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Cannabis legal in the ACT but Commonwealth status still in limbo

Dominic Giannini 3 February 2020 45
Cannabis

Cannabis is now legal in the ACT, however federal law has left a legal limbo in the capital. Photo: File.

In an Australian first, Canberrans can now possess and cultivate cannabis for personal use, as legislation comes into effect in the ACT today.

The new laws allow people to possess 50 grams of dry cannabis and grow up to two plants, with a maximum of four plants per house. The limit is increased to 150 grams for fresh cannabis.

However, confusion remains over how the laws will be enforced. Federal Attorney-General Christian Porter has previously stated that Federal laws will still apply, where possession of the plant remains illegal.

However, Chief Minister Andrew Barr has said the ACT legislation will provide a legal defence for those charged under Commonwealth laws.

The efficacy of that argument is unclear as Federal laws take precedence over state laws in the Constitution. As a Territory, the ACT also operates under a different set of legal principles than other Australian states and the Australian Federal Police provide policing services here.

Around three-quarters of Australians believe the possession of cannabis should not be a criminal offence, according to the National Drug Strategy Household Survey (2016), while an ACT Government public opinion survey in 2018 found that more than half of Canberrans wanted the personal use of cannabis to be legalised.

Melinda Lucas from the Drug and Alcohol Foundation says the approach should be about harm minimisation and getting people out of the criminal justice system.

“The Alcohol and Drug Foundation supports drug law reform, and that is a broad term that looks at ways to minimise harm from alcohol or other drugs. One of those harms may be the legal status of drugs,” she told Region Media.

“The cannabis law change in the ACT is something that we have not seen before, so there is not a great deal of evidence at the moment to determine whether legalising cannabis is the best way forward.

“A really important part of this is being to roll out health advice so that people remain aware that cannabis is a psychoactive substance and it does come with a range of harms and risks that people need to be aware of.”

Critics who support a ‘just say no’ approach may also be wasting an opportunity to intervene with the user and provide valuable information that could save a life, Ms Lucas said.

“The evidence is pretty clear internationally that changing the way that criminal or civil penalties apply can impact the harm that it is causing people,” she said.

“People have been using drugs since time immemorial. Why they choose to do it is an age-old question as well. But we do have a social responsibility to do our best.

“If we know we can keep people a little bit safer by giving them good advice then that is not necessarily a bad thing.

“It does not mean that you are condoning the behaviour, it just means that you are saying ‘we prefer that you did not do this, but if you are going to do it here is what you can do to try and make you and the rest of the community safer’.”

Shane Rattenbury

Greens spokesperson for drug law reform Shane Rattenbury says the new law is an important step forward. Photo: File.

However, being an Australian-first, it is unclear what effects the new legislation could have on usage rates in the ACT.

“Cannabis is the most-used illicit substance nationally. Because this model has not been put in place in Australia before, we do not have a baseline yet to make a determination about whether or not we will see an increase of usage in the ACT,” Ms Lucas said.

“It will be a little bit of a watch and learn.”

Greens MLA Shane Rattenbury and spokesman for drug law reform said this legislation is not an end in itself.

“While (the) Bill is an important step forward, there’s still work to be done to ensure that cannabis use is treated as a health issue, not a criminal issue,” he said after the Bill passed the Legislative Assembly.

“Together with our Federal Greens colleagues, we’ll continue to campaign for legalisation at a national level to allow for the supply and sale of cannabis in a nationally regulated market, something the ACT is unable to do on our own.”

The impact of the legislation will be reviewed after three years in accordance with an amendment moved by the Greens.

Other Greens proposals, including increased limits for people using cannabis for medicinal purposes and the establishment of an independent cannabis advisory council, were rejected by Labor and the Liberals.


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45 Responses to Cannabis legal in the ACT but Commonwealth status still in limbo
Mike Glew Mike Glew 4:36 pm 06 Feb 20

Pity ACT Policing still don’t test for drugged driving after this change in the law. I recommend everyone keeps
Off the road until the ACT Police get things sorted.

paulmuster paulmuster 9:30 pm 02 Feb 20

If even just one person substitutes their drug of choice from alcohol to marijuana as a result of this policy shift, it will be a public health success.

Frank Trapani Frank Trapani 9:44 pm 01 Feb 20

"The key element of social control is the strategy of distraction that is to divert public attention from important issues and changes decided by political and economic elites, through the technique of flood or flooding continuous distractions and insignificant information.” And as Peta Maso, correctly response to me, he said: "Frank Trapani a strategy used by people in any sort of power , be it any government or media." How true that is, because, right now, we get distracted from much more serious threats by talking about marijuana.

