Canberra has every right to legalise cannabis, and the federal government would be ill-advised to try and overturn such a law, according to a prominent barrister.
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Greg Barnes, who is national president of the Australian Lawyers Alliance, said a bill being introduced in the ACT Legislative Assembly this week that would make small amounts of cannabis for personal use legal would not be in contravention of federal drug laws.
“Legalising cannabis is something that is well within the jurisdiction of states and territories,” he said.
“They have responsibility for drug policy, as does the Commonwealth, but there is nothing stopping, in my view, the legalisation of any drug in a state or territory.”
The bill will have the unanimous support of government MLAs, while Greens parliamentarian supports it in principle but wants to wait until he has seen it before supporting it in full.
Although the ACT has a history of enacting laws that are then overturned by the Commonwealth - gay marriage and euthanasia being two prominent examples - Mr Barns said drug laws were different.
“This is an area where the Commonwealth and states and territories all have jurisdiction, so it's not like gay marriage where the argument was only the Commonwealth had jurisdiction,” he said.
“It would extremely stupid for a federal government to try and overturn a law which is simply bringing the ACT into line with 11 American states, Canada, a number of South American countries and in Europe.”
The bill is straightforward and light on detail, amending the definition of an offence relating to the use of cannabis in the Drugs of Dependence Act 1989, and removing the drug from the definition of a prohibited substance.
It also prohibits a person from smoking cannabis in a public place, or within 20 metres of a child, and continues to make the use of artificially cultivated - or synthetic- cannabis an offence.
Mr Pettersson reiterated on Tuesday that the bill would not include any specifications as to what types of cannabis were permitted, nor would there be in any detail as to where and how seeds for plants would be procured.
But Mr Barns said while amending the Drugs of Dependence act itself did not need much detail, there may need to be additional regulations relating to product control and quality assurance of the drug.
Canberra doctor David Caldicott, a senior lecturer at the ANU College of Health and Medicine, agreed that while there were no legal issues as far as the bill was concerned, the devil would be in the detail.
“It is very important what the legislation looks like,” he says.
“We don't know whether it has to be 50 grams of certain plants of specific strain, whether or not there's going to be a central seed depository for people who want to grow it. There's none of that detail there, and these are important points that we need to discuss.”
But he said the bill itself might cause angst at the federal level.
“Local legal mechanisms are supported by the political inclinations of whoever is in power,” he said.
“The ACT could enact legislation which would be perfectly legal, but politically, I would suspect, the federal government, who are firmly committed to a prohibition approach to drugs, would have words to say about that.”
ANU health law expert Thomas Faunce agreed that there was still much to discuss about the practicalities of the bill.
“My concern is where do you get the plants? Because even if you can grow your own, do you actually have to go to criminals to get the seed?” he said.
"It's not good enough to actually legalise it, you actually have to have a regulated way of getting it."
