It’s been a decade since the recreational use of cannabis was made completely legal by one nation. Any guesses as to which nation that was? If you said ‘Urugauy’, give yourself ten points.
In the intervening years since President Jose Mujica began his country’s ‘great experiment’, six other nations have joined Uruguay, including Canada, Thailand, Mexico, and South Africa. Multiple US states have also done the same while places like Holland and Portugal have very relaxed decriminalisation rules.
In Australia, we’re a little further behind. Although there is frequent suggestion at both the state and territory and the federal level about legalising the recreational use of cannabis, only one jurisdiction has so far done it. The rest sit in a complicated mix of grey areas and inconsistencies.
Hoping to change all of that is — who else — the Legalise Cannabis Party. On Tuesday, they introduced three identical bills into the state parliaments of New South Wales, Victoria, and Western Australia.
Their legislation, if passed, would allow adults to grow up to six plants, possess and use cannabis in their own homes, and even gift some of their produce to friends.
Speaking to The Latch, party candidate Tom Forrest said that the changes are geared towards “personal use decriminalisation and taking the criminalisation of cannabis out of the equation.”
The move chimes with previous legislation, submitted at a federal level, by the Greens. In May, the Greens announced a draft bill that would create a Cannabis Australia National Agency (CANA). The agency would licence the growing, selling, importing, and exporting of cannabis, as well as the operation of cannabis cafes.
“Law enforcement is spending billions of public dollars failing to police cannabis, and the opportunity here is to turn that all on its head by legalising it,” Greens Senator David Shoebridge said at the time.
The Greens have used Australian Criminal Intelligence Commission data to show that Australia could be earning $2.8 billion a year in tax revenue and law enforcement savings if cannabis was legalised.
This is very much on brand for the party, which is often having similar legislation shot down in state houses of parliament. However, even conservative commentators like Sky News’ Paul Murray have said that they can read the writing on the wall about the direction of this national debate.
The recent election of Legalise Cannabis Party MPs in both Victoria and NSW, as well as the continued success of Greens MPs, has made cannabis law reform all but inevitable, Murray argues. The recent state-level push by Legalise Cannabis only strengthens this argument.
That being said, the inevitability of cannabis legalisation was being talked about by the pot-smoking counter-culture of the 1960s and 70s. Neither of the above parties have a particularly strong sway in politics, and legalisation will require the consent of Labor.
So, just how far off is recreational cannabis legalisation in Australia? How likely are these latest bills to pass? And when might the country eventually legalise the herb? Here’s what you need to know.
Is Cannabis Legal In Australia?
Broadly, no — but it depends on what you mean by ‘legal’.
Medicinal cannabis has been legal in Australia since 2016. The drug can be prescribed in a wide range of forms for the treatment of an even wider range of health complaints. In fact, it’s so easy to access medicinal cannabis in Australia that experts have been cautioning we may have become slightly too liberal in our approach.
As for the non-medical use of the drug, which is a blurry distinction to draw, only the Australian Capital Territory has decriminalised it. With no a prescription, you can carry up to 50gs of cannabis in the ACT and not get criminal charged. However, cannabis can not be sold, shared, or smoked in public.
In all other states and territories, possession of cannabis without a prescription carries a maximum penalty of a few hundred dollar fine and up to three years in jail, depending on where you are caught.
That being said, most states and territories operate a discretionary cautioning system for people found with small quantities of the drug and it would be incredibly unlikely for anyone to be charged for a first-time offence.
In addition, cannabis is considered partially decriminalised in some of the more relaxed jurisdictions. In the NT and SA, the maximum penalty for personal possession is a fine.
Therefore, while not legal, simple possession of cannabis is unlikely to see an individual criminalised in Australia.
When Will Cannabis Be Legal In Australia?
This is the $2.8 billion question. As mentioned above, the recreational use of cannabis is already (sort of) legal in Australia, albeit in one very small part of the country.
At a federal level, the possession of cannabis is illegal. Possession of personal quantities of cannabis carries a two-year maximum sentence.
However, federal police typically deal with import and export cases. Federal law has little impact on state and territory operations when it comes to cannabis, as discovered in practice when ACT legislation clashed with federal law. As such, virtually all personal possession cases are handled by state and territory law enforcement.
So, here’s how close each jurisdiction is to legalising cannabis.
Cannabis Legalization NSW
The legalisation of cannabis looked to be within reach following the recent election of the NSW Labor Party and former legalisation-advocate Chris Minns.
In 2019, the now Premier, Minns, gave a speech arguing for the full legalisation of the drug, saying that it would make it “safer, less potent, and less criminal.”
