One dose of magic mushrooms could still send you to gaol in the ACT
by Simon Beck
Photo by Nataliya Vaitkevich.
As we have probably all heard by now, the Australian Capital Territory has passed the Drugs of Dependence (Personal Use) Amendment Act 2022 (Referred to as the Act henceforth). The Act includes amendments to the ACT’s Drugs of Dependence Act 1989 and the Drugs of Dependence Regulation 2009. It will come into effect on 28 October 2023, a delay intended to facilitate the approval of diversion programs and train police on the new amendments.
The Australian Psychedelic Society believes this is a positive step in moving towards a fairer, more rational and health centred approach to the regulation of psychoactive substances in Australia … but there are caveats. Here I will discuss the legislation and raise a few important points for you to be aware of and a few major concerns we have.
All legislative references herein are for ACT legislation. I am not a lawyer or politician and this explanation should in no way be considered as legal advice. It is intended as a general discussion of the new legislation as I understand it from my reading and may not be completely correct in my interpretation of the legislation.
The Act proposes several new simple drug offences which can be dealt with by police through the issuing of a Simple Drug Offence Notice. These offences involve the possession of up to what is being defined as the “small quantity” of the several different drugs of dependence and prohibited drugs for which a “small quantity” is defined in the Act.
Only ten substances have been included in the Act for now and no simple drug offence can apply to other controlled medicines (referred to as drugs of dependence in the Drugs of Dependence Regulation 2009), prohibited plants and prohibited substances as listed in Schedule 1 of the Criminal Code Regulation 2005.
The substances for which small quantities have been defined in the Act, which will be added to the Drugs of Dependence Regulation 2009, are as follows. These weights include any admixture, except in the case of lysergic acid and lysergide, where the weight refers to the pure substance.
(Drugs of Dependence (Personal Use) Amendment Act 2022 (ACT), Part 3, Section 6.)
It is unclear to us at this stage how the amount of LSD in any given form would be determined for this purpose, but it seems that the intention is to consider up to 1000 micrograms (1mg) of pure LSD, in up to five discreet dosage units (tabs, gels etc) of up to 200 micrograms each to be a small quantity for the purposes of the Act.
We believe that unfortunately the whole weight of psilocybin containing mushrooms may be counted towards the quantity of psilocybin. We believe this means the small quantity of psilocybin is practically useless to be included here as 1.5g of dry mushroom is less than a single dose of any of the species of psilocybin containing mushroom found in Australia, and where a fresh mushroom typically weighs 10x more than it will once dried. For example, 3.5 grams of dried Psilocybe cubensis, a typical dose of this species, is more than double the small quantity of psilocybin and is even over the traffickable quantity of psilocybin in the ACT, and would weigh ~35g before drying.
It is important to note that this does not mean you can possess all of the listed substances in their small quantity amounts. Where a person possesses more than 2 of the listed substances, the fraction of the maximum small quantities for each of those substances possessed are combined and must be less than 200% to be eligible for a simple drug offence notice. The following comes from the explanatory statement regarding the amendments made to the Act before it was passed by parliament:
... this provision would apply where a person was carrying an amount equal to 80 per cent of the small quantity threshold for drug A, an amount equal to 70 per cent of the small quantity threshold for drug B, and an amount equal to 60 per cent of the small quantity threshold for drug C. This is because those 3 percentages add up to more than 2. That is: 70/100 + 80/100 + 60/100 = 210/100 = 210% = 2.1.
(Supplementary Explanatory Statement, Drugs of Dependence (Personal Use) Amendment Act 2022 (ACT), Amendment 9 – Clauses 7-12).
For those over the age of 18 a small quantity of cannabis will not be included in the above calculation in the instance of possession of multiple substances. For those under 18, a small quantity of cannabis is included in this calculation.
This is similar to, though somewhat more lenient than the way the Criminal Code 2002 calculates whether a person in possession of multiple substances will be charged with a traffickable or commercial quantity even where the amounts of each substance are not traffickable or commercial quantities on their own (See Criminal Code 2002, ch. 6, s631) – an important fact to understand for those who have two or more controlled substances/plants/precursors in their possession.
The Simple Drug Offence Notice will require the accused to either pay a fine, currently set at $100, or attend the first session of an approved drug diversion program, within 60 days in either case. This is effectively an extension of the Simple Cannabis Offence Notice scheme established by the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019, in effect since 2020.
Where the accused satisfies the above requirements, no conviction is recorded, no further action may be taken in relation to the simple drug offence, and the person is discharged of liability relating to the simple drug offence. The substances will be seized and forfeited to the Territory.
Unfortunately, the decision of whether to issue a Simple Drug Offence Notice or prosecute for a small quantity of a drug for which a small quantity is listed is at the discretion of the police officer. We know that cannabis caution schemes in Australia have been unfairly applied in a way that means Indigenous Australians, socio-economically disadvantaged individuals and people from other marginalised groups are far more likely to face prosecution for quantities of cannabis that were eligible for cautions.
Where prosecuted, possessing not more than the small quantity of one of the substances included in the Act will incur one penalty unit per offence, currently set at $160 for an individual in the Legislation Act 2001.
