This could all go up in smoke

GEORGE WILLIAMS
SEPTEMBER 30, 2019

The Australian

The Australian Capital Territory leads the nation in liberalising drug laws. Last week it became the first Australian jurisdiction to permit the possession, use and cultivation of small amounts of cannabis. From January 31, adults will be allowed to possess 50 grams of dry cannabis and to grow two plants in their home.

The ACT law is modest when compared with the decriminalisation of marijuana elsewhere, including in the US and Canada. It follows on from Australian laws that permit the growing of cannabis for medical and scientific purposes. On the other hand, it runs counter to the prohibitive stance taken to the recreational use of the drug by the federal government.

The question is whether the commonwealth will permit the ACT law to stand. Concerns were quickly raised by Home Affairs Minister Peter Dutton and Attorney-General Christian Porter. Porter has described marijuana as “terribly dangerous” and questioned why any part of Australia would “effectively encourage” more use of the drug.

Federal ministers often criticise laws and policies from other parts of Australia. This takes on a more serious tone when the territories are involved. The ACT and Northern Territory do not possess the same autonomy and independence as the states. They only possess self-government because this was granted by the federal parliament. What was given can be taken away, leaving the commonwealth with an ongoing ability to direct their affairs.

The federal executive could at one time veto any law enacted by the ACT. This power was exercised by the governor-general on the advice of federal ministers and did not require a vote of the federal parliament. The Howard government used this in 2006 to overturn the ACT Civil Unions Act because it saw the law as a step towards same-sex marriage.

The commonwealth has since thought better of having this power, and the executive veto of territory laws was repealed in 2011.

There remains another way the commonwealth can overturn territory laws. The federal parliament can pass its own legislation to revoke the ACT cannabis law. This might even prevent the ACT from passing any future drug laws of this kind. The federal parliament enacted a law in 1997 to override Australia’s first voluntary euthanasia law in the Northern Territory. Since then the territories have been blocked from passing further laws on euthanasia.

The power undoubtedly exists for the federal parliament to assert its will over the ACT. It would be wrong to do so, though. Parliament was right to revoke the executive veto over territory laws and should continue to respect democratic processes in the territories. People in the ACT and Northern Territory should have just as much a right to make local decisions as do people in the states. The commonwealth should not use its special powers to treat them as second-class citizens.

Even if the federal parliament does exercise restraint, this will not be the end of the matter. The interaction between the ACT cannabis law and federal drug law is uncertain.

The federal criminal code punishes the possession of cannabis with up to two years’ imprisonment. However, there is a defence where this possession “is justified or excused by” state or territory law.

The ACT believes that its law provides the needed justification, and so there is a defence under federal law. This was the position of the commonwealth Director of Public Prosecutions, Sarah McNaughton. She concluded that the ACT law appeared consistent with this defence, meaning that people possessing small quantities of cannabis under the ACT law would not be subject to federal prosecution.

Things have since become more complicated. The federal agency has backtracked on this advice, citing further legal complexities. It has also been suggested that the ACT law is not explicit enough to provide a justification or excuse under federal law. These are technical arguments and questions, but the result is that a person in the ACT possessing less than 50 grams of cannabis cannot be sure whether they will be prosecuted.

This may be clarified if the commonwealth initiates a High Court challenge to the ACT law. It might do so on the basis that federal drug law and the ACT decriminalisation are inconsistent. In this case, the federal law would prevail, and the ACT law would cease operation. The federal government took this step in 2013 when it successfully challenged the recognition of same-sex marriage in the ACT.

Recent decades have seen the commonwealth and the territories come into conflict over contentious social issues. In each case, the territories were at the leading edge of reform. Their laws were overturned but change still occurred. Same-sex marriage has been enacted by the federal parliament, and Victoria brought about Australia’s first euthanasia law. Federal intervention succeeded only in delaying these reforms. It remains to be seen whether drug law reform will be yet another example.

George Williams is dean of law at the University of New South Wales.