Stoners in the ACT got some welcome and surprising news last month of a new Canberra Cannabis Law. The ACT Legislative Assembly passed a law which will make it legal (sort of) for an adult to possess small amounts of marijuana in the Territory from February next year.

We are really worried though. It doesn’t matter whether you agree with legalisation or not, this law is an ugly bodge-job that might lead to some serious legal problems for ACT cannabis smokers.

I should be clear – here at United Legal, we don’t really have a strong opinion on whether weed should be legalised. We can see both sides of that argument. But what we do believe is that if it is going to be legalised, this is not the way to do it.

There are quite a few problems with the cannabis law in Canberra, but I will just mention two of them:

  1. The laws about driving under the influence of drugs don’t make any sense if marijuana is legalised; and
  2. The Territory laws conflict with the Commonwealth laws, and that is a mess.

Canberra Cannabis Law Incompatibility

Lets start with the problems with the Canberra DUI laws and cannabis. Currently in the ACT, it is illegal to drive with any amount of marijuana in your system, even if it is such a small amount that it isn’t affecting you at all. That’s a problem.

Let’s say it’s a Saturday afternoon, and you’re hanging out with a mate. He has a couple of beers, while you smoke a really small amount of weed, just to relax a little. Maybe half a cone. Obviously, neither of you should be driving for a couple of hours. But let’s say 6 hours pass. You are both going to be totally safe to drive, but if you get pulled over, you might get charged and go to court.

You might even lose your license. Meanwhile your mate is totally in the clear. There are even cases of people getting caught with THC (the main chemical in cannabis) in their saliva a couple of days after smoking.

There are good reasons why we have a cut-off of 0.05% for alcohol. This allows for the situation where you have such a small amount of alcohol that it’s not actually making you unsafe. You are still able to drive. Therefore if you have a couple of drinks, you won’t get “done” the next morning.

It means if you have some without even noticing, like in a dessert, you’re all right. If cannabis is going to be legal, we need the same sort of system.

For now, there might be a chance of making that sort of argument when it comes to sentencing – come and chat to us if you get done, and we will see what we can do.

Canberra Cannabis Law: Territory vs Commonwealth

The other big problem is with the Commonwealth laws. In Australia we have two levels of law (state or territory and federal). Possessing marijuana is illegal under both systems. So how does it go when the Commonwealth says that marijuana is illegal, but the ACT says it is legal?

Well, without going too deep into constitutional Law (I’m meant to be writing a blog post, not a book), the Commonwealth government only gets to make laws relating to very specific topics – defence, trade, and that sort of thing. Everything else is for the States to deal with. So in general the federal government doesn’t get to make criminal law as the state law would overrule it. However the ACT is not a state. It is a territory. This particular point makes a huge difference. When we are talking about territories, the Federal Parliament is “top dog”. It can do whatever it wants.

Many Canberrans will remember that before 1988, the was no ACT Legislative Assembly, and no such thing as an ACT law. The territory was just ruled by the Federal Government. All of this means that it is extremely easy for the Federal Government to steam roll over any Territory law it likes.

Cannabis Law in Canberra

Actually, the Commonwealth legislation already exists making it illegal to possess a controlled substance (Criminal Code 1995 (Cth) s 308.1). Even when the ACT laws come into effect, it is still possible to be sent to jail because of the Commonwealth laws. The Commonwealth law says that you “may” be dealt with by the state or territory system instead, but that word “may” is a tricky one –

Does it mean that the judge has to use the Territory laws? If the Commonwealth laws do get used, we would be really interested in running that case. However it’s really hard to know how that will go because the law is very unclear. Of course, if the Federal Government REALLY wants to overrule the Territory, they could pass a law which makes it 100% clear.

Ultimately, the Australian Capital Territory Legislative Assembly
needs to reconsider this bill.

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