Page 4249 - Week 12 - Wednesday, 23 October 2019
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defence. On this basis, the Commonwealth’s view is that the relevant offences, in particular section 308.1 of the code, continue to operate in the Australian Capital Territory, without the benefit of the exemption created by section 313.1 of the code.
In light of this clear view, which I will publicly communicate, it is also my view that section 313.2 of the code would not reasonably be available to a defendant in the ACT who points solely to the passage of the Act as the basis of their belief that the conduct is justified or excused.
I would expect that ACT Policing will continue to enforce ACT and Commonwealth drug laws in accordance with their processes and procedures for investigating suspected breaches of criminal laws.
Given their portfolio interests, I have copied this correspondence to the shadow Attorney-General.
There have also been public comments made by the Attorney-General that support that letter. This is an extract from the Canberra Times of his statement on ABC Insiders:
“Their law has not done what they think it does, which is provide some kind of defence or out for people who would be possessing cannabis in the ACT. It doesn’t do that,” Mr Porter said.
Mr Porter said: “The police enforce laws that are on the books and the Commonwealth law is on the books. The expectation is that police enforce the law. And the law is, as I have been advised and which advice I completely accept, it remains unlawful at Commonwealth law to possess cannabis in the ACT.”
Mr Porter said on Sunday section 313.1 could only be used as a defence if the ACT had created “a positive right” in law to use cannabis—which it had not.
“The legal advice that I’ve got, which I agree with, which I’ve relayed by a letter today to the ACT Attorney-General, is that it is still an offence under Commonwealth law in Canberra to possess an amount of cannabis less than 50 grams. That’s the state of the law,” Mr Porter said, dismissing the ACT laws as “terrible laws for a variety of reasons”.
“The ACT laws removed the criminal component at a territory level, but didn’t establish anything that is a positive right to possess, which means there’s no defence to the Commonwealth law.”
This is the commonwealth Attorney-General, based on legal advice that he has received.
This is a quote from the Australian of 20 October, which is a response from an ACT government spokesperson to that letter and that statement from Mr Porter:
“If Commonwealth agencies, either under the direction of their conservative ministers or by their own volition, prioritise the prosecution of Canberrans
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