Backbencher Michael Pettersson's bill to legalise possession and cultivation of small amounts of weed passed ACT Parliament on Wednesday afternoon. But plenty of uncertainty around the laws remain - particularly whether police will simply charge people under Commonwealth law instead. Here's everything you need to know about the bill before lighting up.
Not quite, the laws won't be in force until January 31, 2020 when it's signed off by the ACT Health Minister. There will also be some sort of public health campaign in the meantime.
The bill would allow adults to possess up to 50 grams of dried cannabis or 150 grams of wet (or fresh) cannabis. Adults can grow two plants at their place of residence. Each house can have a maximum of four plants.
It essentially removes the prospect of any criminal or civil penalty under ACT law for the possession or cultivation of the above amounts of cannabis. The original bill removed the offences from the Criminal Code altogether. Government amendments keep the offences but exempt people aged 18 and older from them. It is hoped this will help resolve conflict with Commonwealth laws and not force police to revert to Commonwealth charges.
Significantly, all "artificial cultivation" - that is aided with light or heat - will still be illegal. This has been a point of contention with the Greens, who wanted to extend the laws to include artificial setups. Chief executive of Alcohol Tobacco and Other Drug Association ACT, Carrie Fowlie, said almost all the cannabis consumed in the ACT was cultivated hydroponically. "This means the law, as proposed, would not apply to most cannabis users," she said. "We are not aware of a logical or practical reason for retaining an offence of 'artificial cultivation' of cannabis, whilst legalising other forms of cultivation."
This is where the problems emerge. It is clear that under section 308 of the Commonwealth Criminal Code, possession and cultivation will remain illegal. As criminal lawyer and chair of the ACT Law Society's criminal law committee Michael Kukulies-Smith puts it, it's still plainly open for an ACT cop to charge you with a commonwealth offence if caught with the drug.
Mr Kukulies-Smith thinks it would have been preferable for the government to have secured a memorandum of understanding with police that they won't seek to charge anyone. Mr Kukulies-Smith said the amendments which add an exemption for adults from the offences help minimise the conflict but it doesn't solve the problem. "Their intention is by leaving the offence but including an exemption it sends the message to police that they are following the law when they make the determination not to prosecute."
The ACT government said it received advice from the Commonwealth DPP - which later backtracked to say it could not provide an opinion - a defence exists for cannabis use under Commonwealth law if the use is excused or justified by state or territory law
ACT Policing have already warned the laws might mean officers will be forced to revert to tougher Commonwealth laws, which include a maximum prison sentence of two years. Chief Police Officer Ray Johnson wrote to a Legislative Assembly inquiry saying, "On the face of it, regardless of the passing of the bill, possession of cannabis would remain illegal in the ACT by effect of Commonwealth law. This would create a tension for ACT Policing members between their obligation to implement ACT government policy intent and to have regard for the Commonwealth criminal law."
There's a lot of ambiguity about how police will react to the laws. When pressed on the radio on Wednesday, Chief Police Officer Johnson struggled to answer a number of questions with clarity, but did say they'll work to make the laws as effective as possible. What seems clear is the decision to charge someone will ultimately be up to individual constables. He also warned that sharing cannabis with a mate, even if there was no money involved, could be seen as supplying cannabis. Chief Minister Andrew Barr said he believed a common sense approach to policing would prevail and that a memorandum of understanding with the police would not be necessary.
Attorney General Gordon Ramsay was asked this question by Greens MLA Caroline Le Couteur. (The Greens have never been particularly impressed with the nitty gritty of the bill but support the concept). He only said he had the power to intervene if the charges came before an ACT court. But if a person was prosecuted in a Commonwealth court then the ACT could only intervene if a constitutional matter was raised, he said.
There's still no legal way to obtain the seeds or seedlings needed to grow your two cannabis plants. The bill in no way creates a market for cannabis - as has been seen in Canada and parts of the US - so the ultimate source of the cannabis will be through the black market.
Any amount greater than 50 grams of dried cannabis, 150 grams of "wet cannabis" or two plants will remain illegal as will all hydroponic set-ups. You also can't smoke in a public place. The supply of cannabis will be illegal and penalties will remain unchanged. The bill also introduces new offences for exposing children to cannabis. You also can't grow cannabis on nature strips, commercial or community property. Driving offences remain unchanged and it's still illegal to drive with detectable levels of cannabis.
The Greens introduced amendments that would increase the amount of cannabis someone suffering from a certain medical condition could possess. They said it was necessary because of the medicinal cannabis scheme was not working as it should and it was too hard for patients to get it prescribed. Labor says this is conflating two issues and medicinal cannabis needed to be of a certain quality.
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