Does a cannabis notice show up on a Nationally Coordinated Criminal History Check?

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Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

Most States and Territories in Australia, including NSW and the ACT, operate a Cannabis Caution Scheme. Under this Scheme, offenders can get off from a cannabis charge with a cannabis notice/caution.

The Scheme authorises the Police to issue a cannabis notice or caution to anyone guilty of a minor offence involving Cannabis (possession). The Police will only give a caution where there are no severe impacts or aggravated causes to the cannabis offence.

Will a Cannabis notice show up on a Nationally Coordinated Criminal History Check?

The Nationally Coordinated Criminal History Check usually discloses all details of an individual's criminal records in Australia. Nationally Coordinated Criminal History Checks do not disclose notices, cautions or warnings issued by any other agency without a court order or sentencing.

If the Police issue you a cannabis notice, it can only appear in the Police records database. Notices, Cautions, Warnings issued by the Police are not included in a person's criminal records and hence a Cannabis notice will not show up on a Nationally Coordinated Criminal History Check.

If you apply for a Nationally Coordinated Criminal History Check in Australia, you can be ensured that your cannabis notice will not appear on a Nationally Coordinated Criminal History Check certificate.

Is there a limit to the Cannabis Notice the Court can issue?

Yes, the Police will issue up to two cannabis notices to an offender.

Usually, the first caution provides education about the effects and impacts of cannabis use. The Cannabis notice must give some explanations about the caution and other forms of warnings and conditions.

The second caution for cannabis possession will require the offender to undergo a mandatory education program on cannabis use.

Generally, the Police cannot issue an unlimited number of Cautions/Warnings/Notices for an offender. If the Police records show a pattern of re-offending and stubbornness for the Law, the Police officer will either;

• Issue an infringement notice (for a minor offence), or
• Charge the offender to Court for the crime.

Who can get a Cannabis Caution?

The Cannabis Caution is a discretionary program the Police executes. There is no hard and fast rule to the manner or persons that can receive a Police caution. Of course, all Police cautions the officer issues must not fault the State's legislation on;

• Criminal Acts, and,
• Misuse of Drugs and Substances.

Depending on the circumstance around the offence, a person can get a cannabis caution if;

• It was an offence of possession

Only minor offences of possession can qualify for the Cannabis Cautions Scheme. The Police will not grant you a Cannabis notice if they catch you with a suppliable or commercial quantity. Under the legislation for drug offences or, it doesn't matter that you are supplying the drug.

• You possessed small amounts of Cannabis

The Police will only think of a cannabis notice if the offender has less than 5g in their possession. Any more than this, and;

• The Police may charge you to Court for a drug offence, or
• Issue an expiation notice depending, depending on the circumstance around the crime.

The Law grants a minor cannabis offence as one where the person possesses less than a suppliable amount. However, it may not count in your favour if the Police find any other indicting circumstance regardless of the amount of Cannabis in your possession.

• You have not received more than one caution

The Police cannot issue more than two cautions for a cannabis offence. If the Police records show that you have more than a caution for the same crime, the Police will take further actions. Depending on the offence, the Police may charge you to Court before a Magistrate.

• Criminal records of the offender

It will count in your favour to have a clean record, especially in drug-related matters. The Police consider a person's criminal record, especially those relating to drugs.

The Police may also determine if you are suitable for the Cannabis caution by assessing your other criminal records. Offenders whose records reveal a tendency to re-offend may not get a Police caution.

Other records the Court may look at include the offender's criminal history relating to;

• Sexual assault offences,
• Violent offences,
• Public disturbances like Affray.

• You were not engaged in other criminal activity at the time

It can be an aggravating factor if the Police apprehend you of another crime while possessing Cannabis. Or,

• You attempt to commit a crime through or with the drug.

Other conditions that you must satisfy

The Police cannot issue a cannabis caution (or any other caution) independently. There must be certain conditions around the matter before the Police can give a caution.

• Admitting to the offence

The Police can only issue a Caution if you admit guilt of the offence. However, if you contest the Police findings, you must appear before a Magistrate.

• Consent to receiving the caution

The offender must consent to receive the caution. It includes acknowledging the order and abiding by the conditions the Police attach to the caution.

Breaking any of these conditions may result in the Police charging you for the original offence.

• The caution is appropriate for the offence

The Police can only issue a caution if a Magistrate Court can hear the matter. However, Police cautions serve as a relief to the Australian judicial system and those of the States.

The high number of matters the Court has to hear means that the judicial system may get overwhelmed if every matter was referred to the Courts. Police cautions offer the Australian judicial system an alternative route to settle cases considered less significant for a full-court proceeding.

Will I attend a Court if I get a Cannabis Caution?

No, you don't have/need to attend court. Not unless you intend to contest the decision of the Police officer.

The Police caution is different from a court attendance order or a court summons. Cannabis caution can be issued and settled on the spot. When the Police issue a cannabis notice or any other caution on the spot, the offender can settle such matters or conditions immediately.

The only time you will appear before a Magistrate for a drug offence is;

• If the Police charge you to Court, and
• You receive a court summons/attendance notice.

Can I challenge my Cannabis Caution?

You can challenge all orders or Cautions the Police impose on you in a Magistrate Court. However, you must be cautious in doing this and prepare adequately for your defence.

There are risks to challenging a Police caution in Court depending on how strong your evidence and legal representative is.

If you decide to challenge a Cannabis notice or any other caution/warnings in Court, you must attend and honour all court summons.