Where three or more substances are possessed in fractions of the small quantity that add up to more than 200%, the accused will face up to 50 penalty units, six months in prison, or both. This is the new penalty established in the Act for possession of more than the small quantity but less than a traffickable quantity of a relevant substance, or possessing less than the traffickable amount of a controlled or prohibited substance for which a small quantity is not defined.
These offences for possession of less than the traffickable amount of a relevant substance previously carried a penalty of up to 50 penalty units or two years in prison.
You may also face more serious charges under the Criminal Code 2002 for trafficking or commercial quantities if the fractions of the traffickable or commercial quantity of two or more substances possessed amount to more than 100% (See Criminal Code 2002, ch. 6, s631).
Sensibly, the Act amends the Drugs of Dependence Regulation 2009 to include the amount to be paid as a fine for a Simple Drug Offence Notice, the list of Drugs of Dependence and Prohibited Substances for which a small quantity has been listed, and the small quantity for each of these substances. This means these aspects of the law can be changed by the Minister for Health who administers the Drugs of Dependence Act 1989, without full parliamentary discussion or approval. This should make the process of including new substances and changing what is considered a small quantity for the substances listed more straightforward than having the Act passed by parliament initially.
The Act also demands an independent review of the amendments after they have been in effect for two years. This review will present another major opportunity to express concerns about what isn’t working in the current amendments and advocate for more meaningful changes.
The Australian Psychedelic Society intends to continue to advocate to see the inclusion of an entry for psilocybin-containing mushrooms, both fresh and processed, in addition to the entry for psilocybin, which is essentially unheard of as a pure substance on the market. South Australia has both psilocybin and psilocybin-containing mushrooms in their relevant legislation with appropriately different weight limits. This makes far more sense than the unfair inclusion of the whole weight of a dry mushroom that is likely to contain only a few percent by weight of psilocybin.
Including different weight limits for fresh and processed (dried/powdered) psilocybin mushrooms would be similar to the separate entries for freshly harvested cannabis and processed (dried) cannabis. This would prevent people being charged with far more serious offences for possessing the same number of doses worth of fresh rather than dried mushrooms.
We will seek to clarify whether the prosecution will base the weight of psilocybin possessed on an analysis of the seized psilocybin mushrooms rather than the whole weight of the mushrooms. We will also seek to clarify whether a Simple Drug Offence Notice could be issued following this analysis if the amount of actual psilocybin possessed is less than the small quantity defined, where a person has then already been charged with a greater offence. For trafficking offences in the ACT, the prosecution can elect to have a substance analysed and charge on the basis of that analysis, or to charge on the basis of the whole weight of a mixed or impure substance. In all cases where a substance is seized, it must be sent for analysis and the defendant can elect to call the analyst as part of their defence. We are uncertain whether that analysis would typically provide a quantitative measure of the level of psilocybin contained in the mushroom material or how the prosecution would generally elect to determine the weight of psilocybin possessed in order to determine the charge.
The Australian Psychedelic Society firmly believes the scheme should be expanded to include a far greater range of controlled and prohibited substances, particularly psychedelics. We will continue to advocate for these changes and to ensure that the small quantity limits are reasonable and representative of typical patterns of consumption.
The Australian Psychedelic Society also believes that the possession of small quantities of many currently controlled or prohibited substances should not be a criminal offence. Mandating anyone in this position to either pay a fine or attend treatment will create an inequitable system. It will also add an unmanageable burden to existing treatment services, necessitating the allocation of resources to drug diversion programs that would, in our view, be far better spent on other aspects of harm reduction and the provision of treatment services to those who want to change their patterns of substance use. We will continue to advocate towards this goal.
We also note that depenalisation or decriminalisation does not reduce the risks associated with black market supply of psychoactive substances. These models also do nothing to remove the revenue generated by black market sales of illicit substances from the hands of criminal enterprises who are often also involved in activities that significantly harm individuals and society such as people smuggling, forced sex work, gun trafficking, extortion and violent crime. Only a legal, regulated and equitable supply can address these concerns.
In summary, while this is a good first step in achieving more sensible drug policy in Australia, in our view it does not go far enough to address the harms that result from the criminalisation of psychoactive substances, which are often disproportionately greater than the harms of those substances themselves.
It is important that you understand the details of the amendments to ensure you are not at risk of more serious offences. And it is important to note that the amendments do not come into effect until 28 October 2023.
References
Drugs of Dependence (Personal Use) Amendment Act 2022 (ACT), https://www.legislation.act.gov.au/a/2022-20/
Drugs of Dependence Act 1989 (ACT), https://www.legislation.act.gov.au/a/alt_a1989-11co/
Criminal Code Regulation 2005 (ACT), https://www.legislation.act.gov.au/sl/2005-2/
Criminal Code 2002 (ACT), https://www.legislation.act.gov.au/a/2002-51/
Drugs of Dependence Regulation 2009 (ACT), https://www.legislation.act.gov.au/sl/2009-5/
Supplementary Explanatory Statement (As presented with Government amendments on 20 October 2022), Drugs of Dependence (Personal Use) Amendment Act 2022 (ACT), https://www.legislation.act.gov.au/b/db_63822/
Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019 (ACT), https://www.legislation.act.gov.au/a/2019-34/
