Can I grow my own if I have a prescription in South Australia?

What the law actually says

Section 33K of the Controlled Substances Act 1984 (SA) creates the cultivation offences, and there is no exception anywhere in it for a person holding a prescription.

Section 33K(2) is the lesser offence: cultivating not more than the prescribed number of cannabis plants, maximum $2,000 or two years' imprisonment. Where that offence is also a simple cannabis offence within the meaning of s 45A, s 33K(3) directs that a sentencing court must not impose any sentence of imprisonment.

Section 33K(1) is the serious limb, and it catches three things: cultivating more than the prescribed number of plants, cultivating intending to supply the plant or its product to another person, and — the one nobody expects — cultivating a cannabis plant by artificially enhanced cultivation. The maximum is $2,000 or two years for a basic offence, rising to $5,000 or five years where the offender is a serious drug offender or the offence is aggravated.

Artificially enhanced cultivation is defined in s 4 as cultivation in a solution comprised wholly or principally of water enriched with nutrients, or cultivation involving the application of an artificial source of light or heat. A tent, a lamp and a single plant is therefore inside s 33K(1), not s 33K(2) — the sentence-limiting protection in s 33K(3) does not reach it, and it is the ordinary way somebody who wants to be discreet goes about it.

None of this is changed by a prescription, and none of it is changed by the Commonwealth licensing scheme, which is a commercial cultivation scheme administered by the Office of Drug Control and has never been a patient pathway.

What happens if it goes wrong

In a rented property there is a second layer that has nothing to do with the criminal law. Cultivation is a breach of the ordinary statutory term in s 71 of the Residential Tenancies Act 1995 (SA) that the premises not be used for an illegal purpose — which, unlike taking a dispensed medicine, this squarely is. That opens the s 80 notice route for the lessor and the s 90 application route for a lessor or an affected neighbour.

It also opens s 80A. Where a lessor is aware of drug related conduct on the premises and testing under s 67B shows contamination as a result, the lessor may terminate by notice — and under s 67B(3) the cost of remediating that contamination becomes a term of the agreement binding the lessor, which is the sort of loss a lessor pursues afterwards.