Everything you need to know about legalising cannabis in the ACT

ACT Labor backbencher Michael Pettersson says his private member’s bill, introduced in the ACT Legislative Assembly in early December, is as simple as it could be.

It’s a relatively tiny document that amends the definition of an offence relating to the use of cannabis in the Drugs of Dependence Act 1989, and removing the drug from the list of prohibited substances.

If passed the bill would make it legal for adults to possess either 50 grams of cannabis or four cannabis plants.

It bans people from smoking cannabis in a public place, or within 20 metres of a child, and continues to make artificially cultivated - or synthetic - cannabis an offence.

But while ACT Labor and the Greens want to see the bill passed as soon as possible, many questions have arisen since it was introduced.

It is currently illegal to possess any quantity of cannabis in the ACT, but there is a distinction made in the legislation between a simple cannabis offence - 50 grams or two plants - and more serious cannabis offences.

Angela Smith, a federal police officer who is also president of the Australian Federal Police Association, says that if you are caught with 50 grams or less on you, or with two plants in your garden, you’re likely to be given a warning, and then diverted into the health system.

“There is the choice to make a decision and seize and destroy the cannabis and then complete the matter, which means writing up the job,” she says.

“Most - and I’d suggest, all - would be diverted to the drug diversion program.”

This, she says, means ticking a box that sends an alert to the ACT Police education and diversion team, which then informs the restorative justice team, which in turn sends the information to ACT Health, which get in touch with the person involved, who is put through various counselling sessions or whatever is deemed suitable.

If you’re caught a second time with 50 grams or less, you will get a $100 fine - known as a Simple Cannabis Offence Notice. If you don’t pay the fine, you may go to court.

But the most important thing is that while all of this will be recorded in the police system - just like a traffic or driving infringement - you won’t get a criminal record unless you are convicted in a court.

According to Mr Pettersson, his Labor colleagues and Greens parliamentarian Shane Rattenbury, nothing will change except that it will be legal to possess or grow small amounts of cannabis.

But a number of people have pointed out some of the legal and social ramifications that will arise as ripple effects, and are concerned there won’t be enough time or scope to properly debate them before the bill is passed in February.

The ACT branch of the Australian Medical Association does not support the legalisation of marijuana, in the ACT or anywhere. In its submission to the draft bill, dated November 20, the association’s position is that cannabis should be seen “primarily as a health issue and not primarily as a matter of law enforcement”.

It also points to the well-documented health risks of cannabis use, including the link between cannabis abuse and schizophrenia.

“The AMA (ACT) is concerned that certain groups within the population are more at risk of the deleterious effects of cannabis,” the submission says.

The association maintains that the current system of decriminalising the personal use or cultivation of small amounts of cannabis is adequate and works well.

Canberra doctor David Caldicott, who has done extensive research into the effects of drugs and alcohol on different populations, says there are several jurisdictions in the world - Canada, several US states and Portugal among them - that we can look to as examples of how to regulate, rather than prohibit cannabis.

“I guess the question that Australians have to ask themselves is which is more important to them? Do they want to see reduced harms or reduced consumption?” he says.

“From a health perspective, obviously reduced harms is where we'd come at it, and reduced consumption, which almost never results in reduced harms, is probably an ideological or philosophical, occasionally religious position. I think most people have given up on the idea of a completely drug-free Australia - the concept is nonsense.”

Not at this stage. The ACT driving laws currently make it an offence to drive with any amount of cannabis in your system. Mr Pettersson maintains that this is not an issue, and that people won’t suddenly start driving while impaired by cannabis just because possessing a small amount is legal.

But Ms Smith says it’s possible that many in the community might not understand the ramifications of driving after smoking cannabis, which can stay in your system for up to three days after smoking even a small amount.

“Those two pieces of legislation don't talk to each other, and [this bill] has no consideration for the road traffic side of the ledger,” she says.

“Will people think this new law gives permission for more people to smoke cannabis and drive? Who knows? It's difficult to know how society then interprets all that.”

At the very least, she says, there will be a case for a heightened public information campaign around driving and smoking cannabis, to remind people of the road rules.

In the meantime, ACT police chief Ray Johnson has reiterated that the current road safety laws were unlikely to change under the proposed legislation.

There is no mention of the bill of this, and Dr Caldicott says this would be a significant issue that would need to be resolved.

“We don't know whether it has to be 50 grams of certain plants of specific strain, whether or not there's going to be a central seed depository for people who want to grow it,” he says.

“There's none of that detail there, and these are important points that we need to discuss.”

In the meantime, if the bill is passed in its current state, we will just have to assume either that Canberra is some kind of Garden of Eden in which the original seed is yet to be planted, or that there is a thriving black market that will remain conveniently unaffected while people settle into the new reality of growing legal plants and smoking legal dope.

Even Mr Rattenbury has expressed his concern in this respect.

“[The bill] accepts the black market being the premise of the entire system - it does nothing to create a legal supply of cannabis,” he says.

“The Greens have been nationally proposing a regulated market so that you don't have to rely on bikie gangs or random people at the bus interchange to supply you with your cannabis, but that you can actually get cannabis in a way that is legitimate, that doesn't feel like you're being drawn into a criminal system, and this still does nothing to assist that.

“I guess it allows you to grow your own at home, but you've still got to access the original supplier for that.”

Yes. Michael Pettersson himself has confirmed that there will be no household limit on the number of plants, as long as they are "individually cultivated". The point, he says, is to reduce the reliance personal consumers have on the black market and its drug dealers by allowing individuals to cultivate four cannabis plants.

Mr Rattenbury says this is an interesting question.

“Of course, in relation to verge gardens, the nature strip guidelines have still not been released, thus this is somewhat of a no-man’s land question,” he says.

“I suspect that the legal answer may be that it would be permissible to grow your four plants in a community garden, but there may be issues around theft.”

According to prominent barrister Greg Barns, Canberra has every legal right to legalise cannabis.

“Legalising cannabis is something that is well within the jurisdiction of states and territories,” he said.

“They have responsibility for drug policy, as does the Commonwealth, but there is nothing stopping, in my view, the legalisation of any drug in a state or territory.”

Dr Caldicott also points out that “the international drug conventions by which nearly all countries are bound, have a mechanism within them which allows individual jurisdictions to modify their approach to illicit drugs”.

That’s why Canada was able to recently legalise cannabis across the board, and several US states are on board as well.

But what about the federal government? Won’t it overturn such a law? Remember what happened with euthanasia and gay marriage?

Mr Barns says that although the ACT has a history of enacting laws that are then overturned by the Commonwealth, Mr Barns said drug laws were different.

“This is an area where the Commonwealth and states and territories all have jurisdiction, so it's not like gay marriage where the argument was only the Commonwealth had jurisdiction,” he said.

But other experts have warned that the ACT could be headed for another expensive High Court challenge, as the bill sets the territory on a collision course with federal law.

“It would extremely stupid for a federal government to try and overturn a law which is simply bringing the ACT into line with 11 American states, Canada, a number of South American countries and in Europe,” says Barns.

Stupid, perhaps, but is it likely? Some have pointed out that with an election coming up, the federal government will be too busy to take any notice of progressive little Canberra, pushing the envelope once again.

Others have warned that maintaining a full prohibition on all drugs could be just the kind of issue that could be taken up with great enthusiasm by the Liberal government. In fact, the timing couldn’t be better. Watch this space.