Whilst, There are two problems for our species' survival - nuclear war and environmental catastrophe - and we're hurtling towards them. Knowingly.

Noam Chomsky.

hughjanis hughjanis 12:49 pm 01 Feb 20

Why are people fine with alcohol but not with cannabis?
I’ve never heard of someone getting stoned then beating there wife and kids like so many drunks
All that’s needed is appropriate road side testing ie impairment levels as opposed to presence. And all will be good

Wendy Young Wendy Young 12:27 pm 01 Feb 20

I'm curious as to how smoke drift will be managed. I don't smoke at all and I don't want to. I do not want smoke from my neighbors impact me and my family. Has this been addressed does anyone know?

    Julie Macklin Julie Macklin 3:32 pm 01 Feb 20

    Likely similar to tobacco smoke spread now. If you live in a house it might not effect you, but in you live in an apartment it likely will. I have walked into a foyer of an apartment in Kingston and it was not far off from like walking into bushfire smoke. The place REEKED of tobacco smoke! It was less in the apartment I visited, but still noticeable. The non-smoking owner had got so used to this smoke they could no longer notice it. All the guests that evening though kept commenting on it, and even if the non-smoker had adapted the smoke was still there. It might have only been one smoker, but they polluted the whole place. I don't see why cannabis smoking will be any different. About time apartments were available that banned smoking of all kinds.

    Wendy Young Wendy Young 3:37 pm 01 Feb 20

    Julie Macklin Exactly. Apparently (this is hearsay not based on research) in Queensland smokers are responsible for their smoke drift and it's impact on others. I have enough trouble with the impact of trouble with tobacco smoke drift. I'm not keen to have no recourse to avoid second hand weed smoke

Imants Ezergailis Imants Ezergailis 12:14 pm 01 Feb 20

Another effect of climate change??? 😂😂😂😂😂

Troy Booth Troy Booth 9:46 am 01 Feb 20

Not legal under federal law, ACT is federal.

Gerard Kesby Gerard Kesby 10:31 pm 31 Jan 20

Bronwyn Ann Kesby get a couple of bushes goin

Neenie Baines Neenie Baines 9:55 pm 31 Jan 20

And when are the police going to have a test that can actually ascertain whether someone’s driving is impaired, rather than just the presence of something they had the day before....

    Bri Travalos Bri Travalos 10:23 pm 31 Jan 20

    Neenie Baines I’m with you I don’t disagree with drug testing on the roads but when you are no longer impaired the substance still shows on the drug test that I disagree with

    Neenie Baines Neenie Baines 10:33 pm 31 Jan 20

    Bri Travalos yep. I don’t think that’s fair. The test needs to catch up to the law. And I don’t even smoke it.

    Simon Wilson Simon Wilson 9:31 am 01 Feb 20

    They are using these tests in Colorado at the moment. No reason we can't have them here already

Charlie Sgroi Charlie Sgroi 8:28 pm 31 Jan 20

What a useless act so called government

rationalobserver rationalobserver 7:57 pm 31 Jan 20

Amusing that we are being implored to “listen to the scientists” when it comes to climate change, yet those same people quite willingly ignore the science when it comes to the ingestion of illegal drugs.

    italk italk 3:51 pm 01 Feb 20

    Cannabis is not an “illegal drug”. It is a friggin’ plant. The only reason it is currently illegal in some places is because of false propaganda campaigns of the past. We are simply fixing mistakes by making it legal.

    paulmuster paulmuster 9:28 pm 02 Feb 20

    On the topic of science – how about you cite some showing that all those who accept climate science are also all drug abusers?

    rationalobserver rationalobserver 6:12 pm 03 Feb 20

    Kinda obvious isn’t it? Just look at any climate change protest march and you see any number of them off their face and not thinking straight 8~)

Ashley Latimer Ashley Latimer 2:14 pm 31 Jan 20

Guys, it's really simple. The Commonwealth's Criminal Code Act 1995 clearly outlines under section 313.1 that it is a defence against the prosecution if the activity is justified under state or territory law.

Now that the ACT has amended our Drugs of Dependence Act to allow the possession and cultivation of Cannabis (with strict guidelines) a person found guilty of such an offence cannot actually be charged. This is a state and terriroty matter, not a commonwealth matter.

Stop being confused - if someone is convicted under the new laws, the courts will throw out the case purely based on their own Act. Media also needs to stop fear-mongering.

