Important Cannabis & Occupancy Legislation

There are 2 pieces of important legislation involved.

While the existence of a business solely dedicated to helping members of the community cultivate marijuana may catch some people by surprise, PotPlace is a completely legal business operating inside of the ACT and following all relevant ACT legislation to the letter of the law.

Our business has been legally reviewed by our legal partners at Chamberlain’s Law Firm, one of Canberra’s top and most renowned legal practices. All contracts and agreements have been initially drafted by Chamberlain’s to give our client’s peace of mind that what we are doing is lawful and won’t get them in trouble.

The 2 pieces of legislation involved are:

  • Drugs of Dependence Act 1989
  • Residential Tenancies Act 1997

We provide our Grantor’s with extra spending money in exchange for lawfully letting a designated 2m x 1m garden space under the terms of an Occupancy Agreement as set out in Part 5A of the Residential Tenancies Act 1997.

This gives them the right to legally live at the property and cultivate marijuana as is the spirit of the new ACT legislation, the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019.

Below you will find copies of the relevant legislation.

Residential Tenancies Act 1997 - Part 5A - Occupancy Agreements

71A          Who is a grantor?

          (1)   A person is a grantor if the person grants a right of occupation under an occupancy agreement.

          (2)   Grantor includes a prospective grantor.

71B          Who is an occupant?

          (1)   A person is an occupant if the person has a right of occupation under an occupancy agreement.

          (2)   Occupant includes a prospective occupant.

71C          What is an occupancy agreement?

          (1)   An agreement is an occupancy agreement if—

                   (a)   a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and

                   (b)   the premises are for the occupant to use as a home (whether or not with other people); and

                   (c)   the right is given for value; and

                   (d)   the agreement is not a residential tenancy agreement.

          (2)   The agreement may be—

                   (a)   express or implied; or

                   (b)   in writing, oral, or partly in writing and partly oral.

Note        After 6 weeks, the occupancy agreement should be in writing (see s 71E (c)).

          (3)   The right to occupy may be—

                   (a)   exclusive or not;

                   (b)   given with a right to use facilities, furniture or goods.

          (4)   The person given the right to occupy the premises may be—

                   (a)   a boarder or lodger; or

                   (b)   someone prescribed by regulation for this section.

Note        This Act does not apply to nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).

71D          When does an occupancy agreement start?

An occupancy agreement starts on the earliest of the following days:

                   (a)   the day stated in the agreement;

                   (b)   the 1st day both parties have signed the agreement and received a copy signed by the other;

                   (c)   the day the occupant takes possession of the premises;

                   (d)   the 1st day the grantor receives rent from the occupant.

71E          Occupancy principles

          (1)   In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles):

                   (a)   an occupant is entitled to live in premises that are—

                            (i)   reasonably clean; and

                           (ii)   in a reasonable state of repair; and

                          (iii)   reasonably secure;

                   (b)   an occupant is entitled to know the rules of the premises before moving in;

                   (c)   an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;

                   (d)   an occupant is entitled to quiet enjoyment of the premises;

                   (e)   a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;

                   (f)   an occupant is entitled to 8 weeks notice before the grantor increases the amount to be paid for the right to occupy the premises;

                   (g)   an occupant is entitled to know why and how the occupancy may be terminated, including how much notice will be given before eviction;

                   (h)   an occupant must not be evicted without reasonable notice;

                    (i)   a grantor and occupant should try to resolve disputes using reasonable dispute resolution processes.

          (2)   If an occupant occupies a mobile home on land in a mobile home park and the mobile home is not provided by the grantor—

                   (a)   the occupancy principle in subsection (1) (e) applies to the land and any fixtures provided by the grantor, but not the mobile home; and

                   (b)   the grantor is entitled to enter the mobile home only with reasonable notice, at reasonable times, on reasonable grounds and for reasonable purposes.

71F          Regulations about occupancy agreements

          (1)   A regulation may make provision in relation to occupancy agreements, including, for example, standard occupancy terms.

Note        Power under an Act to make a regulation includes power to make different provision for different classes of matters (see Legislation Act, s 48 (1) (a)).

          (2)   A regulation about standard occupancy terms must be consistent with the occupancy principles.

71G         Standard occupancy terms

An occupancy agreement—

                   (a)   must contain, and is taken to contain, terms to the effect of the standard occupancy terms prescribed by regulation; and

                   (b)   may contain any other term that is consistent with—

                            (i)   the standard occupancy terms; and

  • the occupancy principles.

71GA       Occupant may deposit bond with Territory

          (1)   The occupant under an occupancy agreement may deposit the amount of any bond under the agreement with the Territory.

          (2)   The deposit must be accompanied by a written notice that states—

                   (a)   the names of, and addresses for service on, the occupant and the grantor; and

                   (b)   the amount of bond being deposited.

Note        If a form is approved under s 133 (Approved forms—Minister) for this provision, the form must be used.

