The laws on medicinal cannabis in Australia is not straight forward. Medicinal cannabis's regulatory framework extends to both Federal, State and Territory laws in Australia.
While there are federal guidelines for the cultivation, prescription and supply of medicinal cannabis, Australia's State and Territories each have their own laws regulating access to it and the imposition of penalties.
Federal Laws of Medicinal Cannabis in Australia
Medicinal cannabis is regulated by Federal therapeutic goods regulation, overseen by the Therapeutic Goods Administration (TGA).
When not treated as a therapeutic good, cannabis is considered an illegal drug in Australia which carry heavy penalties including conviction and imprisonment.
For example, it is a crime to import or export, cultivation or possession cannabis.
To be legal, medicinal cannabis products must be registered on the Australian Register of Therapeutic Goods before they can be lawfully supplied.
However, most medicinal cannabis products available in Australia remain unregistered, meaning they have not undergone full TGA approval.
Access to these unregistered products is therefore facilitated through three primary pathways :
- The Special Access Scheme, which allows for prescribers (such as your local GP) to apply for approval to the TGA to prescribe unregistered medicinal cannabis to individual patients. This is usually done within the context of serious illness or where there is a strong clinical justification for doing so.
- The Authorised Prescriber Scheme, which allows medical practitioners to prescribe a specific unregistered medicinal cannabis product for a defined patient group without requiring separate TGA approval for each prescription; and
- Clinical trials, where patients can access medicinal cannabis through participation in approved clinical trials
If successfully granted permission under any of the above schemes, medical practitioners will be able to facilitate imports of medicinal cannabis for patients, or gain access to approved local cultivators of cannabis (usually only for clinical trial purposes).
While Commonwealth law provides the overarching framework for medicinal cannabis regulation, each State and Territory enforces its own laws regarding prescribing, possession and supply of medicinal cannabis.
Medicinal Cannabis Laws in the Australian Capital Territory
The ACT is unique compared to other jurisdictions in Australia in allowing the possession and cultivation of small amounts of cannabis for personal use (whether medicinal or recreational).
This allows for the possession of up to 50 grams of dried cannabis or 150 grams of fresh cannabis by adults, as well as the cultivation of up to 2 plants per person in a household.
Access to medicinal cannabis in the ACT is also lawful if patients have obtained a prescription from a registered medical practitioner via an approved TGA process.
Medicinal Cannabis Laws in New South Wales
In NSW, registered medical practitioners must obtain approval from both the TGA and NSW Health before prescribing unregistered medicinal cannabis.
Similarly, cultivators can only supply medicinal cannabis to patients if they have obtained both Federal and NSW licenses to do so.
Patients can access medicinal cannabis if it is validly prescribed by an authorised medical practitioner and sourced through approved channels such as a pharmacy.
Click here for the penalties for cultivating prohibited plants in NSW.
Medicinal Cannabis Laws in Victoria
In Victoria, registered medical practitioners must obtain approval from the TGA before prescribing medicinal cannabis.
Specific approval from the Victorian Department of Health is also required when prescribing medicinal cannabis to a child under 18 years of age or when prescribing medicinal cannabis to a drug dependent person.
Cultivators and manufacturers of medicinal cannabis in Victoria must obtain appropriate Federal licences to supply, but there are no state-level licensing requirements.
Patients can access medicinal cannabis if it is validly prescribed by an authorised medical practitioner and sourced through approved channels such as a pharmacy.
Under the Narcotic Drug Act 1967 (Cth), marijuana or cannabis may be grown lawfully in Victoria conditional on having a medicinal cannabis license.
Medicinal Cannabis Laws in Queensland
In Queensland, registered medical practitioners must obtain approval from the TGA before prescribing medicinal cannabis.
Specific approval from Queensland Health is also required when prescribing medicinal cannabis to a drug dependent person.
Cultivators and manufacturers of medicinal cannabis in Queensland must obtain appropriate Federal licences to supply, but there are no state-level licensing requirements.
