Australia: University of NSW Law Journal – A Precarious High – Cannabis Decriminalisation, Authorisation and Federalism

Authored By:  Julian R Murphy



On 31 January 2020, the cultivation and possession of small amounts of cannabis became legal under the law of the Australian Capital Territory (‘ACT’) with the coming into effect of the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019 (ACT). This appeared to be a significant milestone in Australia’s regulation of personal drug use. As had already occurred with ‘pill testing’,1 the ACT appeared to be breaking new ground in harm minimisation drug policies while the rest of Australia watched on. The new ACT law could have been a paradigm example of laboratory federalism, whereby a small jurisdiction experiments with laws and policies that are not yet palatable or feasible elsewhere in the country.2 It seems unlikely, however, that the story will be that simple. The federal Attorney-General Christian Porter has said that the new ACT law does not provide a defence to the federal cannabis possession offence.3 Porter has pointedly remarked that he expects the Australian Federal Police (‘AFP’) to continue enforcing the federal offence.4 Accordingly, ACT residents growing or possessing small amounts of cannabis run the risk of federal prosecution. This situation is unsatisfactory and untenable for a number of reasons, but particularly because of the way the Damoclean sword of federal prosecution is being used to deter conduct that has been decriminalised by the democratic processes of the ACT.

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