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Drug Law

1. What is the difference between illegal, decriminalised and legalised?

If a drug is illegal, it is subject to criminal penalties such as a fine, jail time and a criminal conviction. Ecstasy, cocaine and methamphetamines are examples of illegal drugs.

Decriminalised drugs have some legal penalties removed. However, this does not mean that they are legal. Cannabis is currently a decriminalised drug which means that for possession of a small amount, you may receive a fine without being charged.

If something is legal, no criminal penalties apply, although it may be subject to some conditions. For example, people over 18 years old can legally buy and drink alcohol.

2. How much cannabis can I possess?

Since 31 January 2020, cannabis has been decriminalised in the ACT to allow people over 18 years old to possess up to 50g or 2 plants. Each household is allowed to grow a maximum of 4 plants. It remains illegal to smoke cannabis in public. You also cannot expose children to cannabis or put it where they can reach it.

Possession of any larger amount can result in a maximum penalty of $8,000, and/or 2 years imprisonment.

Any hydroponic or artificial cultivation remains illegal, as will growing on commercial or community property, including nature strips.

Possessing an amount over 50g, selling or sharing cannabis is still illegal.

Additionally, it will remain illegal to possess any amount under federal law and the police may still charge you with an offence under these laws.

This means that in the ACT there is still a risk you may be charged for cultivation and possession under the federal law.

If you have any concerns about how the new laws will operate, we recommend that you seek legal advice.

Note that the new laws only apply in the ACT and do not apply in the surrounding NSW region or the rest of Australia.

3. What is a Simple Cannabis Offence Notice (SCON)?

Currently, if you are under 18 and you are found in possession of a small amount of cannabis for personal use, police may issue you with a Simple Cannabis Offence Notice (SCON). The notice comes with a fine of $100 and if you pay within 60 days, it will not be recorded on your criminal history. If you do not pay, it is possible that court proceedings will be brought against you.

4. How long after taking drugs can I drive safely?

Driving with any trace of illicit drugs in your system is illegal.

Drugs can stay in your system for several days depending on the size and potency of the dose and your body’s metabolism. It is possible for drugs to be detected in your system after the effects have worn off.

5. Can I be caught drug driving on prescribed medication?

Yes, some legally prescribed medicines can impair your ability to drive and may result in you being charged with driving under the influence of an intoxicating liquor or drug.

6. Can I lose my licence for drug driving?

Yes, if you are found guilty of drug driving, your licence can be disqualified for up to 3 years as a first-time offender and 5 years as a repeat offender.

7. What are my rights if I’m stopped by police?

For information on Police Powers see our Factsheet 19: “What are my rights if I’m stopped by Police?

Disclaimer

The material in this fact sheet is intended as a general guide only. Readers should not act on the basis of any material in this publication without first getting legal advice about their particular situations.
If you would like more information, please contact Street Law on (02) 6218 7900 or info@canberracommunitylaw.org.au. Street Law is a program of Canberra Community Law Ltd.
© Canberra Community Law Ltd. Not to be reproduced without permission or acknowledgement.
Last updated: 14 May 2021

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Disclosing your criminal history to your employer

1. Can an employer ask me about my criminal history?

Yes and no, it depends on the job.

An employer can ask for your criminal history, when you are applying for certain jobs or licences, or working (including volunteering) in certain jobs/roles. However, unless you are required by law (e.g. working with children or people with a disability), you have no obligation to answer a question about your criminal record.

2. When can an employer ask for my criminal history?

It is important to understand that there will be different requirements depending on the kind of job or licence you are applying for. Employers can only ask you to disclose specific criminal record information if there are certain criminal convictions or offences that are relevant to the inherent requirements of the job. That is, will having a criminal record, or certain convictions or offences, mean that you cannot do all of the essential tasks that the job requires.

For example, does the job require you to work with children or other vulnerable people? A child sexual assault conviction will almost certainly stop you from performing such work. An assault conviction will probably be relevant but depending on its seriousness may not stop you from working in that area. Does the job involve direct responsibility for finance or items of significant value? A fraud conviction may be relevant here. Is a criminal record a barrier to obtaining a licence or registration that is essential to the job?

3. Does my employer need my permission to do a criminal record check?

Yes, if an employer requires a criminal record check, they will need your written consent.

4. Are there any exceptions to the information I need to disclose?

In general, you don’t need to disclose a spent conviction, although there are times when you will need to disclose it. A ‘spent conviction’ is where you:

  • were convicted of less than 6 months imprisonment; and
  • have had 10 years being ‘crime free’ (or if you were dealt with as a child when you were convicted, 5 years). This period starts when a sentence of imprisonment is completed, or if no imprisonment is imposed, from the date of the conviction.

