In positive news for those advocating the legalisation of cannabis, low-dose cannabis oil can now be purchased from pharmacies without a prescription.

At present, there are no products approved for sale, but this is expected to change in the near future.

Significantly, it is only low-dose oil that will be available and the products cannot have more than 1 per cent THC (the psychoactive part of the plant).

Despite this, experts have welcomed this news as patients are likely to experience a wide range of benefits by taking cannabis oil.

What is Law on Cannabis Oil?

Since February 2021, the law on cannabis oil allows adults to take a maximum dose of 150mg per day. This is considered a low-dose.

Prior to February 2021, low-dose CBD oil was a schedule 4 drug which required a prescription. It is now a schedule 3 drug and as such can be purchased over the counter without a need for a prescription.

Experts suggest that patients would use this to help them sleep, reduce anxiety or depression and treat pain.

However, issues have been raised as to whether this dose is high enough to provide any meaningful benefit. There is insufficient empirical evidence on the effectiveness – or lack thereof – for cannabis oil at this strength.

Benefit to Patients

Cassandra Hunt, the managing director of cannabis industry consultancy, Fresh Leaf Analytics, labelled the change to the law as, "the biggest milestone since legalisation in 2016".

She also suggested that access to the drug for patients would become more streamlined which would in turn make it much easier for people to use it.

"Previously, they've had to go to a GP and they've had to talk to the GP about what they're trying to treat, and then the GP has had to get special permission in order for them to be able to access a prescription."

Cannabis Oil Not Yet on Shelves

Experts have said that it will take some time for products to pass the rigorous certification process and be available for purchase.  

Ms Hunt said, "In order for companies to get these products registered or available over-the-counter in pharmacies, they have to be registered as an S3 medicine. What that requires is quite significant data about the safety and efficacy and quality of the products."

The issue with this is that there is no data on low dose cannabis oil at present. As such, it will take some time before data can be collated and the effectiveness of the drug at those doses tested.

Opposition to Legalisation of Cannabis Oil

However, not everyone was supportive of the decision. The Australian Medical Association (AMA) voiced their opposition to legalising cannabis oil, even in low doses.

The AMA did not believe pharmacists had the education to properly advise patients, and that side effects could go unchecked.

"Medical practitioners have only been prescribing CBD products for a few years, the evidence is still emerging, more education around its use is required," they said.

There is also the issue of possible side effects. Given there is no need to see a doctor, medical professionals would not be able to properly monitor patients when the cannabis oil is sold through pharmacies.

"There is a risk that patient conditions that are associated with CBD use (e.g. anxiety, psychosis, chronic non-cancer pain, and epilepsy) will go unchecked and cause further harm to the patient," according to the AMA.

However, the decision to make low-dose CBD oil available over the counter wasn't based on its effectiveness, but rather the lack of harm it caused.  

"The scheduling decision was made on the basis of the safety profile of CBD at this dose," a TGA spokesperson said.

Supply Prohibited Drug Offences

Much has also been made of the what effect (if any) this will have on supply prohibited drug offences for cannabis. With the legalisation of cannabis oil, it is expected that there will be less reliance on the black market according to Ms Hunt:

"I think one of the other motivations of the TGA is to make it easier for people to access these products where they might otherwise be using illicit channels. Sometimes those products say they have something in them and that's not in there, so you can't really rely on the fact that you're getting a good product."

She also says that for the first time, as the cost of medical cannabis production comes down, legal products are reaching price parity with the illegal market.

"If you couple that with making (cannabis oil) more easily accessible through pharmacies, that should hopefully make a big difference for people who've been getting relief through those channels, but maybe can't rely on those products being good quality."

This would also lead to an expected decrease in the number of people charged with possess prohibited drug for cannabis.

Drug Possession Lawyers

Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW) sets out that if you have custody and control of a prohibited drug, you can be guilty of an offence.

You can fight a possess prohibited drug charge in two ways. Firstly, the prosecution must prove beyond reasonable doubt:

  1. You had possession (ie. physical control or custody) of the alleged drug; and
  2. You had knowledge or ought to have known that it was there; and
  3. It was a prohibited drug (including cannabis oil).

If any of these elements are not made out, then you can be found 'not guilty'.

The following defences to a charge of possess prohibited drug in the following ways:

  1.  
  2. Illegal search: Police found the drug after an 'illegal search'. This means that police did the search without having a 'reasonable suspicion' that you were involved in illegal activity.
  3.  
  4. Filipetti defence:It is reasonably possible that someone other than you, who had access to the area it was found, had control and custody of the drugs or placed it there. This can apply if the drug was found in a common shared area of a house or car which is also used by others ( Filipetti  (1984) 13 A Crim R 335).
  5.  
  6. Duress: You were forced to have possession of the drug;
  7.  
  8. Necessity: Your actions were necessary in the circumstances

The maximum penalty for Possess prohibited drug is 2 years imprisonment and/or a fine of $2,200. Prior to February 2021, it was an offence to possess cannabis oil.

If you receive a criminal conviction for drug possession, it will stay on your record for 10 years from the date the conviction is recorded. If you receive a jail sentence of more than 6 months (including an Intensive Corrections Order), the conviction will stay on your record for the rest of your life.

If you are placed on a Condition Release Order Without Conviction, it will stay on your record for the duration of the bond. Once the bond has concluded, it will no longer be on your criminal record.

If you receive a 'Section 10' dismissal, it will not stay on your record. These are not handed out lightly for any drug, including cannabis oil. Often it requires significant preparation and persuasive advocacy before a magistrate or Judge.

That is why it is important to obtain advice from specialist drug lawyers who have successfully defended hundreds of these charges. You can see some cases where section 10 dismissals for drug possession were given here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.