Cultivating Cannabis in New South Wales
In 2006, the federal government passed legislation making it legal to cultivate cannabis for medicinal purposes if you have a licence to do so. Cannabis can now be grown legally in Australia when a person is licenced and does so under strict controls. However, cultivating cannabis without a licence remains a serious criminal offence in all Australian jurisdictions. In New South Wales, cannabis offences are set out in the Drug Misuse and Trafficking Act.
Medicinal cannabis in New South Wales
New South Wales is subject to the federal licensing scheme and has also introduced a Medicinal Cannabis Compassionate Use Scheme.
Federal licencing scheme
In 2016, section 8E was added to the Narcotic Drugs Act 1967 allowing a person to apply for a medicinal cannabis licence. A licence holder is permitted to obtain, produce and cultivate cannabis plants or cannabis resin for medical purposes. The cannabis must be grown and stored under strict controls. The license holder must have a suitable location, facilities and a proposed security arrangement for the operation to take place. To be granted a licence, a person must show that they are fit and proper, that they have not been found guilty of a serious offence in the last 10 years and that they will ensure the physical security of the cannabis.
Medicinal products made from cannabis plant can be used to treat a range of medical conditions, including epilepsy, MS, HIV and chronic pain.
Cannabis products may be prescribed by doctors who are authorised to prescribe the product. Doctors can apply to the New South Wales Health Department for this authority.
Medicinal Cannabis Compassionate Use Scheme
The New South Wales government has established the Medicinal Cannabis Compassionate Use Scheme, which provides the police with guidelines to use their discretion not to lay charges in situations where a person with a terminal illness or their carer is found in possession of cannabis. The scheme does not provide for or endorse the use of cannabis that is not lawfully prescribed.
An adult who has a terminal illness can register for the scheme with the verification of a medical practitioner that they are terminally ill as defined under the scheme. Up to three persons can be nominated as carers.
Cultivating cannabis offences
It remains a criminal offence to grow cannabis in New South Wales outside of the federal licensing scheme. The offence of cultivating, supplying or knowingly taking part in the cultivation or supply of a prohibited plant is an offence under Section 23 of the Drug Misuse and Trafficking Act.
‘Cultivating’ includes sowing or scattering cannabis seeds and planting, growing, tending or nurturing cannabis plants.
The maximum penalty for cultivating cannabis in New South Wales is between 10 and 20 years imprisonment, depending on the quantity that is cultivated. Charges of cultivating less than 250 cannabis plants can be dealt with in the Local Court, where the maximum penalty for a single offence is two years imprisonment. The maximum penalties that can be imposed by higher courts are set out in the table below.
| Number of plants or quantity of cannabis | Offence | Maximum penalty |
|---|---|---|
| Any number or quantity | Cultivating narcotic plant where plants not intended for trafficking | 20 penalty units or 12 months imprisonment |
| Any number or quantity | Cultivating narcotic plant | 15 years imprisonment |
| More than 100 plants or 25 kilograms | Cultivating commercial quantity narcotic plant | 25 years imprisonment |
| More than 100 plants or 250 kilograms | Cultivating large commercial quantity narcotic plant | Life imprisonment |
Defence to cultivating cannabis
If an accused person did not know and could not reasonably be expected to have known that a plant was a prohibited plant, they have a defence to a charge of cultivating a prohibited plant.
Cultivation by enhanced indoor means
In New South Wales, cultivating cannabis for commercial purposes using enhanced indoor means (such as a hydroponic system) is a separate criminal offence. For this offence, a person faces a maximum penalty of imprisonment for 15 years if they cultivated more than five plants. However, the prosecution must prove beyond a reasonable doubt that the plants were being cultivated for commercial purposes.
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