5. When do I need to disclose a spent conviction?

You will need to disclose a spent conviction if you are:

  • employed as a justice of the peace, police officer, prison officer, teacher, teacher’s aide, childcare provider or worker, aged care provider or worker, a carer for people with a disability; or
  • employed or work as a volunteer:
    • in relation to the care, instruction or supervision of children, older people or people with a disability
    • at a place that provides care, instructions, supervision, or any other services to these vulnerable people; or
    • by an organisation that provides those services; or
  • applying for a Working With Vulnerable People Card, firearms licence or to be a security guard or casino employee.

It is important that you disclose your criminal history (including spent convictions) where you are legally required to do so.

Disclaimer

The material in this fact sheet is intended as a general guide only. Readers should not act on the basis of any material in this publication without first getting legal advice about their particular situations.
If you would like more information, please contact Street Law on (02) 6218 7900 or info@canberracommunitylaw.org.au. Street Law is a program of Canberra Community Law Ltd.
© Canberra Community Law Ltd. Not to be reproduced without permission or acknowledgement.
Last updated: 14 May 2021

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I have been discriminated against because of my criminal history, what can I do?

Employment

An employer can seek information about your criminal record where it is relevant to the job in question. Some jobs (for example, those where you work with vulnerable people: children, older people, and people with disabilities) have very strict rules about the criminal record and criminal background of job applicants.

Some employers may even be legally obliged to refuse employment to someone with a particular type of criminal record.

This means that being rejected from a job, or being prevented from obtaining certification required for a job, because of a criminal record will not always mean that you have been discriminated against.

The ACT does have laws dealing with employment discrimination on the basis of spent convictions (see the Street Law ‘Spent Convictions’ factsheet).

Other areas

Laws also prohibit discrimination against you on the basis of a spent conviction by educational facilities, hotels, other accommodation facilities, clubs or people providing goods, services or facilities.

1. Employment

The Australian Human Rights Commission has developed a set of guidelines for the prevention of discrimination in employment on the basis of a criminal record. Here are some key points from those guidelines:

  • Employers should only ask job applicants and employees to disclose specific criminal record information if they have identified that certain criminal convictions or offences are relevant to the inherent requirements of the job
  • Oral and written questions during the recruitment process should not require an applicant or employee to disclose spent convictions unless exceptions to spent conviction laws apply
  • Criminal record checks should only be conducted with the written consent of the individual
  • Information about a person’s criminal record should always be kept private and only used for the purpose for which it is intended
  • The relevance of a person’s criminal record should be assessed on a case-by-case basis against the inherent requirements of the job he or she would be required to do. A criminal record should not generally be an absolute bar to employment of a person.
  • If an employer does take a criminal record into account in making an employment decision, they should only ask questions about a person’s criminal record that relate specifically to the inherent job requirements.

The guidelines can be found in full at https://www.humanrights.gov.au/ publications/human-rights- record.

2. Other Areas

Is it also unlawful for a person to discriminate against you because of your spent conviction or otherwise an irrelevant criminal record by:

  • stopping you from studying at a University or other institution (e.g. Canberra Institute of Technology)
  • stopping you from accessing public premises
  • refusing to give you goods and services, or only giving you goods and services in a particular way
  • refusing you accommodation or only offering you accommodation in a particular way
  • refusing to accept your membership application for a club, or limiting your access to the benefits of being a member of the club.

3. What are my options if I think I have been discriminated against?

3.1. Australian Human Rights Commission

You can make a complaint to the Australian Human Rights Commission (AHRC). The Commission will investigate the complaint and try, where appropriate, to resolve it by helping to facilitate discussion between yourself and the employer. This is a free service. If the matter is not conciliated, the AHRC will, in limited cases, report to the Minister if they consider you have been discriminated against.

3.2. ACT Human Rights Commission

Instead of going to the AHRC, you may make a complaint in writing to the ACT Human Rights Commission (ACT HRC) that you have been discriminated against on the basis of an irrelevant criminal record. The ACT HRC may attempt to conciliate the matter. However, you cannot make a complaint to the ACT HRC against the Commonwealth government.

If conciliation is unsuccessful, you may then take your matter to the ACT Civil and Administrative Tribunal (ACAT). Unlike the ACT HRC, ACAT are able to award you compensation and make other orders, even if you and the person you are complaining about do not agree.

