Last week the ACT Government moved to legalise possessing and growing small amounts of cannabis for personal use. Based on the reaction from some in the Federal Parliament, this might be the latest in a line of federal interventions seeking to curtail the ACT’s aspirations as a progressive jurisdiction.
The cannabis legalisation has received a great deal of national attention. While the ACT is the first jurisdiction to move to legalise the personal use of cannabis, it is one of a number of Australian jurisdictions that have already decriminalised cannabis. There is a clear message from Government that this should be seen as an evolution that is based on evidence and part of a pathway that began with decriminalisation more than a decade ago.
While some have questioned the need to change the current system, there are good reasons the ACT has moved in this direction. There is growing evidence that the war on drugs has done little to stem the use of illicit substances, and significant harms have been caused by repressive approaches to drug use. While decriminalisation has provided the option for fines rather than other sanctions, this is a discretionary power.
Police resources have still been required to deal with cannabis use, and people have still ended up in the courts. There is also evidence that dealing with cannabis use as a criminal issue rather than a health issue creates barriers for users seeking help if they need it. This approach has been grounded in the knowledge that cannabis is the most widely used illicit substance in Australia and is reported as easy to obtain. There is also research that seems to counter some of the potential negative outcomes, with recent research finding that there has not been an increase in the use of marijuana in adolescents in US jurisdictions that have introduced legalisation for medical and recreational use.
Despite all this, and the ACT being given the right to self govern, members of Federal Parliament have raised concerns about the ACT law, and it appears the fate of the legislation may be in the hands of crossbenchers from other parts of Australia that have much higher representation than Territories with the two representatives in the Senate (even though the ACT population is now similar to Tasmania with their 12 representatives).
Any state or territory-based legislation that is potentially inconsistent with a Commonwealth law can face the potential of being ruled invalid. This piece of legislation has additional complexity given our police force is the Australian Federal Police that has Federal and jurisdictional responsibilities. The reality is that there are additional ways for the Commonwealth to get involved, given the Australian Capital Territory Self Government Act 1988 enables the Federal Parliament to intervene and overturn Territory legislation.
The ACT has a reputation of being a progressive jurisdiction and has a history of moving before other governments on social and health issues. However, there has also been a history of the Federal Parliament being quite comfortable denying the ACT’s autonomy when it comes to passing laws. The ACT was thwarted in its attempts to legislate on equal marriage ahead of the plebiscite. It hasn’t been able to move on issues around euthanasia following the Commonwealth’s intervention on Northern Territory laws on this issue, and now we face the potential of another intervention on issues that should be the domain of a jurisdictional government.
This once again highlights the fact that the ACT has less autonomy and additional barriers to legislate on issues that potentially challenge traditional notions, even when based on evidence. On top of less representation because of our status as a Territory, this is undemocratic and deeply concerning.
I think it’s time that we see the ACT be empowered to make our own laws by our own representatives, without the prospect of these being overturned if federal politicians don’t agree.
Rebecca is on the Board of the Canberra Alliance for Harm Minimisation and Advocacy. She is an active member of the ACT Greens