Australia: ACT marijuana laws may not give the anticipated high just yet

Last Updated: 4 December 2019
Article by John Gooley

The Australian Capital Territory has introduced new marijuana laws, making it the first Australian jurisdiction to legalise the possession, use and cultivation of marijuana.

In September 2019, the ACT Legislative Assembly passed laws allowing adults to possess up to 50 grams of marijuana per person, as well as grow two plants for personal use, with each household limited to having four cannabis plants.

The bold move made headlines around the country, with predictions that Canberra could become the dope capital of Australia.

Federal government may seek to overturn ACT marijuana laws

The new ACT law, outlined in the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019, will come into effect on 31 January 2020. However, marijuana smokers and advocates may need to put their plans to visit Canberra on hold, as the legal position for cannabis smokers remains unclear.

With the Federal government signalling its displeasure with the ACT's new marijuana laws, it may seek to overturn the law on the basis that it conflicts with Commonwealth law, which prohibits the possession of cannabis.

Keep in mind that the federal government overturned euthanasia laws in the Northern Territory and same-sex marriage laws in the ACT, even though the territories had passed legislation allowing them.

Decriminalisation of marijuana in the ACT likely to be tested in court

The ACT's cannabis law is likely to end up in the Federal Court, and possibly the High Court, where the argument will be over which law has jurisdiction in this matter – the ACT legislature or the Commonwealth.

The legislation also needs to be signed off by the ACT health minister, who will need to take into account the considerable opposition from medical experts.

Police will still have power to fine and arrest people for marijuana possession

Contrary to the view that Canberra could become an arrest-free zone for cannabis users, the police will still be able to arrest and charge anyone found with marijuana under Commonwealth laws. (See Drugs and the law, Australian Federal Police.)

If you're considering the ACT as a good place to buy marijuana, it's important to understand that the sale and supply of cannabis will remain illegal. Also, as soon as anyone leaves the ACT with cannabis in their possession, they can be arrested. It's even a possibility that roadblocks could be established at the NSW border, similar to fruit fly checks in the southern states.

Driving under the influence of cannabis will remain illegal

Traffic laws regarding driving under the influence of cannabis or any other drug will remain unchanged.

Health experts say that driving can be impaired for up to three days after smoking even a small amount of cannabis, and traces are detectable for up to 30 days.

Marijuana legislation still requires further clarity

The new marijuana laws in the ACT are currently unclear regarding where cannabis growers could obtain seeds without importing them illegally.

In addition, the law doesn't specify what strain of cannabis plant will be legal. With hydroponic growing banned, it will be a challenge to grow plants outside in the Canberra winter.

The Canberra marijuana laws specify that cannabis cannot be consumed in public or anywhere near children. It will need to be stored somewhere that is inaccessible to children and plants will need to be grown somewhere that is inaccessible to the public.

John Gooley
Criminal law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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