4. Where can I find more information?

  • Call Street Law on 6218 7900 or drop in. We are a free legal service for people who are homeless or at risk of becoming homeless.
  • Visit www.humanrights.gov.au

Disclaimer

The material in this fact sheet is intended as a general guide only. Readers should not act on the basis of any material in this publication without first getting legal advice about their particular situations.
If you would like more information, please contact Street Law on (02) 6218 7900 or info@canberracommunitylaw.org.au. Street Law is a program of Canberra Community Law Ltd.
© Canberra Community Law Ltd. Not to be reproduced without permission or acknowledgement.
Last updated: 14 May 2021

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How to write support letters for a client who is going to the Magistrates Court

When a person is facing a criminal charge it can be helpful to their case if they are able to obtain some character references from independent adults (not family members) who can comment on their character and/or personal circumstances. The following is a list of what a court support letter in relation to a criminal charge should include. The letter should:

  • Have the contact name and address of the person writing the letter
  • Have the date the letter is written
  • Be addressed: To the Presiding Magistrate
  • State who you are (your name and occupation and qualifications (if relevant)) and in what capacity you know the person facing the charge (eg friend, boss, doctor, support worker, counsellor etc)
  • If relevant, describe the nature of the organisation through which the person facing the charge knows you (eg describe the support service)
  • State how long you have known the person facing the charge
  • Indicate that you are aware that the person facing the charge has been charged with an offence (be as specific as possible and name the charge eg Driving under the influence of alcohol or a prohibited substance)
  • Provide some comments on the person facing the charge’s personal circumstances and character, without using extravagant language or exaggerating
  • If relevant, provide information about how you can support the person facing the charge in the future (eg continue to provide counselling / support etc)
  • Provide a contact phone number in case the court wants further information.

Other points to remember:

  • Only original documents can be given to the court so please provide an original letter, not a photocopy
  • The court cannot accept a letter written for another purpose. The letter must address the charge the person is facing on the day
  • If providing medical evidence it is not necessary to also comment on the person’s character. A medical letter also does not need to make reference to the charge
  • Don’t suggest outcomes or punishments. Sentencing is the Magistrate’s role.

Disclaimer

The material in this fact sheet is intended as a general guide only. Readers should not act on the basis of any material in this publication without first getting legal advice about their particular situations.
If you would like more information, please contact Street Law on (02) 6218 7900 or info@canberracommunitylaw.org.au. Street Law is a program of Canberra Community Law Ltd.
© Canberra Community Law Ltd. Not to be reproduced without permission or acknowledgement.
Last updated: 14 May 2021

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What are my rights if I’m stopped by police?

What can police ask you?

The police can ask you for your name and address if they believe you have committed a crime. You must give them this information. It is an offence to provide a false name or address. You can be fined for not complying with the police officer.

The police generally have the power to arrest you if they have reasonable grounds for believing that you have committed or are committing a crime.

1. What information can the police ask me?

  • The police can ask you for your name and address if they have reason to believe you have committed an offence or can give information about a crime that’s been committed. You must give them this information if you are reasonably able to do so.
  • If the police ask you for your name and address, they must tell you why they are asking for your information.
  • You do not have to answer any other questions. It is often best to say nothing if you are unsure whether you should answer any questions.
  • Remember – when you are talking to police nothing is “off the record” and everything you say may be used as evidence in court.

2. What information should I ask the police?

If the police ask for your name and address, you should ask for their details, such as:

  • their name;

and

  • their police station.

You can ask the police officer to write these details down for you. If they refuse to provide this information the police officer can be fined.

3. What can the police ask me to do?

3.1. Move on

The police have the power to direct anyone to leave a public place if they have reasonable grounds to believe that you have recently engaged in or are about to engage in violent conduct in that place. For more information see our “Sleeping or Loitering in a Public Place” fact sheet.

3.2. Search and seize

A police officer has the power to stop, search and detain anyone reasonably suspected of having drugs, something stolen or something relevant to a serious offence on them. A police officer does not need a warrant to conduct this search. However, they must have a factual basis for their suspicion that you have the relevant thing.

If a police officer believes on reasonable grounds that you are in a public place or school with a knife on you, they may conduct an ordinary search of you, conduct a frisk search of you, and may take any knife they find off you.

3.3. Arrest

A police officer generally has the power to arrest you if they believe on reasonable grounds that you have, or are committing, an offence and the arrest is necessary to either ensure that you will appear at court in relation to the offence, to protect the safety of society, to prevent the repetition of the offence or to prevent the destruction of evidence.

If a police officer asks you to go to the police station you should ask if you are under arrest.

  • If you are not under arrest or are not being taken into protective custody you do not have to go.
  • If you are being arrested it is important to ask why. The police officer must tell you the offence you’re being arrested for.

If a police officer asks you to go to the police station you should ask if you are under arrest.

  • If you are not under arrest or are not being taken into protective custody you do not have to go.
  • If you are being arrested it is important to ask why. The police officer must tell you the offence you’re being arrested for.

4. Can the police “strip search” me?

The police can only strip search you if you have been arrested, charged and taken to the police station.

The police generally have the power to arrest you if they have reasonable grounds to believe that you have committed, or are committing a crime.