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cca1995115/sch1.html?context=1;query=section%20313;mask_path=au/legis/cth/consol_act/cca1995115

    Josh Harley Josh Harley 2:36 pm 31 Jan 20

    To save people having to scroll through and find it:

    Division 313 -- Defences and alternative verdicts

    313.1 Defence--conduct justified or excused by or under a law of a State or Territory

    This Part, other than Division 307, does not apply in relation to conduct if:

    (a) a person engages in the conduct in a State or Territory; and

    (b) the conduct is justified or excused by or under a law of that State or Territory.

    Note 1: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).

    Note 2: A person is not criminally responsible for an offence against this Part if the person's conduct is justified or excused by or under another Commonwealth law (see section 10.5). In 2005, Commonwealth laws that authorised importation, possession or use of controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants or border controlled precursors included the Customs Act 1901 , the Narcotic Drugs Act 1967 and the Crimes Act 1914 .

    313.2 Defence--reasonable belief that conduct is justified or excused by or under a law

    A person is not criminally responsible for an offence against this Part if:

    (a) at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and

    (b) had the conduct been so justified or excused--the conduct would not have constituted the offence.

    Note: A defendant bears an evidential burden in relation to the matter in paragraph (a) (see subsection 13.3(3))

    Also noteworthy is section 308.1 in which someone can be initially charged with the offence:

    Division 308 -- Possession offences

    308.1 Possessing controlled drugs

    (1) A person commits an offence if:

    (a) the person possesses a substance; and

    (b) the substance is a controlled drug, other than a determined controlled drug.

    Penalty: Imprisonment for 2 years or 400 penalty units, or both.

    (2) The fault element for paragraph (1)(b) is recklessness.

    (3) If:

    (a) a person is charged with, or convicted of, an offence against subsection (1); and

    (b) the offence is alleged to have been, or was, committed in a State or Territory;

    the person may be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory that involved the possession or use of a controlled drug (however described).

    Note: Subsection (3) allows for drug users to be diverted from the criminal justice system to receive the same education, treatment and support that is available in relation to drug offences under State and Territory laws.

    (4) However, a person punished under subsection (3) must not be:

    (a) sentenced to a period of imprisonment that exceeds the period set out in subsection (1); or

    (b) fined an amount that exceeds the amount set out in subsection (1).

    (5) Subsection (3) does not limit:

    (a) Part 1B of the Crimes Act 1914 ; or

    (b) section 68 or 79 of the Judiciary Act 1903 ; or

    (c) any other law that provides for a law of a State or Territory to apply in relation to the exercise of federal jurisdiction.

Peter Martel Peter Martel 1:24 pm 31 Jan 20

Smoke it like its legal anyway , I do

April Littrell April Littrell 1:07 pm 31 Jan 20

best time to partake in some, calm us down in this bushfire emergency eh.

Rowan Hurrell Rowan Hurrell 12:32 pm 31 Jan 20

Surely it would be entrapment to say its legal and then prosecute under commonwealth law?

    Nikko Corrigan Nikko Corrigan 12:54 pm 31 Jan 20

    Harley Josh brah it is legal in the ACT it’s the commonwealth who don’t accept it. If it goes to court it’ll be thrown out.

    Josh Harley Josh Harley 12:56 pm 31 Jan 20

    Nikko Corrigan nope, still is not legal in the ACT bro. Read the extract above from ACT Policing. It is neither "legal" in ACT or Commonwealth law. Amendments have been made within ACT law which exempt individuals from criminal liability in certain circumstances.

    Reuben Durham Reuben Durham 12:57 pm 31 Jan 20

    Nikko Corrigan we will see (and I hope you are right). But someone is going to have to be that test case...

    Nikko Corrigan Nikko Corrigan 1:00 pm 31 Jan 20

    From the labour government!?

    Reuben Durham Reuben Durham 1:00 pm 31 Jan 20

    Federal Police aren’t saying it is legal, and that’s who will show up to a call out in the ACT. Still a very murky grey area. Hope it gets cleared up soon.

    Josh Harley Josh Harley 1:01 pm 31 Jan 20

    Hmm interesting, I would absolutely be asking either ACT Labor or ACT Policing to please send across the correct message.

    Nikko Corrigan Nikko Corrigan 1:04 pm 31 Jan 20

    Rowan Hurrell entrapment is a US law not Australian

    Josh Harley Josh Harley 1:05 pm 31 Jan 20

    Bro, first question in that link it states:

    Cannabis is not legal in the ACT, it has been decriminalised. The ACT has removed penalties for adults who possess or use small amounts of cannabis so they can get support without fear of being put through the justice system.

