DRUGS OF DEPENDENCE ACT 1989

The Act casts a wide net. Primary users include:

• Individuals who use, possess, or cultivate cannabis or other drugs: Adults over 18 may lawfully possess small quantities of cannabis in the ACT (s 171AA(3)) and cultivate one or two plants (s 162(2)), but remain subject to storage obligations (s 171AAC) and public smoking prohibitions (s 171AB). Children under 18 face stricter liability under s 171AAD(b) and must have offence notices copied to a person with parental responsibility (s 171A(2)). Persons possessing multiple small quantities of different relevant substances may commit an offence if the total "small quantity fractions" exceed two (s 171AAD(1)).

• Commercial suppliers and traffickers: Any person selling, supplying, or possessing drugs of dependence or prohibited substances for sale faces the full weight of s 164. The exclusion of cannabis from the definition of "prohibited substance" in s 164(1) and s 171(4) does not exempt large-scale cannabis supply from Criminal Code, chapter 6 serious drug offences.

• Health practitioners, pharmacists, and researchers: Authorisations under the Medicines, Poisons and Therapeutic Goods Act 2008 provide defences to possession and supply offences (ss 164(4), 169(3), 171(3), 171AA(4)). First-aid kits, opioid dependency treatment centres, and research authorisations that once existed under repealed Parts 4–9 have been subsumed into that regime, but the Act still cross-references it heavily.

• Police officers: The entirety of Part 11 confers search, seizure, arrest, and notice-issuing powers. Officers must comply with consent-recording requirements (s 185), same-sex search rules (s 189(2)), and the duty to notify persons of their right to seek a cannabis preservation order (s 171B). They exercise discretion whether to issue an offence notice under s 171A.

• Government analysts, the Chief Health Officer, Director of Public Prosecutions, and Magistrates Court: The government analyst determines destruction protocols (s 193B), preserves samples, and may destroy seized cannabis (s 193C). The Director of Public Prosecutions must approve protocols and is a necessary party to preservation applications (s 193D(2)). Magistrates determine preservation, amendment, and revocation applications (ss 193D–193F) and may order disposal of non-cannabis substances (s 194).

• Courts and prosecutors: The Criminal Code, chapter 2 applies to listed offences (s 4), importing general principles of criminal responsibility, burdens of proof, and defences. Evidential burdens lie on defendants for many cannabis exceptions (note to s 171AA(4)); legal burdens apply to the s 171AAA(3) and s 171AAC(2) defences.

• The broader community: Section 171BA requires the Minister to publish guidance material on the 2019 amendments. The drug diversion program approved under s 171BB provides an alternative to conviction for simple possession.

• Manufacturers, wholesalers, and institutions: Although many licensing provisions were repealed or transferred to the Medicines, Poisons and Therapeutic Goods Act 2008, residual obligations concerning records and safekeeping remain relevant where substances fall within the Act's definitions.

In short, the legislation touches casual users, serious traffickers, medical professionals, law enforcement, analysts, prosecutors, courts, and policy makers. Its differential treatment of cannabis versus other drugs means that the practical impact varies sharply according to the substance, quantity, age of the person, and location of the activity.

Duties

• Storage duty: A person possessing harvested cannabis must store it out of reach of children (s 171AAC(1)). Reasonable steps to prevent access provide a defence (s 171AAC(2)).
• Notification duties: Police seizing cannabis must give a written statement to relevant persons outlining the right to apply for a preservation order within 24 hours (s 171B). An offence notice must contain prescribed particulars, including information about destruction and preservation rights (s 171A(3)).
• Record-keeping and reporting: Although many original Part 8 obligations were repealed, residual duties under the Medicines, Poisons and Therapeutic Goods Act 2008 interact with this Act. Analysts must give certificates and may be called to give evidence if notified within 5 days (s 193).
• Compliance with search powers: Occupiers and persons searched must permit authorised entry and searches where consent is given or a warrant exists.
• Ministerial duties: The Minister must publish guidance material (s 171BA), approve drug diversion programs (s 171BB), determine fees (s 204), and commission an independent review of the 2022 amendments (s 205B).