The police can search you, your bag and your other belongings if you are under arrest and they reasonably believe that you are carrying something related to an offence, or something dangerous.

A strip search can only be conducted where the police reasonably suspect that:

  • you have an item that is evidence in relation to a crime;
  • you have an item that can be seized by police; or
  • a visual inspection of your body will show that you were involved in an offence.

The strip search must be:

  • approved by a police officer with a rank of superintendent or higher;
  • be done in a private area by someone who is the same sex as you; or
  • if no police officer of the same sex is available, the police may ask any other person of the same sex to conduct the search.

If you are under 18, a person whom you trust (like a parent, guardian or another person over 18) must be present.

5. Can the police search my private property?

The police usually need a warrant to enter and search private property such as your home but can undertake a search without a warrant if the police officer has a warrant to arrest someone on the property.

6. Can the police take things from me during a search?

The police can seize any item they find in their search that has something to do with a serious crime or which has been stolen or is dangerous.

If the police take something of yours during a search, they must make a note of what they have taken, and return your items to you after you have been released from custody, providing they don’t relate to an offence.

Disclaimer

The material in this fact sheet is intended as a general guide only. Readers should not act on the basis of any material in this publication without first getting legal advice about their particular situations.
If you would like more information, please contact Street Law on (02) 6218 7900 or info@canberracommunitylaw.org.au. Street Law is a program of Canberra Community Law Ltd.
© Canberra Community Law Ltd. Not to be reproduced without permission or acknowledgement.
Last updated: 14 May 2021

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Disclosing convictions

You may be required to disclose any charges or convictions when applying for certain jobs, licenses, visas or court proceedings.

Different disclosure requirements apply depending on what you are applying for.

1. When you do not have to disclose a past conviction?

    If a conviction of a person is spent

  • you don’t have to disclose information about the spent conviction to anyone; and
  • a question about your criminal history or a conviction is taken not to refer to any spent conviction, but will still refer to convictions that are not spent; and
  • a reference to your character (however expressed) does not allow or require anyone to take the spent conviction into account

2. What is a spent conviction?

In the ACT, a conviction becomes “spent” after 10 years (or 5 years if you were dealt with as a child when you were convicted) of being “crime free”, unless you were sentenced to longer than 6 months imprisonment or convicted of a sexual offence. The period begins to run from the date a sentence of imprisonment is completed, or, where no sentence of imprisonment is imposed, from the date of conviction. If a conviction is “spent” it generally means that you no longer have to disclose to anyone that you have been charged or convicted of that crime. In fact, in the ACT, you may be able to argue that you have been discriminated against if you have been dismissed, treated unfairly or had unfavourable conditions imposed upon you at work because of a spent conviction.

3. When do you still have to disclose a spent conviction?

You may also have to disclose spent convictions if you are applying for a firearms license, applying to be a security guard, to be a casino employee, to be engaged to work with children, or when applying for visas. Some court proceedings will also require you to disclose spent convictions. You should check what offences are required to be disclosed prior to making a statement as to your criminal history.

4. What offences do I have to disclose when applying for a job?

You may sometimes, for example, if you are applying for a job working with children, an adult with a mental or physical disability, an adult who suffers from social or financial hardship, or an adult who has difficulty communicating in English, you may have to apply for registration under the Working with Vulnerable People (Background Checking) Act 2011 (ACT). When applying for registration you must consent to the commissioner checking your criminal history, and you must state whether you have been convicted or found guilty of a relevant offence outside Australia.

If you are registered on the Working with Vulnerable People Register, you must tell the commissioner for fair trading within 10 days after being charged, convicted or found guilty with a relevant offence. It is an offence not to do so and you could be fined up to $8,000.

    A “relevant offence” is one that is:

  • a sexual offence;
  • an offence against the person;
  • an offence involving violence;
  • an offence involving dishonesty or fraud;
  • an offence relating to property;
  • an offence involving possession of, or trafficking in, a drug of
  • dependence or controlled drug;
  • an offence against an animal;
  • a driving offence.

5. Where can I seek help?

  • Call Street Law on 6218 7900 or drop in. We are a free legal service for people who are homeless or at risk of becoming homeless. If we cannot assist you we will refer you to another service for help.
  • Visit the www.humanrights.gov.au for more information.

Disclaimer

The material in this fact sheet is intended as a general guide only. Readers should not act on the basis of any material in this publication without first getting legal advice about their particular situations.
If you would like more information, please contact Street Law on (02) 6218 7900 or info@canberracommunitylaw.org.au. Street Law is a program of Canberra Community Law Ltd.
© Canberra Community Law Ltd. Not to be reproduced without permission or acknowledgement.
Last updated: 14 May 2021

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