          (3)   If the Territory accepts the amount of the bond, the Territory must—

                   (a)   give the occupant a receipt for the amount; and

                   (b)   give the grantor a copy of the notice under subsection (2).

          (4)   If the Territory accepts the amount of the bond, the applied provisions apply in relation to the occupancy agreement as if—

                   (a)   the amount had been received by the Territory under part 3 (Bonds); and

                   (b)   the occupancy agreement were a residential tenancy agreement; and

                   (c)   the occupant were the tenant under the agreement; and

                   (d)   the grantor were the lessor under the agreement; and

                   (e)   any dispute between the occupant and the grantor about the bond were a tenancy dispute; and

                   (f)   any other necessary changes, and any changes prescribed by regulation, were made.

          (5)   In this section:

applied provisions means the following provisions:

  • section 27 (Payment of bond money into trust account)
  • section 28 (Interest on amounts in trust account)
  • division 3.4 (Release of bond money).

 

 

Part 6                   Resolution of residential tenancy and occupancy disputes

Division 6.1             Important concepts

72            Meaning of tenancy dispute

          (1)   For this Act, a dispute is a tenancy dispute if it—

                   (a)   is between the parties to a residential tenancy agreement; and

                   (b)   is about, arises from, or relates to, the agreement.

          (2)   A tenancy dispute includes—

                   (a)   a dispute if an application relating to the dispute may be made under part 4 (Termination of residential tenancy agreements) or part 5 (Rental rate increases); and

                   (b)   an application for compensation under this Act.

73            Meaning of occupancy dispute

For this Act, a dispute is an occupancy dispute if it—

                   (a)   is between the parties to an occupancy agreement; and

                   (b)   is about, or relates to, the agreement.

74            ACAT to have regard to occupancy principles

In considering a matter, or making a decision, under this part in relation to an occupancy dispute, the ACAT must have regard to the occupancy principles.

Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019

Offences against Act—application of Criminal Code etc
Section 4, note 1

substitute

Note 1     Criminal Code

The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1):

  • s 162 (Cultivation of 1 or 2 cannabis plants)
  • s 171 (Possessing prohibited substances)
  • s 171AA (Possessing cannabis)
  • s 171AAA (Cultivation of more than 4 cannabis plants at premises)
  • s 171AAB (Cannabis plant cultivation—other offences)
  • s 171AAC (Storage of cannabis)
  • s 171AB (Smoking cannabis in public place or near child).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

5              Cultivation of 1 or 2 cannabis plants
New section 162 (1A)

insert

        (1A)   This section does not apply if the person—

                   (a)   is 18 years old or older; and

                   (b)   cultivates the plants in the ACT.

Note        The defendant has an evidential burden in relation to the matters mentioned in s (1A) (see Criminal Code, s 58).

6              Section 171

substitute

171          Possessing prohibited substances

          (1)   A person commits an offence if the person possesses a prohibited substance.

Maximum penalty:  50 penalty units, imprisonment for 2 years or both.

          (2)   Subsection (1) does not apply if the person is authorised under the Medicines, Poisons and Therapeutic Goods Act 2008, or another territory law, to possess the prohibited substance.

          (3)   In this section:

prohibited substance does not include cannabis.

171AA     Possessing cannabis

          (1)   A person commits an offence if the person possesses—

                   (a)   50g or less of dried cannabis; or

                   (b)   150g or less of cannabis that has been harvested and—

                             (i)   is not dried cannabis; or

                           (ii)   is a mixture of dried cannabis and cannabis that is not dried cannabis.

Maximum penalty:  1 penalty unit.

          (2)   A person commits an offence if the person possesses—

                   (a)   more than 50g of dried cannabis; or

                   (b)   more than 150g of cannabis that has been harvested and—

                             (i)   is not dried cannabis; or

                           (ii)   is a mixture of dried cannabis and cannabis that is not dried cannabis.

Maximum penalty:  50 penalty units, imprisonment for 2 years or both.

          (3)   Subsection (1) does not apply if the person—

                   (a)   is 18 years old or older; and

                   (b)   possesses the cannabis in the ACT.

          (4)   Subsections (1) and (2) do not apply if the person is authorised under the Medicines, Poisons and Therapeutic Goods Act 2008, or another territory law, to possess the cannabis.

Note        The defendant has an evidential burden in relation to the matters mentioned in s (3) and s (4) (see Criminal Code, s 58).

          (5)   In this section:

  • dried cannabis means cannabis that has been subjected to a drying process.

171AAA   Cultivation of more than 4 cannabis plants at premises

          (1)   A person commits an offence if—

                   (a)   the person cultivates a cannabis plant at premises; and

                   (b)   more than 4 cannabis plants are being cultivated at the premises.

Maximum penalty:  50 penalty units, imprisonment for 2 years or both.

          (2)   Strict liability applies to subsection (1) (b).

          (3)   It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant—

                   (a)   lived at the premises when cultivating the cannabis; and

                   (b)   was not aware, and could not reasonably have been expected to be aware, that more than 4 cannabis plants were being cultivated at the premises.

