Criminal Law and Cannabis in Queensland
The main pieces of criminal legislation governing cannabis in Queensland are:
Note: Please check the links above are the current versions of the law.
Criminal Code 1899
The Queensland Criminal Code applies to the Drugs Misuse Act and must be read with the Act.
The Code contains the defences of 'justification and excuse' and 'extraordinary emergencies.' Justification and excuse is also referred to as the common law defence of necessity.
The defences in the Criminal Code may apply to a person who may have no alterative but to break the law out of necessity or in an extreme emergency to prevent harm or danger to life or health.
The Code also provides for a number of legal duties to provide another person in their care, the necessaries of life. This duty may extend to a carer, legal guardian or health professional.
Defence of Justification and Excuse
Section 31(1)(d) of the Criminal Code provides:
“A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say when (i) the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and (ii) the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and (iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.”
Defence of Extraordinary Emergency
Section 25 provides:
“Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”
Legal Duty of Doctors, Carers and Legal Guardians
Section 285 provides for the duty to provide necessaries of life:
“It is the duty of every person having charge of another who is unable by reason of age, sickness, unsoundness of mind, detention, or any other cause, to withdraw himself or herself from such charge, and who is unable to provide himself or herself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and the person is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.”
Section 286 provides for the necessaries of life for the child:
"It is the duty of every person who has care of a child under 16 years to provide the necessaries of life for the child; and take the precautions that are reasonable in all the circumstances to avoid danger to the child's life, health or safety; and take the action that is reasonable in all the circumstances to remove the child from any such danger; and he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty.”
Section 324 provides for the failure to supply necessaries of life:
“Any person who, being charged with the duty of providing for another the necessaries of life, without lawful excuse fails to do so, whereby the life of that other person is or is likely to be endangered or the other person's health is or is likely to be permanently injured, is guilty of a misdemeanor, and is liable to imprisonment for 3 years.
Drugs Misuse Act 1986
The Drugs Misuse Act 1986 (QLD) (DMA) and the Regulations are administered by the Minister for Police. The DMA provides for a range of criminal offences and defences, and as mentioned above must be read with the Criminal Code.
Cannabis is classified as a dangerous drug under the DMA.
The definition of "unlawfully" in the DMA means “without authorisation, justification or excuse by law.”
Offences
A person may be found guilty of an offence if the person 'unlawfully' carries out any of the following:
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trafficking in dangerous drugs
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supplying dangerous drugs includes the offence of aggravated supply of cannabis to a minor under 16 years of age.
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producing dangerous drugs includes cultivation, manufacture or production of cannabis, cannabis resin or cannabinoids
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publishing or possessing instructions for producing dangerous drugs
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possession of dangerous drugs
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possessing things including possessing things used to administer, cultivate or produce cannabis or cannabinoids
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permitting use of place includes permitting use of place to produce, cultivate or supply cannabis.
Harsh penalties can apply to a person found guilty of committing an offence. The offence of aggravated supply of a dangerous drug to a child under the age of 16 carries a maximum penalty of 25 years imprisonment. Matters not involving commercial quantities and where there is no evidence of trafficking or supply may be dealt with in the Magistrates Court.
In the majority of cannabis cases a guilty plea is entered, and the use of cannabis for medical purposes is only raised as a mitigating factor on sentencing. First time offenders who plead guilty may be given drug diversion, and in other cases penalties range from a fine, community service to a suspended sentence and imprisonment. For a first offence and under some other circumstances no conviction may be recorded, however the charge is always on the persons criminal record and can impact on a person, for example in some areas of employment, or overseas travel where a person must declare both charges and convictions when applying for a visa to travel to some countries.
Queensland: "Cannabis Capital" of Australia
Key findings from the Australian Crime Commission: Illicit Drug Date Report 2012-13 show Queensland had more cannabis arrests and seizures than any state in Australia.
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Cannabis accounted for the greatest number of national illicit drug seizures in all states and territories, increased by 4.6 per cent, from 51,823 in 2011–12 to 54,181 in 2012–13, the highest number reported in the last decade.
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The weight of national seizures was the second highest reported in the last decade, increased by 27.1 per cent, from 7,349.2 kilograms in 2011–12 to 9,344.0 kilograms in 2012–13.
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The number of national cannabis arrests increased by 1.8 per cent, from 61, 011 in 2011–12 to 62,120 in 2012–13, the highest reported in the last decade.
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Queensland continues to account for the greatest number of national cannabis seizures with 18,009 seizures, netting 813kg of cannabis, followed by New South Wales.
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Queensland accounted for the greatest number of cannabis arrests, increased by 3.6 per cent from 17,733 in 2011–12 to 18,365 in 2012-13, with 2,034 providers arrests, and consumer arrests accounting for 16,331 or 86.7 per cent of all cannabis related arrests.
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With the exception of Victoria, over half of all illicit drug arrests in all states and territories related to cannabis.
