If history is anything to go by, often when one Australian State or Territory passes legislation on a particular issue, other jurisdictions tend to follow suit.
At least that’s what many Australians hope will happen in the wake of the ACT’s recent legalisation of personal cannabis possession.
What’s permitted under the new laws?
The laws, which come into effect on 31 January 2020, allow possession of up to 50 grams of dry cannabis per person. They also provide that:
- Any adult in the ACT can legally grow two cannabis plants per person, with a maximum of four per household.
- An adult can be in possession of up to 150 grams of wet cannabis.
- Cannabis cannot be consumed in public, or anywhere near children, and will also have to be stored somewhere inaccessible to children.
- Plants need to be grown where they are not seen by the public or accessible to children.
State/Territory laws versus Commonwealth laws
But the local laws are in conflict of current Commonwealth law, which does not allow personal cannabis use at all. So what does this mean?
Section 109 of the Constitution says that when a federal law is inconsistent with a state or/ territory law, the Commonwealth law will prevail to the extent of the inconsistency/
This means there are still legal risks, because cannabis remains a prohibited substance under Commonwealth law, and as such, police officers in the ACT still have the power to arrest and charge anyone under those laws should they choose to do so.
So, do the local laws have any power?
Well yes and no. This is a complex area, while there is such a significant disparity with the Commonwealth Law. However, the ACT laws attempt to provide a clear and specific legal defence for an adult who possesses small amounts of cannabis in the ACT, but is prosecuted under Commonwealth law and under this federal law, the punishment of possession of marijuana for personal use is a jail term, a maximum of two years in prison.
However, while this is indeed the ‘letter of the law’, for the most part, federal drug enforcement tends to be used to deal with offences that cross borders. Simple possession and small cultivation offences tend to be prosecuted under state and territory law.
Policing the new laws
ACT Police have stated officers have been informed of the new laws, and intend to ‘respect the new territory legislation as best they can,’ focusing less on consumers of cannabis, and more on organised crime pushing large amounts of marijuana and other drugs.
There are also many wondering why the new laws were necessary given that prior to passing this new legislation, the ACT was fairly lenient on anyone caught in possession of 50 grams of marijuana anyway. The ACT was one of the few jurisdictions in Australia which did not make this a criminal offence, which has led some to believe that this legislation is intended to pave the way for cannabis to eventually become commercialised in Canada.
However, the politicians say no. This would require an overhaul of Commonwealth drug laws to make this in any way possible in the ACT.
The law in New South Wales?
While cannabis advocates such as the HEMP Party, based in New South Wales, are hoping that laws around the country will change in line with the new legislation in the ACT, there is no sign of that yet.
In New South Wales, the possession and cultivation of cannabis is a criminal offence, except for medicinal purposes in certain circumstances. Drug possession carries a maximum penalty of two years in prison and / or a $2,200 fine.
However, courts have the discretion not to record a criminal conviction against a person even if he or she pleads guilty to drug possession, or is found guilty. This can be done under a section 10(1)(a) dismissal or a conditional release order without a conviction.
If you are going to court for drug possession, and you wish to plead guilty, there are steps you can take to maximise your chances of avoiding a criminal record. These can be explained to you by an experienced criminal defence lawyer, who can assist you to obtain required materials and present your case in such a way as to give you the best possible chance to walk out of court conviction free.