The Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Cannabis Water Pipes) Act was assented to last week. The Explanatory Memorandum is here, and the Second Reading is here.

It will come into effect on 1 January 2012. My flip through the legislation suggests that it looks a lot like the Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Bongs) Bill 2010 that failed to pass in the last session of parliament. Both aimed to prohibit display of cannabis smoking tools in retail outlets and markets.

Section 80U will make it an offence to display a bong or a component of a bong in a retail outlet. Possession of one will not be illegal per se, except for those engaged in a commercial activity: s 80W.

The last time the law was proposed it was going to be a defence for the accused to prove that the bong, or the component of a bong, was designed primarily to be used for a purpose other than administering a drug of dependence. That’s gone. Instead the prosecution will have to prove that the device is capable or intended to be used for the purpose of introducing cannabis fumes into the body. The definition of cannabis water pipe does provide some scope for argument about what a particular device was made or intended for.

Most of the offence sections specify a maximum penalty of 60 penalty units for a natural person, and 300 for a corporation.

Bongs are already sold under the legal fiction that they are used for smoking tobacco. The situation is further complicated by the existence of hookahs, a device which in every way resembles a bong but will now be given a specific exemption under s 80T.

cannabis water pipe means a device—

(a) capable of being used or intended to be used for the purposes of introducing into the body of a person cannabis or other drugs of dependence by the drawing of smoke or fumes resulting from heating or burning the cannabis or other drug through water or another liquid in the device, commonly known as a “bong”; or

(b) that is intended to be used as a device referred to in paragraph (a) but is not capable of being so used because it needs adjustment, modification or addition —

but does not include a hookah;

hookah means a fully assembled device—

(a) used for smoking a substance consisting of tobacco, molasses, fruit, herbs or flavouring, whether the substance contains all or any combination of them, by the drawing of smoke or fumes resulting from heating or burning the substance in the device through water or another liquid in the device; and

(b) that has one or more openings and one or more flexible hoses, each with a mouthpiece through which the smoke or fumes are drawn;

There’s no information about what constitutes adjustment, modification or addition. Presumably it means something more than filling the thing with water. Does selling a bong in its component parts get around the prohibition? Apparently not, as sale of a bong kit or bong component is also prohibited: s 80T.

As someone who has enjoyed the occasional shisha in Sydney Road, I’m pleased to see that hookahs are not being outlawed. Only an outlet which displays more than 3 hookahs will be committing an offence: s 80X. But I don’t see how you can tell them apart in a practical sense.