A precarious high

At the end of last month, the possession and cultivation of small amounts of cannabis became legal in the Australian Capital Territory (ACT).

On one hand, this looks to be an important milestone in the liberalisation of Australia’s policies and laws with respect to cannabis.

The ACT is now just one of a handful of jurisdictions in the world, outside of the United States, to legalise cannabis for recreational use.

However, the story is not so simple.

Notwithstanding the changes to ACT legislation, federal law will continue to criminalise cannabis in the nation’s capital.

In reality, this means that anyone seeking to take advantage of the new ACT laws risks at least the technical possibility of being arrested and prosecuted for federal crimes.

In order to understand the implications of this precarious situation, it is helpful to understand exactly what the ACT law aims to do and why Australia’s federal system makes that difficult.

Limited legalisation

Passed in September 2018, and coming into effect on 31 January 2020, the ACT legislation amends existing ACT criminal offences so that they no longer cover possession and cultivation of small amounts of cannabis.

To be more precise, it’s now legal under ACT law to possess 50 grams or less of dried cannabis or to cultivate two or less cannabis plants.

But there are important limits to the legalisation.

Children are specifically excluded from the amendments, so the pre-existing possession and cultivation offences continue to apply. It’s also an offence to store cannabis within reach of children.

It still remains a criminal offence for anyone to supply cannabis to other people, to expose a child to cannabis smoke or vapour, or to smoke cannabis in public.

In terms of cultivation, it is an offence to grow cannabis artificially (i.e. hydroponically) and to grow cannabis in a place accessible to the public or in a place where there are more than four plants being grown.

The federal threat

After the ACT laws were passed two years ago, senior members of the federal government voiced their objection and cast doubt on their legal effect.

Attorney-General Christian Porter asserted that the ACT laws had not succeeded in creating a defence to the federal law criminalising cannabis possession in s 308.1 of the Criminal Code.

The federal law does contain a defence, in s 313.1, for conduct that is “justified or excused by or under a law” of a State or Territory.

However it is arguable, as the Attorney-General claims, that this defence is only engaged when a State or Territory law positively authorises conduct (such as a Territory licencing scheme), rather than where such a law simply decriminalises conduct.

Accordingly, Porter has said that he expects the Australian Federal Police to continue to enforce the federal laws. In fact, this position is remarkably similar to that in the United States, where a conservative federal government has threatened to enforce federal cannabis offences in “legalised” US states.

Of course, if the Australian federal government wanted to put the matter beyond doubt, they could legislate explicitly to render the ACT legislation inoperative.

Section 109 of the Australian Constitution means that where valid federal law is inconsistent with State law, the former will prevail. The High Court has said that the same applies to the ACT and the Northern Territory because of the “subordinate status” of Territory law.

But, it is doubtful that the federal parliament would take such drastic action to limit Territory autonomy.

This happened in 1997 when the federal government controversially legislated to override the NT’s legalisation of euthanasia.

Laboratories of democracy

One reason that the euthanasia override was controversial, and the reason why the federal scuppering of the current ACT laws would be problematic, is that criminal law is an area that has historically been left to the States and Territories in Australia.

This is for good reason.

States and Territories do not always agree about conduct that should be declared criminal, or about how such conduct should be punished.

This is especially true in the area of drug laws.

Our federal system is at its best when it permits this diversity of opinion and policy experimentation in areas of local concern. Crime is, for the most part, a local phenomenon; the decision whether to imprison individuals for cannabis possession should remain a decision made at the local level.

Moreover, nationalising criminal lawmaking has considerable costs. We’ve seen this in the US, where pushing criminal policymaking power to Washington DC has drowned out the voices of local communities and created policies which are more punitive and therefore less cognisant of the local costs.

Australian States and Territories can and should preserve their traditional agency in criminal law, to serve as the laboratories of democracy that they were designed to be.

But in terms of the ACT’s new laws, it does appear that the federal government could still prosecute ACT residents for federal cannabis offences.

However, a respect for the autonomy of the ACT and the democratic choices of its voters should counsel the federal government to stay out of it.

The ACT is experimenting with a novel policy, and the rest of Australia is watching to see whether it works. And this is a traditional strength of the Australian criminal justice system worth preserving.

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