Page 4261 - Week 12 - Wednesday, 23 October 2019
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SCON and would not be found guilty under that commonwealth offence has, in essence, been removed. That is the advice he has provided .
Members will remember that the last time there was a debate of this sort it was on the issue of same-sex marriage. Regardless of whichever way you feel about that—I was on the side of same-sex marriage—there was a dispute about what the ACT did. The ACT said, “Trust us. We have this right. This is going to work.” The federal Attorney-General said, “No, our legal advice is that it is not right,” and they were proved to be correct. So the ACT does not always get it right; let us be very clear.
Ms Cheyne: It was by a court, not by people like you.
MR HANSON: Yes. The interjection from Ms Cheyne was that that was established in the High Court. Yes, this will need to be established in a court. The problem is that previously with the same-sex marriage case, that issue was taken to the High Court and it was resolved. But the person there arguing the case was the ACT Solicitor-General, whereas in this case the only person arguing the case will be somebody being prosecuted for a cannabis offence. It is different. There is some potential great harm that can occur to an individual as a result of this.
Members opposite also attempted to use the advice from the commonwealth DPP with regard to whether this matter would essentially be a successful prosecution. Let me be very clear about her position. This is what she said. This was reported in the Canberra Times on 23 October:
“It is a more complicated issue than first appears and should a brief come we should wait until that happens to see what the legislation might look like at that date.” … Ms McNaughton has now named the tax case that Mr Porter and his department are relying on - Denlay vs the Commissioner of Taxation. She did not detail the legal argument, but said the tax case suggested the excuse under state law had to be a positive one, and it was clearly open to the Attorney-General’s Department to come to the view that cannabis remained illegal.
It is reported that she went on to state:
I became aware of that case and on becoming aware of that case that’s when I decided that the previous view was no longer one that I held.
In essence, those opposite are using the DPP’s advice as evidence that their law is effective when the commonwealth DPP has, in essence, retracted that advice. She is saying that that initial advice is no longer valid. She is saying:
I became aware of that case and on becoming aware of that case that’s when I decided that the previous view was no longer one that I held.
If your whole argument is based on the DPP’s advice, you need to get up to date, because she has said it is not a view that she continues to hold. It would appear that this motion will not be supported today. I express my disappointment. I accept that it is the will of this Assembly to legalise cannabis, whether or not I agree with that. But
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