Page 2193 - Week 06 - Thursday, 6 June 2019
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This recommendation is meant to be specifically about the legal issues, not the health issues. The health issues also, of course, require information, but they are covered elsewhere. This is specifically saying: if and when this legislation is passed, the government needs to tell the people of Canberra how this can work in a way that will keep them legally safe.
Recommendation 11 says:
The Committee recommends that the ACT Government intervene in any prosecution by the Commonwealth of ACT residents who cultivate or possess cannabis in accordance with the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 to defend the intent of the Bill.
Basically this is saying that if someone follows what we believe to be the intent of the bill and possesses quantities or cultivates quantities which are within the limits of this legislation, then, if they are prosecuted by the commonwealth, the ACT government should support them legally as far as the intent of the bill goes. I am not suggesting that the ACT government should be intervening on questions of fact particularly, but they should be intervening on questions of law as to what it is legal or not legal for ACT residents to do and to possess.
We discussed this at some length because it is our understanding that, as it would be a criminal case, it would not be possible for the ACT to organise a test case. I am not a lawyer, and I do not believe that any of my fellow committee members are lawyers, so it is possible that there is a better way of doing this to give greater certainty, given that this was the intent of the recommendation. The Solicitor-General told us that only a court case could determine how the ACT and commonwealth laws interact. If that is the case, it would seem that this test case is going to be necessary if the legislation is passed. I would have to say that this is not a satisfactory situation, but I trust that if the bill is passed Mr Pettersson and the government will be able to provide much more significant legal certainty to the people of the ACT.
This is also made particularly necessary as the committee heard evidence that if the bill is passed then simple cannabis notices, otherwise known as SCONs, which have been in use in Canberra for a couple of decades, will no longer be an option for people over 18. As Ms Smith from the AFP Association said:
So it becomes quite problematic for the ACT community. If they are going to consume cannabis and have cannabis in their possession and cultivate cannabis, the option is there for us to charge under the commonwealth legislation.
I did consider that possibly we should recommend that the legislation should not be passed until the legal situation was clear, but the Solicitor-General’s evidence seemed to me to imply that this situation would possibly never eventuate: that it would never be clear or it would only be clear if it was legislated and then prosecuted. I am also trying, in not saying that the legislation should be not passed at this stage, to give the government and Mr Pettersson the benefit of the doubt. I hope that the Law Society’s suggestion or some other suggestion is legally sound. If so, I am trying to give the proponents the benefit of the doubt and have confidence that they will fix these issues in a more complete manner before the bill is brought back for debate.
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