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Cannabis remains the most commonly reported illicit drug used by police detainees in the 12 months preceding interview.
Note: 'Arrest’ incorporates recorded law enforcement action against a person for suspected unlawful involvement in illicit drugs. It incorporates enforcement action by way of arrest, summons, diversion program, ‘notice to appear.' Some charges may have been subsequently dropped or the defendant may have been found not guilty.
Defences
The definition for 'unlawfully' in the DMA, and the Criminal Code set out some of the defences that can be raised to excuse a person from criminal prosecution.
Authorisation
There are a number of provisions in the DMA and other legislation that provide for a person to be granted an endorsement or approval to be 'authorised' to carry out specified activities involving the use of cannabis for medical purposes that would otherwise be a criminal offence. Under recent changes to the Health (Drugs and Poisons) Regulations doctors can now be given approval to prescribe, and supply cannabis via the Special Access Scheme or in research trials, and a pharmacist may be given an approval to obtain, possess, supply and dispense cannabis.
Justification or excuse
The availability of the defence of justification and excuse in the DMA, and as set out below in the Criminal Code, implies that in certain circumstances the law may excuse a person from breaking the law where there is sufficient evidence to show that the person committed the act in order to save himself or herself or another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat.
Section 31(1)(d) of the Code provides:
“A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say when (i) the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and (ii) the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and (iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.”
Common Law Defence of Medical Necessity
“A man may break the law, and yet not break the law itself …. where the words of them are broken to avoid a greater inconvenience, or through necessity, or by compulsion.”
In Australia the medical use of cannabis is generally raised as a mitigating factor in sentencing rather than as a complete defence. There have been a number of unreported cases where the defence has been successfully raised in Australian courts however in the majority of cases the person pleads guilty.
In the United States the defence has been widely used. US v Randall 1976 was the first legal case to bring about changes to drug policy, and to extend the necessity defence to the crimes of possession or cultivation of cannabis. Robert Randall began smoking cannabis after conventional drugs proved ineffective in treating his glaucoma.
Read more on the common law defence of necessity and significant cases involving the defence.
The availability of a defence does not protect a person from being charged in the first instance. Unless a police officer uses discretion not to arrest or charge a person, or the Director of Public Prosecutions makes a decision not to prosecute the matter on public interests grounds or because of lack of evidence, a person charged with an offence is required to raise a defence in his or her Court proceedings.
This involves a criminal hearing or trial, which is a lengthy, complex and stressful process. To successfully raise a defence, a person would be required to produce expert testimony from a doctor, which can be quite costly. In many cases, while doctors are prepared to provide a letter or medical certificate for his or her patient, most are unwilling to provide an expert affidavit and attend Court as an expert witness.
Industrial Hemp
Part 5B of the Drugs Misuse Act contains provisions for the industrial cultivation and use of cannabis. Cultivation of the plant is restricted to 1% THC content or 3% or more for research purposes. Section 4a also provides that any products made from it must be in a form that cannot be used for human consumption.
Historical
In 2008 the Attorney General changed the heading in Part 2 from Drug Trafficking to Drug Offences after legal challenges submitting that the offences in Part 2 only applied to drug traffickers, and not to patients who used cannabis for medical purposes.
After legal challenges in 2010, and an inquiry initiated by the Supreme Court Judiciary, a number of changes were made to the DMA. Most cannabis cases are now heard in the lower courts as a summary offence, rather than the Supreme Court, as the prosecution can no longer elect to indict cases not involving allegations of commercial supply to the Supreme Court.
Drugs Misuse Bill 1985 - Second Reading Speech
The reports on the introduction to the Drugs Misuse Bill in 1985 make no mention of its effect overriding common law health and human rights, and for all intents and purposes the Act was not to apply to the actual users of drugs.
Honourable W.H. Glasson In his second reading speech: "principal thrust of the Bill not aimed at actual users"
“The Drugs Misuse Bill was introduced under tough new measures to combat drug trafficking in Queensland ... quite contrary to what some media commentators have stated and printed over the last week, the principal thrust of the Bill is not aimed at actual users of drugs…. the Bill is aimed at protecting our young people from the greed of those who live off the drug habits that their unfortunate victims develop. Drug-traffickers in this filthy trade and I do not care who they might be are nothing but parasites on today’s young people and society in general, extracting millions of dollars from those who are addicted. These are the people that this Bill is intended to catch not their victims. By the introduction of this Bill it is intended to make Queensland a most unpopular place, in fact the most unpopular place in Australia for hard drug dealers or traffickers “
Director of Public Prosecutions (DPP)
The decision to prosecute is a two tiered test:
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is there sufficient evidence?; and
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does the public interest require a prosecution?
If there is insufficient evidence, or if it is not in the interests of the public that a prosecution should be initiated or continued, then it should not be pursued. The scarce resources available for prosecution should be used to pursue, with appropriate vigour, cases worthy of prosecution and not wasted pursuing inappropriate cases that are not in the public interest.