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High time for legislative change

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High time for legislative change

18th August 2020

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Almost two years after the landmark Constitutional Court judgment legalising the private use of cannabis, the Bill regulating Cannabis for Private Purposes has been introduced. The Bill arrives just in time to meet the deadline set by the Constitutional Court in September 2018 and follows the trail blazed by other countries in legalising cannabis for personal use. The Bill shows all the signs of ‘what were you smoking’ bad drafting.  

The draft Bill will be submitted to Parliament in due course. The Bill allows for: 

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  1. Cultivation of four flowering cannabis plants in a private place per one adult, or eight flowering cannabis plants in a dwelling of two or more adults – or two immature plants instead of each flowering plant;
  2. Possession of an unlimited amount of cannabis seeds or seedlings (not bigger than 15cm tall or wide); 
  3. Possession in a public place of 100 grams of dried cannabis or one flowering cannabis plant;
  4. Private possession of 600 grams of dried cannabis per adult in a private place or 1200 grams at a dwelling of two or more adults; and
  5. The expungement of criminal records for people convicted of cannabis offences under previous legislation.

This does not mean cannabis is now a free for all.  There are five pages of offences including:

  1. Cultivating more than the prescribed quantity of cannabis plants;
  2. Possession of more than the prescribed quantity of cannabis and trafficking;
  3. Cultivating or exchanging cannabis for any compensation, gift, reward, favour or benefit;
  4. Smoking cannabis or not concealing it from view in a public place including:
  • Too close to a window or entrance or causing a hindrance in a crowd; 
  • In a place where cannabis use is not allowed; or 
  • In a car on a public road; 

5. Smoking cannabis in close proximity to a child or non-consenting adult. 

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6. A guardian may not allow a child under 18 years to possess, deal in or consume cannabis but a child may assist the guardian to cultivate cannabis plants which the guardian lawfully possesses for his or her personal use but only in a private place and in the presence and under the supervision of that guardian.

The penalties remain absurdly severe including for instance possible prison sentences of up to 4 years for smoking in a car and up to 15 years for the cultivation or buying of more than nine flowering plants or getting a 17 year old gardener to help cultivate one plant, unsupervised.  

The Bill is overbroad and so vague that many provisions may be unenforceable. The Bill does not live up to the type of progress the Constitutional Court judgment envisaged.  

The Bill will likely be the subject of heated debate in Parliament.  We can expect changes to the document as currently drafted but the legislative process is at last underway.

Submitted by Norton Rose Fulbright

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