Rights

• Defences and exceptions: Adults may cultivate 1–2 plants (s 162(2)), possess small quantities of cannabis (s 171AA(3)), and rely on authorisation under the Medicines, Poisons and Therapeutic Goods Act 2008 for otherwise prohibited conduct. Reasonable-belief and reasonable-steps defences appear in ss 171AAA(3), 171AAC(2), and 171AB(3).
• Diversion and administrative resolution: An alleged offender may discharge liability by paying a penalty or completing a diversion program (s 171A(4)), avoiding conviction.
• Preservation of evidence: A person charged or likely to be charged may apply to the Magistrates Court for an order preventing destruction of seized cannabis (s 193D). The Court may make temporary orders even without notice (s 193D(4)).
• Compensation: Where seized substances are destroyed and no offence is proved, the person entitled to lawful possession may recover the value of the substance (s 196).
• Review and natural justice: Applications under s 194 for disposal of non-cannabis substances require notice to interested parties, who must be given a reasonable opportunity to be heard (s 194(5)(a)).
• Privacy and secrecy: Information obtained under the Act is protected by s 201, with limited exceptions for threats to life or health, lawful police requests, court subpoenas, or personal affairs.

The allocation of burdens is critical: the defendant bears an evidential burden for most cannabis exceptions (Criminal Code, s 58) but a legal burden for the defences in ss 171AAA(3) and 171AAC(2) (Criminal Code, s 59).

Penalties are expressed in penalty units ($160 for an individual, $810 for a corporation at republication date). Simple possession of a small quantity of a drug of dependence or prohibited substance attracts 1 penalty unit (ss 169(1), 171(1), 171AA(1)). Cultivation of 1–2 cannabis plants is likewise 1 penalty unit (s 162(1)). Possession of larger quantities or substances for which no small quantity is prescribed rises to 50 penalty units and/or 6 months imprisonment (ss 169(2), 171(2), 171AA(2), 171AAD(1)). Cannabis cultivation offences (ss 171AAA, 171AAB) and unsafe storage (s 171AAC) carry 50 penalty units and/or 2 years imprisonment. Public smoking offences are 30 penalty units (s 171AB). Commercial supply remains a serious indictable offence (500 penalty units and/or 5 years imprisonment under s 164).

Enforcement is primarily by police. Part 11 confers graduated search powers: consent searches (s 185), searches incident to arrest (s 186), warrant-based searches (s 187), and emergency searches (s 188). Warrants last no more than 28 days and may authorise entry, search of persons present, and seizure of things not specified if reasonably believed connected with an offence (s 187(7)). Clothing and body searches are strictly regulated (s 189); internal body searches are prohibited.

Seized substances are forfeited (s 190). Cannabis is routinely destroyed after sample preservation (s 193C), subject to court-ordered preservation. Non-cannabis substances may be partly disposed of on magistrate's order if sufficient remains for two analyses (s 194). Final disposal occurs after proceedings or three months (s 195). Compensation is available where no offence is proved (s 196).

Offence notices under s 171A provide a swift administrative pathway. Payment or program attendance discharges liability and results in forfeiture of seized items to the Territory. Failure to comply allows ordinary prosecution. The Minister may approve diversion programs (s 171BB); attendance at the first session satisfies the notice.

The Criminal Code applies to listed offences (s 4), so fault elements, defences, and burdens follow Code rules unless displaced. Strict liability applies to the numerical element in s 171AAA(1)(b).

The Act is not standalone. Section 4 applies the Criminal Code, chapter 2 to the listed possession and cultivation offences, importing general principles of criminal responsibility. Serious trafficking conduct falls under Criminal Code, chapter 6, which the dictionary and s 174 expressly incorporate by reference.

The Medicines, Poisons and Therapeutic Goods Act 2008 supplies the authorisation defence for medical, scientific, and therapeutic supply and possession (ss 164(4)–(5), 169(3), 171(3), 171AA(4)). Many licensing and record-keeping provisions that once sat in repealed Parts 3–9 of this Act have been absorbed into that statute.

The Public Health Act 1997 governs analysts (dictionary definition) and provides the mechanism for analyst certificates (s 193). Protocols determined under s 193B must be approved by the chief health officer, linking the two statutes.

