8 / 8 / 2021

The Limits of Cannabis Legislation [ACT]

In a first for Australia, the ACT has become the country’s only jurisdiction to legalise low-level personal cannabis possession and cultivation. Before getting too excited or outraged, depending on your stance on this, it is important to understand the limited scope of these changes.

For adults (18 years or older) it is no longer a crime under ACT law to possess up to 50 grams of dried cannabis or 150 grams of wet cannabis harvested from your own cultivated plants. However, all reasonable steps must be taken to store the cannabis in a place outside the reach of children.

It is also legal for an adult to naturally cultivate 1 or 2 cannabis plants on a premises where you live. That premises cannot have more than 4 cultivated plants in total – split among 2 or more residents. This might make marking out who owns which plant or dry or harvested cannabis a must. The plants must be cultivated by the person living there and any exercise or control by someone else could lead to prosecution. Any artificial cultivation (hydroponic; using artificial light or heat) remains a crime.

Cannabis cannot be smoked or vaped in public or where it is exposed to children. Cultivation and possession of cannabis must be strictly for personal use. Selling or supplying cannabis in any way is still a serious offence and the law is silent on how one is supposed to obtain their cannabis seedlings in the first place. The amendments to Canberra’s Drugs of Dependence Act provisions stress the goal of harm minimisation instead of the old focus on crime and punishment.

The huge elephant in the room to these amendments is the Commonwealth offences which still apply in the ACT. Though not a crime under ACT law a police officer could still in theory lay charges for possessing cannabis or cultivation of a plant under the Commonwealth Criminal Code (offences which may carry imprisonment). The only arguable answer to this very awkward state of affairs may lie in an untested legal defence under the Commonwealth Code. It is a potential defence to any Commonwealth offence if the conduct is otherwise justified or excused under another State or Territory Law or if a charged person is under a “mistaken belief” about this justification or excuse.

The ACT also always faces the prospect of the Commonwealth parliament overriding these laws, a power they can wield against the Territories but not the States. They have also shown their willingness to exercise this highly controversial power in dumping the ACT’s early same sex union laws and the NT’s euthanasia laws.

Instead of interfering with ACT affairs or forcing people to test these uncertain legal defences, we would surely hope police would exercise their discretion not to charge people who are genuinely trying to stick to the spirit of the ACT laws. Whether a step in the right direction or not, the experiment of Canberra’s limited legalisation of cannabis should be given a chance to see whether they can genuinely contribute to harm minimisation in the community. Perhaps we might finally then find some other way of looking at this problem beyond the tired old “war on drugs” paradigm.

If you require legal advice relating to cannabis offences contact Hugo Law Group. For leasing, commercial or other civil law advice on cannabis issues contact Chamberlains Law Firm.

By Adrian McKenna