27 / 3 / 2023

Decriminalisation of low-level drug possession in the ACT

In late October 2023 new laws will come into effect in the ACT decriminalising possession of low quantities of a range of illicit drugs including cocaine, heroin and methylamphetamine. The general purpose of the new provisions is to shift the focus from a ‘crime and punishment’ regime for small drug possession, with all the costs that involves, to harm-minimisation, health and rehabilitation. Those opposed to the reform are concerned it will only encourage further drug use in Canberra.

The ACT was Australia’s first jurisdiction to decriminalise the possession of small quantities of cannabis and cultivation of a small number of cannabis plants. The Drugs of Dependence (Personal Possession) Amendment Bill 2022 takes the further step of decriminalising small amounts of other illicit drugs and will also be an Australian first.

The provisions apply to a variety of drugs including MDMA, methylamphetamine, cocaine, heroin, and LSD. Instead of facing criminal prosecution for possession of one of these drugs for an offence that used to carry up to 2 years’ imprisonment, police are empowered to issue an “offence notice”, akin to an infringement of $160.  This will avoid court and not end up on a formal criminal record, as if issuing a speeding ticket. Payment of the offence notice will discharge the person from any further liability and no further proceedings can be taken against them.

Police still retain powers to seize and destroy the drug. They also have the discretion not to issue an offence notice and instead divert the person for treatment at an appropriate health service.

Decriminalisation only applies if the amounts possessed, whether pure or mixed with other substances, are no more than what is defined as a “small quantity”. The limit for small quantities is as follows:

  1. Amphetamine – 1.5g
  2. Cocaine – 1.5g
  3. Methylamphetamine – 1.5g
  4. MDMA – 1.5g
  5. Heroin – 1g
  6. Lysergic acid – 0.001g
  7. LSD – 0.0001g
  8. Psilocybine – 1.5g

The laws apply for both adult and children 12 years or older. If police suspect a child has possessed a small quantity of a drug the offence notice must be served on an adult with parental responsibility.

The new laws do not fit neatly with current Commonwealth laws that apply throughout Australia, including in the ACT. Even though possession of small amounts of illicit drugs will be decriminalised in the ACT this conduct remains an offence under the Commonwealth Criminal Code. This means that theoretically any ACT Policing Officer has the power to charge someone with possessing an illicit drug under Commonwealth laws. This same incongruity has existed since low-level cannabis decriminalisation laws came into force several years ago. The experience, so far, is that ACT Policing have generally not elected to charge people with a Commonwealth Offence where it is decriminalised under ACT laws.

From October 2023 onwards all eyes will be on how police manage the new laws and whether they start to have their desired effect in moving away from the courts to harm-minimisation.

Adrian McKenna, Partner