Canberrans who smoke a joint and drive the next day could face the same penalties as the drunkest drivers, even if the drug is legalised, an ACT parliamentary inquiry has heard.
The ACT Law Society says the ACT has the harshest drug driving penalties in Australia, and has expressed doubts about how the laws will interact with a proposal to legalise cannabis for personal use.
The society's criminal law committee chair Michael Kukulies-Smith told a Legislative Assembly committee on Friday there needed to be more harmonisation of the territory's drink and drug driving laws if cannabis became legal.
As it stands, a first-time offender caught with traces of cannabis in their system faces the same maximum penalty as a repeat offender charged with low-level drink driving, or as a driver charged with mid-range drink driving. This is even if they are unimpaired or not intoxicated.
Drivers who have consumed small amounts of cannabis are also subject to the same automatic driver licence disqualification period as a high range drink driver - three years - even if it is their first offence. This can be reduced through the courts to a minimum of six months' disqualification.
"Clearly alcohol is freely available to adults in our community and can be freely consumed by adults in our community but we still quite rightly have drink drive legislation that regulates and punishes people for the degree of impairment that they actually have rather than they have just engaged in their lawful right to consume a single drink," Mr Kukulies-Smith said.
"The same thing could happen with the cannabis legislation - that a person lawfully has a joint one evening, they may not be affected at all the next day however under our current drug drive laws almost certainly if they were pulled over would be detected and guilty of an offence that's punished as if it was ... the highest or harshest drink driving offence that we have in the territory. That’s the concern that we have."
Mr Kukulies-Smith also expressed concern over the vacuum left in the law if cannabis possession and cultivation was removed as a criminal offence in the ACT.
While the proponent of the bill, Labor backbencher Michael Pettersson, said there was a defence for any non-trafficking Commonwealth charge provided that the use is justified or excused by territory law, Mr Kukulies-Smith said that was designed to recognise "legitimate uses" of controlled substances in the community, licenced for use for health or industrial purposes.
He said the ambiguity may mean someone ends up in court as a guinea pig to figure out how the law works.
However the ACT could avoid vacating the field by expressly stating it's an authorisation in the legislation, Mr Kukulies-Smith said.
The inquiry also heard from Winnunga Nimmityjah Aboriginal Health and Community Service chief executive Julie Tongs, who said while drug law reform was well overdue there had to be more options for Indigenous Canberrans battling addiction.
"As we all know Aboriginal people are massively over-represented in the AMC. We also know that very large percentage of Aboriginal people and people from other disadvantaged backgrounds who go to prison are sent there as a result of drug-related crime and their addiction of drugs. We simply have to recognise that drug addiction must be treated as a health issue and not a justice issue. This requires a complete rethink of our drug laws," Ms Tongs said.
Winnunga Nimmityjah advisor and former Labor chief minister Jon Stanhope said he feared the legalisation of the drug would have no impact on offending, incarceration and rehabilitation of Indigenous people because the infrastructure to deal with addiction was not there.
While the ACT government spent $11.7 million building the Ngunnawal Bush Healing Farm for Indigenous people recovering from alcohol or substance abuse, zoning issues have meant no clinical services can be provided at the site.
Mr Stanhope also said a new drug and alcohol court may provide less optimal outcomes for Indigenous people because of a lack of culturally appropriate places to divert them to.
The inquiry continues in April.