyond disbelief when I attended a conference on alcohol and drugs in Canberra many years ago, to find that such illegal drugs in my home state were decriminalized in the capital city,” he said.

It should be noted straight away that carrying or holding 50g of marijuana is definitely illegal in the ACT and everywhere else in Australia.

But Canberra does have a unique scheme in place where the possession of less than 50g of cannabis is decriminalized — meaning offenders can avoid a criminal conviction or jail by simply paying a fine or completing a program.

‘The rest of the states are being dullards’: health expert

Dr David Caldicott is an emergency physician and senior lecturer at the Australian National University’s College of Health and Medicine.

He said the reason the ACT had decriminalized possession of under 50g of marijuana was simple:

“The rest of the states are being dullards and laggards as far as introducing drug law reform is concerned.”

He said Australian Puritanism was still rife in politics and had hindered reform.

“The issue is it’s far too easy to continue with the status quo because there are people wearing tin-foil hats who truly believe young people should be in jail for possession,” he said.

“There are people, of course, who think that throwing the book legally at young people who have been found in possession of drugs in some way will change the equation, but globally we know that’s a complete toss — there’s absolutely no evidence for that whatsoever.”

Criminalizing young people is ‘ludicrous and cruel’

The ACT’s scheme, called the Simple Cannabis Offence Notice (SCON), was first introduced in 1992 and amended in 2005 to exclude all hydroponically grown plants.

It’s part of a broader drug diversion strategy, which aims to move drug users away from the criminal justice system and into education and treatment programs.

Under the scheme if you’re caught with less than 50g of cannabis you can pay a $100 fine or complete a program instead of receiving a conviction.

Originally the threshold was 25g — which according to the ACT’s Justice Directorate was a lower volume than any other state or territory.

It was increased in 2013 after a report found that most common quantity purchased by drug users was an imperial ounce (or 28.35 grams).

An ACT Health report from 2012 revealed while the program was initially seen as highly controversial, it is now viewed as a practical response — reducing drug use, reoffending and criminal justice costs.

According to ACT Health, 71 per cent of people picked up by police for cannabis possession between 2010 and 2011 received SCONs — with just 14 per cent ending up in court.

And new figures obtained by the ABC show that since 2010, 829 people have avoided a criminal conviction through SCONs.

Dr Caldicott said it was important to remember criminal convictions could significantly affect a person’s life.

“One of the biggest issues in the culture and society of drugs is the idea that for being foolish and ignoring the law you can get a criminal record,” he said.

“[It] can render life incredibly difficult for you in terms of joining the military, joining the police force, getting a mortgage, getting insurance — there are even countries you can’t apply for a visa for if you have a criminal record.”

“The idea of criminalizing young people who we know make mistakes for foolishness is ludicrous, cruel and most importantly has no effect on outcomes whatsoever.”

Regulations to facilitate medicinal marijuana ‘arcane’

Many people, like our questioner John, take cannabis for medicinal purposes.

Since 2016, it has been legal to use medicinal marijuana with a prescription — although advocates have stated many doctors are unwilling to prescribe it.

Health Minister Greg Hunt said there has been a progressive increase in prescriptions and that there are no real government barriers to accessing medicinal cannabis.

But Dr David Caldicott said many people bypass GPs in favor of growing their own product.

“The regulations in place to facilitate medical cannabis access are so arcane that people find it considerably easier to score their medication illegally,” he said.

Adolescent cannabis consumption a ‘bad idea’

Health experts, like Professor Michael Farrell from the National Drug and Alcohol Research Centre, point out that taking any amount of marijuana comes with risks, particularly for people with a mental illness.

“There is a big debate about cannabis and psychosis. And we know those who are vulnerable to psychosis — when exposed to cannabis — are at an increased risk, and those with psychotic disorders when using cannabis can have worse symptoms,” Professor Farrell said.

He said evidence suggested long-term illicit cannabis could also affect young people.

“We’ve had longitudinal data to show it is associated with the impairment of educational attainment and a range of other things,” Professor Farrell said.

Dr Caldicott echoed those concerns.

“There is considerable evidence emerging that young people, who are developing their brains — the plasticity of the brain is not really resolved or hardened, and so I think the idea of adolescent cannabis consumption is a very bad idea,” Dr Caldicott said.

But he said the risk for adults was not as severe.

“The lethal dose of cannabis is more likely to kill you by falling on you, than you being able to smoke it — it’s several hundred kilos,” he said.

Other states will ‘catch up’ to ACT

The ACT was the first jurisdiction to introduce a drug diversion program, and the second to specifically introduce civil penalties for cannabis possession after South Australia.

While possession of cannabis in NSW, Queensland and Western Australia is still a criminal offence, Dr Caldicott suspects that will ultimately change.

“The problem then is you get to a situation, say, for example, what you have in California, where simple criminal records associated with possession are being expunged because in retrospect it was ludicrous to start with,” he said.

“What will probably happen in Australia is that prosecuting people for drug possession will be regarded as a complete anachronism of a quasi-religious path.”