    New rules around personal use of cannabis came into effect on 31 January 2020.

    Nikko Corrigan Nikko Corrigan 1:10 pm 31 Jan 20

    Harley Josh brah it’s legal. It’s illegal to sell. But you can grow it yourself. Plus It was decriminalised years ago. So I don’t know what you mean. I’ve been following this from day dot. It’s legal but not like it is in the US but it’s not illegal in the ACT to possess it. As to why this is all confusing.

    Josh Harley Josh Harley 1:13 pm 31 Jan 20

    I've sent a message to the Government to request an express explanation. As far as I can see, it is not legal. You just can't be charged under ACT law for it, so there is no consequence under ACT law.

    Reuben Durham Reuben Durham 1:21 pm 31 Jan 20

    Nikko Corrigan It is not illegal in the ACT (state law), but it is illegal in Australia (federal law). State law doesn’t automatically trump federal law, hence the confusion.

    Not even the lawyers know how it will shake out. They had the same issue in the US, and as far as I know they have not resolved it, the Feds have just chosen not to prosecute. For now.

    Ashley Latimer Ashley Latimer 1:54 pm 31 Jan 20

    Harley Josh It is now 100% legal by state law to have 1 to 2 plants, and 50 grams of dry bud. This amendment to the legislation has been made and is now, as of today, active in the the 'Drugs of Dependence Act 1989.'

    Because it is not Federal Law, the confusion comes from the fact that ACT has a Federal Police force, not a State Police force. However, the ACT Policing website has outlined precisely what can and can't be done. And the Federal Police have stated their primary concern is large scale criminal operations, not personal and recreational use.

    The Commonwealth has declared Cannabis a state and Territory matter which is precisely why this amendment was able to be made. Therefore, if our police charge a person based on Federal law and it gets taken to court, the court will throw away the case because it is up to the state to enforce, not the Commonwealth.

    https://police.act.gov.au/safety-and-security/alcohol-and-drugs/drugs-and-law

    Josh Harley Josh Harley 2:14 pm 31 Jan 20

    Further to this, see:

    Drugs of Dependence (Personal Cannabis Use) Guidance Material 2020

    Notifiable instrument NI2020–37

    Commencement: This instrument commences on 31 January 2020.

    Legal Implications – General

    The Act maintains it is an offence to cultivate one or two cannabis plants and classifies the offence as a simple cannabis offence.

    Ashley Latimer Ashley Latimer 2:16 pm 31 Jan 20

    Harley Josh Yes, and that very same act explains the exemptions. That statement purely applies to persons under the age of 18 years old.

    Josh Harley Josh Harley 2:27 pm 31 Jan 20

    All I am trying to do is get a full understanding if it is, as per legal definition, "legal" to have. From what I can see, it is not legal. Both ACT Police, ACT Government and the Commonwealth all very clearly stipulate that it is NOT legal, however you may have a defence if you are charged with an offence. This is as opposed to doing something that is legal, in that you can NOT, under any circumstances, be charged with it in the first place (such as, consuming an alcoholic drink in a licensed venue whilst not intoxicated and being over 18 years of age).

    I 100% get that you have a very low risk and shouldn't worry about it, I simply want to either let everyone know very clearly that what they're doing it still considered illegal, or, that it is, in the eyes of the law, 100% legal and they have absolutely nothing to worry about and will NOT be charged with an offence.

    I honestly couldn't care less if you use Cannabis or not, this is not what this is about. Personally I am all for it so long as it does not affect other people, or most importantly, children.

    Kyle Philip Kyle Philip 8:51 pm 31 Jan 20

    Nikko Corrigan you could

    Be done for entrapment but also the police could

    Be done for entrapping you

    Neenie Baines Neenie Baines 9:58 pm 31 Jan 20

    Harley Josh it is legal to grow and smoke. It is illegal to sell it.

    SC Cores SC Cores 8:28 am 01 Feb 20

    Nikko Corrigan right brah... thank you Mr Knowledgeable... not

    A.j. Knowlsy A.j. Knowlsy 5:30 pm 01 Feb 20

    Kyle Philip No you couldn't. The offence if 'entrapment ' doesn't exist under our legislation.

grim123 grim123 9:45 am 31 Jan 20

And further down the path of degeneracy we go…

Legalising drugs wasn’t required to offer assistance to people who have drug problems. The idea that making it legal somehow minimises harm is ridiculous.

    italk italk 3:48 pm 01 Feb 20

    Yes, everyone who uses cannabis is a degenerate and/or has a drug problem. Wow, you are so intelligent and informed. Well done.

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