However, after coming to power in March, Minns has moved back from that position. He has said that the current ease of access to medicinal cannabis has made legalisation unnecessary.
Still, Minns has called for a new ‘drug summit,’ bringing experts together to review the current laws. He has yet to say when or where this will be happening.
NSW is of course one of the states where Legalise Cannabis have introduced their legislation. At the same time, after being knocked back last year, the Greens are also gearing up to reintroduce legislation that would legalise cannabis.
Minns has yet to comment on the Bill, however, Jeremy Buckingham, Legalise Cannabis NSW MP, has said he believes the change in government will make a big difference.
“They are much more receptive, I think, than the previous government,” he said.
“We certainly have the ear of the government, whether or not they respond in a way that’s meaningful, we will see”.
Verdict: Possibly legal in 3-4 years.
Cannabis Legalization VIC
Victoria could be even closer to legalisation than NSW.
Eight of the current 11 crossbench members of the Victorian Upper House support the legalisation of cannabis. Labor needs their support in order to pass legislation, and there is real suggestion that changes could be forced through this term.
That being said, despite the ‘new look’ Parliament, Premier Dan Andrews has long pushed back on drug reforms, particularly cannabis legalisation.
“We have got no plans at this time to do that, and that’s been our consistent position,” Andrews said last year.
Reportedly though, there may be more private support for the change than the Premier is publically letting on.
In March, a cross-party consensus was reached, driven by the two new Legalise Cannabis MPS, to reform drug-driving laws in relation to medicinal cannabis patients. A new bill, which will allow people prescribed the drug to avoid penalties for driving with cannabis present in their system, will be introduced and is expected to pass soon.
Andrews himself has however said he has not shifted on the topic. In regard to the Legalise Cannabis Bill, Andrews stated that “My position is the law as it stands now”.
While he added that he was open to the changes on driving laws, “beyond that,” he’s not about to make any big announcements.
This being said, Andrews is rumoured to announce his retirement soon. His successor could well be more open to change.
Verdict: Possibly legal in 2-3 years
Cannabis Legalization QLD
Queensland is undergoing something of a reputational shift when it comes to drugs. Once one of the states with the harshest penalties for use, laws are currently being considered that would see all personal possession, even for drugs like ice and heroin, treated with professional help, rather than a conviction.
However, when it comes to recreational cannabis, progress does not look as forthcoming. The drug diversion programme currently operates only for cannabis, which the state is looking to expand, and has no further leniency towards this drug in particular.
There did look to be some progress last year when Queensland Labor members voted at their state conference to pursue drug policy reform, including cannabis legalisation. However, party leaders responded by saying they had no immediate plans to do so.
“The Palaszczuk government has committed to exploring how we can improve the criminal justice system to provide a broader range of available responses to low-harm offending and ensure that the system concentrates the resources of courts and prisons on the most serious matters,” a spokesperson for Acting Attorney-General Meaghan Scanlon told the AAP in January, one month before the government announced their drug reform policies.
As such, and with fairly progressive policies already in the works, it would be reasonable to assume that cannabis legalisation will not be high on the agenda for some time.
Verdict: At least a five-year wait.
Cannabis Legalization TAS
Tasmania is an interesting one in that they are both the only Coalition-run government in the whole county and the only jurisdiction that does not penalise medicinal cannabis patients for driving with trace amounts of their prescribed medication in their system.
The Apple Isle, like Queensland, has benefitted enormously from the medicinal cannabis industry, with a number of large producers opening up shop here. As such, you’d think the government would at least be sympathetic to the financial arguments.
The locals as well are some of the most supportive of the plant, with the latest national survey data showing that Tassie has the highest proportion of people who don’t think possession of cannabis should be a criminal offence. 83.2% of Tasmanians hold this opinion, 5.3% higher than the national average.
Still, despite public and industry support, the last time this debate was run, the state government flatly refused to consider the idea.
“Our Government has supported the use of medical cannabis and has enacted improvements to the controlled access scheme to facilitate this. However, we do not support recreational or unregulated use of cannabis,” a government spokesperson said last year.
The Australian Lawyers Alliance drafted legislation that would decriminalise cannabis use in 2021 which was also rejected by the government.
Currently, the Tasmanian government is preparing to release its updated five-year drug strategy plan, but it’s not looking likely that cannabis legalisation will be on there.
Verdict: At least a four-year wait (Unless David Walsh has any say in it)
Cannabis Legalization SA
South Australia could well be the first state to legalise the use of cannabis. After all, SA was the first to decriminalise its use in 1987.