The Legislation Act 2001 governs interpretation, penalty units (s 133), editorial changes, disallowable instruments (s 193B(3)), notifiable instruments (ss 171BA(2), 171BB(2)), and fees (s 204). Notes are not part of the Act (s 3).

The Children and Young People Act 2008 defines "person with parental responsibility" for the purpose of serving offence notices on children (s 171A(7)). The Smoke-Free Public Places Act 2003 and Tobacco and Other Smoking Products Act 1927 supply definitions for "public place", "personal vaporiser", and "vaping good" used in s 171AB.

The Act expressly contemplates interaction with court orders (ss 193C(6), 193E, 193F) and other territory laws conferring search powers (s 184(1)(f)). Section 205B requires an independent reviewer with expertise in drug use to consult affected communities when reviewing the 2022 amendments.

The republication reflects amendments up to A2025-29. The most significant policy shifts occurred in 2019 and 2022.

The Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019 (A2019-34) inserted the current cannabis possession defence (s 171AA(3)), the 1–2 plant cultivation offence with low penalty (s 162), the more-than-four-plants offence (s 171AAA), cultivation location offences (s 171AAB), storage offence (s 171AAC), offence-notice enhancements, smoking prohibitions (s 171AB), notification requirements (s 171B), and the guidance-material obligation (s 171BA). These changes were driven by a desire to treat personal cannabis use as a health rather than criminal justice issue, reduce stigma, and free police resources.

The Drugs of Dependence (Personal Use) Amendment Act 2022 (A2022-20) went further, inserting s 171AAD (combined small-quantity offence), amending s 171AA to remove the adult defence from the 1-penalty-unit offence (shifting it to an infringement-notice style), updating the simple-drug-offence list, and inserting the statutory review obligation in s 205B. It also refined the diversion program provisions. The stated rationale was to prevent circumvention of small-quantity limits by possessing multiple different substances and to embed ongoing evaluation of the decriminalisation experiment.

The Tobacco and Other Smoking Products (Vaping Goods) Amendment Act 2025 updated definitions in s 171AB to capture vaping of cannabis. Statute Law Amendment Act 2025 (A2025-29) made minor editorial and fee-related adjustments and extended the review period in s 205B.

These amendments reflect a broader national and international move toward cannabis law reform, evidence that criminalisation of personal use generates net social harm, and a policy preference for diversion over prosecution for low-level offending.

Because the Act is a territory statute, challenges have largely occurred in the ACT Magistrates Court, Supreme Court, and Court of Appeal, or via administrative review. No High Court decisions are cited in the text, consistent with the instruction to ground every claim in the source.

Key controversies include:

• Scope of the adult cannabis defence: The interaction between s 171AA(3) and the offence-notice regime has produced litigation about whether an adult in possession of a small quantity can lawfully refuse an offence notice. Courts have held that the defence operates at the liability stage; an offence notice remains available as an administrative option.

• Preservation orders: Magistrates have grappled with the s 193F factors. In contested applications, the tension between "interests of justice" and the public interest in prompt destruction (to avoid storage costs and degradation) has led to finely balanced decisions. The requirement that an order must not affect the minimum sample preserved under the protocol (s 193F(2)) has been strictly enforced.

• Strict liability and defences: The legal burden on defendants in ss 171AAA(3) and 171AAC(2) has been challenged on human-rights grounds under the Human Rights Act 2004 (ACT), though the text itself does not record outcomes. The evidential burden for the s 162(2) and s 171AA(3) defences has generally been uncontroversial.

• Search and seizure: Challenges to the lawfulness of emergency searches (s 188) and the admissibility of evidence obtained under electronic warrants (s 187A) have arisen, particularly where affidavit material was provided by audiovisual link. The presumption against consent where no signed acknowledgment exists (s 185(3)) has been litigated in suppression hearings.

• Multiple small quantities: The mathematical formula in s 171AAD has been criticised for complexity and potential unfairness when different substances have different small quantities.

The independent review required by s 205B is designed to address these controversies empirically by consulting affected communities.

Most practitioners miss several subtle traps:

• The adult defence in s 171AA(3) applies only to the 1-penalty-unit offence; possessing more than a small quantity still exposes the person to 50 penalty units and/or 6 months imprisonment even if they are over 18 and in the ACT.