The procedures can involve some complex steps that your legal representative will help you with. And Yes, you must employ a legal representative. Generally, only professional lawyers can help you present a good defence.

What happens if I Challenge the Cannabis notice in Court?

Depending on the;

• Evidence,
• Arguments by both parties,
• Other relevant factors the Court considers in the offence,

The Court can issue any of the following judgement on the matter;

Uphold your contest and acquit you of the charges

If the Court finds no reason to find you guilty for the offence, they will acquit and dismiss the charge. It means you don't have to settle for any of the fines or other previous conditions the Police impose.

Dismiss the contest and amend the orders

The Court may also dismiss your contest and uphold the Police caution or penalties. The Court can also amend other conditions that the Police impose.

Find the offender guilty and sentence them

If the Court finds you guilty of all charges and sentences you, it will appear on your Nationally Coordinated Criminal History Check. The Court may also issue further penalties like;

• Imprisonment,
• Fines,
• Conditional release orders,
• Court/Intervention Orders.

What happens after the Police issue a Cannabis Caution?

The Police will usually issue an offender the Cannabis caution on the spot after confirmation of the offence. If the Police issues the caution, the prosecutor/Police can take no further actions against you.

Cannabis caution is an alternative penalty/charge for the cannabis offence of possession.

Why you should seek Police Cautions instead of a criminal record

If the Police accuse you of a cannabis possession offence with clear evidence, it is better to admit to it if;

• The Police will issue a Cannabis caution,
• Give you a Police warning,
• Charge you on infringement/expiation.

A Police caution is better compared to getting a Criminal record. If you get a criminal record, it will appear on subsequent Nationally Coordinated Criminal History Checks.

Since the Nationally Coordinated Criminal History Check has become a legal document of assessment in Australia and all States, every conviction on that record may hamper your chances.

If the Court records a conviction for your drug offence;

• It may appear on your Nationally Coordinated Criminal History Check for life

• It will make you ineligible for some roles

Specific roles require the employer to perform a deep background check on the candidates. And for specific roles (e.g. child work related roles), you may need to disclose;

• ✔ Apprehended Violence Orders,
• ✔ Domestic Violence Orders,
• ✔ Non-conviction sentencing

• You always disclose a conviction

If you get a recent conviction, then in some circumstances you must disclose it at an official party's request. It can be an offence to hide details of your convictions from a legal official.

A police Caution is a far progression than getting a criminal record. If the Police decide to charge the matter to a court, you should employ a lawyer to defend you.

The Diversion program for Young offenders

NSW has a program that allows young people (juveniles) to "escape" conviction for minor drug offences. The Court reckons that having such convictions can affect their future and prospects for an extended period.

Also, instead of punishing the young offender harshly, the legislation allows them to receive Police cautions/warnings. These stipulations are made under the Young Offenders Act 1997 (NSW).

For context, the description for young people may vary slightly among the States and Territories in Australia. The Young Offenders Act 1997 states young people as those under the ages of 18.

The Adult Drug Court

The NSW also has various programs that help adult offenders overcome their serious drug problems. These programs may even run during a Court session to evaluate and treat the offender's drug problems.

The progress of the treatments and rehabs may influence the Court's final ruling on the matter. However, such issues are dedicated to the NSW Drug Court.

Cannabis Offence in the Australian Capital Territory

The Police uses the Simple Cannabis Offence Notice (SCON) to warn offenders of a minor cannabis offence. It is a less severe substitute for a court attendance notice.

Just like in other States, the Police have the discretion to issue an "SCON" where they consider the matter trivial or of less importance to the Court.

If you get an SCON, you will have to remit the fines of $100 in complete settlements. And you will not;

• Have to attend a court hearing, or
• Get criminally charged.

The Drugs of Dependence Act 1989 (ACT) lists some offences that can qualify as simple cannabis offences;

• Planting or cultivating minor amounts (one or two cannabis plants); unless for artificially produced plants. The Court can impose a penalty unit for such an offence. (s. 162 of the Act)
• Possessing less than 50g of Cannabis (s. 171(AA) of the Act)

Why a Cannabis Caution?

The Cannabis Caution Scheme present in all states serves a lot of purposes. Three of the primary purposes of this Scheme is to;

• Reduce the weight on the Judicial system

A lot of crimes in Australia relate to drug offences of negligible impact to the State or people. Prosecuting all of these matters before a Court in Australia or other States can be costly and time-wasting. It will limit the court ability to handle other issues of more significance.

• Reduce the chances of re-offending

In NSW, where the Scheme started in 2000, it has reduced the tendency of people to commit or re-offend a drug-related offence. It shows that cannabis offenders charged to Court have a 14% chance to re-offend, compared to the 5% of those issued a caution.

• Offer pardons to offenders

Some young people are impulsive and lack full knowledge of the impact of their offence. Having a conviction for a drug charge at such periods will hunt them in future. Cannabis caution will guide them on the various laws and impacts of drug offences instead of a conviction.

How can I obtain a Nationally Coordinated Criminal History Check?

Individuals

If you are an individual, you can obtain a Nationally Coordinated Criminal History Check certificate online via Australian National Character Check's Nationally Coordinated Criminal History Check application form. The results are dispatched via email.

Business and Enterprise Customers

Business and Enterprise customers are able to sign up to ANCC's business portal where they can order, manage, track and view candidates' Nationally Coordinated Criminal History Check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC's business portal.

ANCC sends an invite to the applicant to complete their Nationally Coordinated Criminal History Check online and handles the application and informed consent form. Contact ANCC's business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

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