Patients can access medicinal cannabis if it is validly prescribed by an authorised medical practitioner and sourced through approved channels such as a pharmacy.
Medicinal Cannabis Laws in South Australia
In South Australia, registered medical practitioners must obtain approval from the TGA before prescribing medicinal cannabis.
Specific approval from the South Australian Department for Health and Wellbeing is also required when prescribing medicinal cannabis to a patient who is drug dependent.
Cultivators and manufacturers of medicinal cannabis in South Australia must obtain appropriate Federal licences to supply, but there are no state-level licensing requirements.
Patients can access medicinal cannabis if it is validly prescribed by an authorised medical practitioner and sourced through approved channels such as a pharmacy.
Medicinal Cannabis Laws in Western Australia
In Western Australia, registered medical practitioners must obtain approval from the TGA before prescribing medicinal cannabis.
Specific approval from the WA Department of Health is also required when prescribing medicinal cannabis to a patient under 16 years of age or to a drug dependent person.
Cultivators and manufacturers of medicinal cannabis in Western Australia must obtain appropriate Federal licences to supply, but there are no state-level licensing requirements.
Patients can access medicinal cannabis if it is validly prescribed by an authorised medical practitioner and sourced through approved channels such as a pharmacy.
In Western Australia, it is lawful to cultivate or grow marijuana with a medicinal cannabis license for medicinal reasons. Further possessing less than 5 plants is considered as personal use. A medicinal cannabis license is legislated by the Narcotics Drug Act 1976 (Cth).
Medicinal Cannabis Laws in Tasmania
In Tasmania, registered medical practitioners must obtain approval from the TGA before prescribing medicinal cannabis.
Specific approval from the Tasmanian Department of Health is also required through the Controlled Access Scheme, which assesses patient eligibility and clinical justification for use.
Cultivators and manufacturers of medicinal cannabis in Tasmania must obtain appropriate Federal licences to supply, but there are no state-level licensing requirements.
Patients can access medicinal cannabis if it is validly prescribed by an authorised medical practitioner and approved under the Controlled Access Scheme, and sourced through approved channels such as a pharmacy.
Medicinal Cannabis Laws in Northern Territory
In the Northern Territory, registered medical practitioners must obtain approval from the TGA before prescribing medicinal cannabis.
Specific approval from the NT Chief Health Officer is also required when prescribing Schedule 8 medicinal cannabis to a drug dependent person.
Cultivators and manufacturers of medicinal cannabis in the Northern Territory must obtain appropriate Federal licences to supply, but there are no territory-level licensing requirements.
Patients can access medicinal cannabis if it is validly prescribed by an authorised medical practitioner and sourced through approved channels such as a pharmacy.
Drug Driving Laws and Medicinal Cannabis
In all States and Territories in Australia, drug driving laws apply strictly to the presence of THC (the psychoactive component of cannabis) in a person's system whilst driving a motor vehicle, and this applies regardless of whether the cannabis was consumed for medicinal or recreational purposes, regardless of whether or not the person's driving is impaired- unlike drink driving laws.
For example, in NSW, it is an offence under section 111 of the Road Transport Act 2013 (NSW) to have any detectable amount of THC in saliva, blood or urine while driving.
This is an absolute liability offence, meaning that even patients with a valid prescription for medicinal cannabis can be penalised if THC is detected.
For a first offence of drug driving with cannabis in you system, the maximum penalty is a $572 fine via a penalty notice or $2,200 if dealt with in court, along with an automatic licence disqualification of six months and a criminal conviction.
A subsequent offence attracts a $3,300 fine and a 12-month disqualification, which can be extended further depending on the person's driving history with a criminal conviction.
The court has the discretion to not impose a criminal conviction and instead sentence an offender without recording a criminal conviction- also resulting in no loss of license.
Recently, there have been discussions regarding the fairness of applying drug driving laws to medicinal cannabis patients, particularly given that many prescribed users may not be impaired at the time of driving despite testing positive for THC.
Despite these concerns, no Australian jurisdiction currently provides a legal defence or exemption for medicinal cannabis users under drug driving laws.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.