Since then, laws around the drug have wavered through various eras of government crackdowns. The most recent of these was a 2018 bid by the then-Coalition government to elevate cannabis to the same level as other illicit drugs, including heavy fines and jail time. That push lasted about three weeks before SA’s Attorney-General, Vickie Chapman, backtracked following public ridicule.
However, last year, the new Labor government oversaw changes that would have people caught with drugs in their system lose their licence immediately. The law, which came into effect in February, does not make an exception for medicinal cannabis patients.
Although the punishment for cannabis possession is mainly a relatively light fine, the Greens have long been pushing to turn SA into a home for “fine food, wine, and weed.” SA Greens MLC Tammy Franks introduced legislation last year that would do just that, and the bill is currently waiting to be read.
If it passes, we could see cannabis legalised in South Australia within the next few years. But that is a big ‘if’, given the Premier’s history of unapologetic criminal enforcement when it comes to cannabis.
Verdict: Now or never.
Cannabis Legalization WA
Western Australia has followed an interesting path when it comes to cannabis. The state’s comparatively harsh laws make for an interesting contrast to its neighbours who have gone in the opposite direction.
In 2004, WA decriminalised the personal use of cannabis. However, that decision was reversed by Liberal Premier Colin Barnett in 2011 following a major Coalition political campaign against the changes that they eventually won.
Researchers have since said that the change in laws didn’t affect the overall use of the drug, only the amount of people sent to jail for it.
Long-time Premier Mark McGowan repeatedly pushed back on the idea of re-decriminalising or legalising cannabis for recreational use.
“Having freely available cannabis is not our policy,” he told ABC radio last year.
“We do allow for medicinal cannabis for people with arthritis or cancer or those sorts of things. That’s the policy at this point in time.”
However, McGowan stepped down at the start of June, with Deputy Premier Roger Cook taking his place.
Cook might be more open to cannabis legalisation than McGowan. The West Australian’s Chief Reporter Ben Harvey assessed that the former Premier would “never” legalise cannabis as he was “possibly the biggest nerd I have ever met.”
“Mark McGowan says he has never, ever smoked mull and – unlike when Bill Clinton initially denied it – I believe him,” Harvey said on the podcast Up Late.
In contrast, Cook has previously admitted to using cannabis as a student. In 2019, Cook said that he “tried” cannabis but said at the time that, “In line with the McGowan Labor Government, I do not support the decriminalisation of cannabis for recreational use, and that will never happen under this Government.”
Now that it is his government, he appears not to have changed tack. WA Deputy Premier Rita Saffioti responded to the Legalise Cannabis Bill by saying her government does not support the idea.
“We don’t have a mandate on it. It was not something that we took to the election. So, we won’t be supporting that Bill,” Saffioti said.
Harvey argued that the Labor government doesn’t want to repeat the mistakes of the past, wasting time on an issue they see as both fringe and frivolous.
“[McGowan] was a member of parliament in 2002, that was the last time we went down the decriminalise cannabis path – and it distracted Geoff Gallop’s government for two years,” he said.
“Labor burned a lot of political capital so a bunch of stoners could suck down cones without having the man on their backs.”
With majority control of both houses, it seems unlikely that even the two Legalise Cannabis MPs will get legislation through.
“I think it’d be a brave Premier who would make this momentous decision because it is actually breaking new ground,” Legalise Cannabis MP, Dr Brian Walker, said.
Apparently, the new one is not brave enough.
Verdict: When Hell freezes over.
Cannabis Legalization NT
There has not been a whole lot of chatter about legalising cannabis in the Northern Territory, with a sense that the current laws work well enough. As long as you hold less than 50gs of cannabis in the NT, you’ll be let off with a fine.
Territorians are reportedly some of the biggest consumers of cannabis and, according to national survey data, have the highest support for its legalisation. 46.3% believe it should be legal, 5.2% above the national average.
However, the incumbent Labor government, which has been in power since 2016, appear to have no plans to change the laws. In response to a 2019 petition by the Medical Cannabis Users Association of NT, Health Minister and Attorney-General Natasha Fyles said that there were “no plans to legalise cannabis for recreational use”.
Since Fyles took over as Chief Minister in May of last year, she has been battling an ongoing perception of Alice Springs as a criminal hotspot. The idea of promoting a policy seen as ‘soft on crime’ would likely be career suicide.
This is a shame, given ABC analysis has shown that legalisation of cannabis could prove a tourism boom for the territory, bringing millions of dollars into a region badly in need of support.
Verdict: Don’t hold your breath.