Adrian McKenna | The ACT's new drug laws explained

Before we all get too carried away with how the laws will play out, it is helpful to address a range of common questions which have been coming up.

By and large, the laws were enacted to shift the focus of low-level drug use away from traditional notions of crime and punishment, to prioritising it as a health issue. The reforms aim to take a cohort of people who would have otherwise been prosecuted and had a criminal conviction imposed, to instead try to address the root of why they were using illicit drugs in the first place. It is hoped the changes will help destigmatise drug use and addiction, which will in turn encourage those who are suffering from addiction and dependence issues to seek assistance from health care and mental health services. This represents what is a logical step from the ACT's decriminalisation of low-level cannabis possession in 2021.

The laws have now decriminalised the possession of limited weights of a range of illicit drugs. Possession is not legalised, but police will not be able to proffer a criminal charge where the weights are below a certain limit. For cocaine, methylamphetamine and MDMA it is 1.5 grams. For heroin it will be 1 gram and for LSD, 0.001 of a gram. Instead of a criminal charge, police will be able to issue a caution or warning, issue a civil infringement or divert the person for drug counselling or treatment.

It may be an uncomfortable truth, but the reality is that our past regime of crime, punishment and deterrence has not made a serious dent in the drug trade. It is also obvious that there will be plenty of those in our society who struggle with drug addiction or are interested in experimentation for a short time, particularly in their youth, where the risk and threat of prosecution will simply not act as a genuine deterrent. In the face of this reality, the question is whether we continue with a business-as-usual approach or think it is worth trying something that will better address the issue of low-level drug use. The new laws prioritise health diversions for drug treatment, over what might be a rather questionable value in focusing only on crime and punishment.

Various claims that the ACT will become a drug haven and produce a wave of drug tourists around the country are catastrophising what is likely to follow. When the ACT introduced similar decriminalisation laws for cannabis possession two years ago, we have not heard any serious suggestions of cannabis tourists pouring into Canberra. The new cannabis laws have so far appeared quite effective, and I have real confidence that this will also transpire for the new broader drug laws. ACT policing have adjusted well to the new diversion protocols for cannabis and they have had a year to prepare for this next phase. There are also moves afoot in NSW to introduce a two-strike policy for low-level possession. It is difficult to see how there will be any serious incentive for NSW residents, surrounding the ACT, to now hop across the border just to use drugs.

The relevant weight is based on the mixed substance, not the weight of the drug in its pure form. To sustain a charge of drug possession police will have the relevant substance tested by the ACT Government Analytical Laboratory to confirm both the total mixed weight and whether the substance contains any of the relevant illicit drugs.

Technically, yes. This conduct remains an offence under the Commonwealth Criminal Code. This means that theoretically any ACT Policing Officer has the apparent power to charge someone with possessing any illicit drug under Commonwealth laws. This same incongruity has existed since low-level cannabis decriminalisation laws came into force in 2021. It is something yet to be tested in this context but there may be a potential legal defence under the Commonwealth Criminal Code where conduct otherwise is legal under a state or territory provision. The practical answer to all this, however, is that ACT Policing have made clear in this space that their policy is to apply ACT law, not Commonwealth laws. Certainly, the experience with cannabis decriminalisation so far is that police have strictly adhered to this policy and every indication is that they will continue to do so for the new suite of relevant drugs.

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The territory's drug driving laws remain unchanged. This is one area where there may be a very genuine practical incongruity at play. Possession or consumption of a small amount of one of the listed drugs will not be a criminal offence, yet if there is even a very small presence of methylamphetamine, cannabis or heroin in a driver's blood or breath, they will be committing the offence of driving with a prescribed drug. Unlike for alcohol, the only test is whether there is any presence, however small, of the drug. Even trace amounts that may remain from use days before, which may have no impairment to driving, are still captured. It is also a little-known fact that the ACT has some of the harshest penalties in the country when it comes to drug driving. For a first offender, the automatic licence disqualification period is between six months and three years. This same disqualification applies to high-range drink driving. For drivers with a past drink or drug driving offence, even if only a single low-range drink driving offence from 30 years ago, the licence disqualification is between 12 months and five years. This is one area that I believe will need a serious rethink.

The ACT and Northern Territory have the unique and dubious privilege, not thrust upon our states, of having laws that may be quashed by the Commonwealth. This is what transpired for the ACT's past civil union laws and the Northern Territory's euthanasia laws. There have been some moves on this front from the federal Liberal Party, particularly from Senator Michaelia Cash, who spoke on an unsuccessful motion to overturn the ACT's reforms. It is not a push that realistically has the support of the current parliament majority, but it could also remain a possibility in the future. These noises have certainly not gone down well with those who support territory rights. The ACT Liberals do not support their federal counterparts seeking to rely on Commonwealth powers. As senator David Pocock recently suggested, if any member of the Federal Parliament takes issue with the ACT's laws, they are welcome to seek election in the ACT Legislative Assembly at the Territory's next election.