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The ACT has legalised the personal use and cultivation of cannabis in a nation-leading reform which the Government says acknowledges that the “war on drugs” has not worked. The changes, passed by the ACT Legislative Assembly on 25 September, are to take effect from 31 January 2020.
The Bill allows for personal possession of less than 50 grams of dry cannabis, 150 grams of wet cannabis (i.e. harvested from a plant but not yet dried), or up to two plants per person (limited to four plants per household irrespective of how many individuals reside there). Individuals should also be mindful that supply, even when not for financial benefit, still remains an offence, as the Bill allows for personal use only.
The Bill also stipulates limits on where cannabis can be grown and cultivated:
In relation to protection of vulnerable persons, the Bill requires cannabis to be kept out of reach of children, and further, the person to whom the cannabis belongs must take reasonable steps to do so. In a similar vein smoking cannabis near children will be prohibited. However, this prohibition will not be subject to a minimum distance, rather a person will commit any offence if they ‘knowingly use cannabis in a way that exposes a person less than 18 years old to this’.
Additionally, drug-driving tests, and charges, will remain the same. The current testing regime is a binary system which either detects, or fails to detect, a drug in oral fluid. This will continue to include cannabis. This means that although personal possession and use of cannabis is no longer a criminal offence, driving with cannabis in your system will continue to be. This may be difficult for many people to reconcile under the changes.
The Bill will also further amend the Drugs of Dependence Act, such that possession and cultivation of cannabis will remain an offence, unless you are over 18 years old. This will allow apparent incompatibilities with Commonwealth laws to be reconciled, as the individual offences of possession and cultivation of cannabis will continue to operate as relevant offences in the ACT, but will be legal within the prescribed limits for specified individuals.
However, it is significant to note that the ACT will be the first jurisdiction to legislate in this way, and whilst the Government has made amendments to reduce the risk of individuals being prosecuted under Commonwealth law, how Territory and Commonwealth law will interact remains untested. The risk to individuals therefore cannot be removed entirely. It is also a risk that the Commonwealth Government may attempt to intervene in the legislative reforms, much the same way as it did when the ACT sought to legalise same-sex marriage.
The decision to legalise cannabis appears to be due, in some part, to evidence from other countries that suggest harm minimisation models, rather than prohibition, can offer better outcomes for both individual users, and the wider community.
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