Changes to West Australia’s Misuse of Drugs Act that came into effect last weekend are shifting the state from among Australia’s most marijuana-friendly to one with the most draconian punishments. People convicted of growing a single pot plant or processing the herb could face a mandatory minimum one-year sentence if a child was endangered or suffered harm.
People convicted of a second drug offense, even if they were growing only one plant, face a six-month mandatory minimum if by doing so, they endangered a child’s health by exposing him to the activity. People could get the mandatory minimum, for example, if a child is exposed to fertilizers or pesticides, if he cut himself on gardening equipment, or if he knocked over a potted marijuana plant and injured himself. In passing the amendments, West Australia is criminalizing and harshly punishing acts that would be considered accidents, or, at worst, incidents that could be investigated for child endangerment, if any other plant were involved.
That’s a sea change from last year, when people who were caught growing one or two marijuana plants faced a maximum $150 fine and drug counseling. The amendment is ostensibly aimed at clandestine drug labs — meth lab busts happened at a rate of every other day in the state last year — but they also target those who “cultivate or prepare illicit drugs,” including marijuana.
A spokeswoman for Police Minister Rob Johnson told the Australian AP that it was “unlikely” small-time users and growers with children would be sentenced under the provision, but there was still a risk.
“If the children are exposed to dangerous chemicals and safety hazards as a result of the cultivation or are injured by the cultivation, the new provisions could be applied,” the spokeswoman said.
But the West Australia Law Society criticized the mandatory minimums, saying they removed any discretion in sentencing and were open to abuse.
“You might even find that where the judicial system does not agree with a mandatory jail term for a small-time cannabis grower and user, there will be a reluctance to prosecute or convict,” a society spokesman said. “As it stands, the punishment would certainly not fit the crime and would appear to be excessive.”
The opposition Labor Party, which had championed the state’s earlier progressive marijuana laws, tried to have it both ways. The party voted for the amendments because it didn’t want to be seen as “soft on crime,” but tried to change the legislation to remove mandatory minimums for marijuana growers and users, spokeswoman Michelle Roberts told the AAP. Failing that, Labor voted for it anyway.
And Labor leader Mark McGowan said he disagreed with the new provisions. “Personally, I wouldn’t like to see people go to jail, mandatorily, if they’re growing a couple of marijuana plants — even though we support laws to ensure that is made an offense,” he said.
While Labor can share the credit — or blame — for passage of the amendments, the bulk of the responsibility lies with the ruling Liberal-National coalition government, which pushed the legislation as part of its “tough on crime” agenda.
The law contains “obvious injustices,” Labor spokeswoman Roberts said. “It won’t stop drug cultivation — there’s no evidence to suggest that,” she said. “What it’s going to do is wrap up a whole lot of people unwittingly into a situation where they are facing a mandatory jail term. It’s a huge cost to the community — hundreds of thousands of dollars to incarcerate both parents and to take a child or children into care,” she said. And it doesn’t actually deal with the main issue,” which she identified as drug addiction.
By Phillip Smith