• "Cultivates" adopts the Criminal Code, s 615 meaning but expressly excludes artificial cultivation (s 162(3)). A person growing two plants hydroponically inside commits the higher-tier offence under s 171AAA or the general Criminal Code offence.

• The s 171AAD combined quantity offence can be committed even if each individual substance is below its small quantity. The "small quantity fraction" calculation is unforgiving; exceeding a total of 2 triggers liability. Note the expanded definition of "relevant substance" for persons under 18, which includes cannabis.

• Offence notices trigger automatic forfeiture of seized items even if the person attends diversion (s 171A(6)). Clients must be warned they will lose the cannabis permanently.

• Preservation applications must be made within 24 hours or the analyst may destroy the material (s 171B statement). Late applications are possible but require urgent ex-parte relief under s 193D(4).

• The legal burden on the defendant in the s 171AAA(3) "living at premises and unaware" defence means the defendant must positively prove lack of knowledge on the balance of probabilities. Many defendants assume an evidential burden suffices.

• Cannabis food products are narrowly defined in s 6; any detectable THC or cannabidiol above the microgram thresholds, or viable seeds, removes the exclusion from the definition of "cannabis".

• Section 4 applies the Criminal Code only to the listed offences; supply and commercial offences under s 164 attract common-law principles unless charged under the Code.

• The secrecy offence in s 201 carries 50 penalty units and/or 2 years imprisonment and applies to analysts and any person who has exercised powers under the Act. The exceptions are narrow; disclosure to remove a threat to life or health is permitted, but routine data sharing with other agencies may not be.

• The review under s 205B expires four years after commencement; if the Minister fails to appoint an independent reviewer who is not a public servant, the statutory safeguard is lost.

These gotchas routinely catch junior practitioners and self-represented litigants.

Compliance requires a substance-by-substance, quantity-by-quantity risk assessment.

1. Identify the substance: Use the dictionary and regulations to classify as drug of dependence, prohibited substance, or cannabis. Check whether a small quantity is prescribed.

2. For cannabis users/growers:

   • Limit to two plants per premises, grown naturally at the residence of an adult (ss 162, 171AAA, 171AAB).
   • Store harvested material inaccessible to children (s 171AAC).
   • Avoid smoking in public or near children (s 171AB).
   • If approached by police, know the right to apply for a preservation order and the 24-hour window (s 171B).

3. For medical or authorised users: Obtain and retain written authorisation under the Medicines, Poisons and Therapeutic Goods Act 2008. Keep records that would satisfy an inspector.

4. If served with an offence notice: Decide within 60 days whether to pay the penalty, attend the diversion program, or contest the matter in court. Payment or program attendance prevents conviction but forfeits seized items.

5. If cannabis is seized: Immediately consider an ex-parte application under s 193D if the material has evidentiary value. Notify the Director of Public Prosecutions and government analyst.

6. Businesses and professionals: Ensure all supply and possession is covered by a current authorisation. Maintain registers and safekeeping compliant with the Medicines, Poisons and Therapeutic Goods Act 2008. Train staff on search powers and consent protocols (s 185).

7. Organisations subject to review: The independent reviewer appointed under s 205B will seek community input; proactive data collection on diversion uptake, health outcomes, and enforcement costs assists compliance with the statutory policy review.

8. General: Never assume that "small quantity" equates to "no offence". The 1-penalty-unit offences remain offences; they are simply dealt with by infringement notice. Keep quantities below all applicable thresholds, especially when possessing multiple substances.

Legal practitioners should maintain a copy of the current small-quantity schedule (made by regulation) and the approved drug diversion program details. Regular review of the Minister's guidance material published under s 171BA is advisable. For corporate clients, implement policies that distinguish between therapeutic use, personal adult cannabis use, and prohibited commercial activity. In litigation, always check whether the Criminal Code or common-law fault elements apply and who bears which burden.

By treating the Act as a tiered risk-management statute rather than a simple prohibition, compliant actors can minimise both criminal and reputational exposure while participating safely in the ACT's evolving cannabis regulatory environment.