Note        The defendant has a legal burden in relation to the matters mentioned in s (3) (see Criminal Code, s 59).

171AAB   Cannabis plant cultivation—other offences

          (1)   A person commits an offence if—

                   (a)   the person cultivates a cannabis plant; and

                   (b)   the cannabis plant is cultivated at a place other than where the person lives.

Maximum penalty:  50 penalty units, imprisonment for 2 years or both.

          (2)   A person commits an offence if—

                   (a)   the person cultivates a cannabis plant; and

                   (b)   the cannabis plant is cultivated in an area lawfully accessible to a member of the public.

Maximum penalty:  50 penalty units, imprisonment for 2 years or both.

171AAC   Storage of cannabis

          (1)   A person commits an offence if the person—

                   (a)   possesses harvested cannabis; and

                   (b)   does not store the cannabis out of reach of children.

Maximum penalty:  50 penalty units, imprisonment for 2 years or both.

          (2)   It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant took all reasonable steps to ensure that a child could not access the cannabis.

Note        The defendant has a legal burden in relation to the matters mentioned in s (2) (see Criminal Code, s 59).

7              Offence notices
Section 171A (7), definition of simple cannabis offence

substitute

simple cannabis offence means—

                   (a)   an offence against section 162 (Cultivation of 1 or 2 cannabis plants); or

Note        Section 162 does not include artificial cultivation of cannabis plants.

                   (b)   an offence against section 171AA (1).

8              New section 171AB

before section 171B, insert

171AB     Smoking cannabis in public place or near child

          (1)   A person commits an offence if the person smokes cannabis in a public place.

Maximum penalty:  30 penalty units.

          (2)   A person commits an offence if—

                   (a)   the person smokes cannabis; and

                   (b)   a child is exposed to smoke or vapour from the cannabis the person is smoking.

Maximum penalty:  30 penalty units.

          (3)   It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that the defendant—

                   (a)   took all reasonable steps to ensure that the child was not exposed to the smoke or vapour; or

                   (b)   believed on reasonable grounds that the child was 18 years old or older.

Note        The defendant has a legal burden in relation to the matters mentioned in s (3) (see Criminal Code, s 59).

          (4)   In this section:

personal vaporiser—see the Tobacco and Other Smoking Products Act 1927, section 3B.

public place—see the Smoke-Free Public Places Act 2003, dictionary.

smoke cannabis means—

                   (a)   to directly puff smoke, or vapour, from cannabis, or a product that contains cannabis, whether or not a device for the inhalation of smoke, or vapour, is used; or

                   (b)   to hold or to have control over—

                             (i)   cannabis, or a product that contains cannabis, while it is ignited; or

                           (ii)   a personal vaporiser that contains cannabis and that is activated.

Examples—devices—par (a)

  • a personal vaporiser
  • a pipe (including a hookah, water pipe or bong)
  • a cigarette holder

9              New section 171BA

in part 10, insert

171BA     Guidance material

          (1)   The Minister must prepare and publish guidance material to inform the community about the legal and health implications of the amendments of this part made by the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019.

          (2)   The guidance material is a notifiable instrument.

Note        A notifiable instrument must be notified under the Legislation Act.

10            New section 205A

insert

205A        Review of certain amendments related to cannabis

          (1)   The Minister must review the operation of the amendments of this Act made by the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019 as soon as practicable after the end of their 3rd year of operation.

          (2)   The Minister must present a report of the review to the Legislative Assembly within 6 months after the day the review is started.

          (3)   This section expires 5 years after the day it commences.

11            Dictionary, note 2

insert

  • territory law

 

 

Schedule 1         Consequential amendments

(see s 3)

Part 1.1                Criminal Code 2002

[1.1]         Sections 605 and 614, note

substitute 

Note        For additional offences relating to possessing controlled drugs, see the Drugs of Dependence Act 1989, pt 10 and the Medicines, Poisons and Therapeutic Goods Act 2008, s 36.

[1.2]         New section 636A (3) (ba)

insert

                 (ba)   that Act, section 171AA; or

Part 1.2                Medicines, Poisons and Therapeutic Goods Act 2008

[1.3]         New section 9A

in chapter 2, insert

9A           Application of Act to certain cannabis use not prohibited under Drugs of Dependence Act 1989

          (1)   The defined provisions of this Act do not apply to an adult to the extent that the substance is an amount of cannabis that the adult is not prohibited from cultivating or possessing under the Drugs of Dependence Act 1989.

          (2)   In this section:

  • defined provisions of this Act means the following:

                   (a)   section 26 (2) (Supplying declared substances);

                   (b)   section 33 (Manufacturing regulated substances);

                   (c)   section 35 (1) (Obtaining certain declared substances);

                   (d)   section 36 (Possessing certain declared substances);

                   (e)   section 37 (2) (Administering certain declared substances).

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