ACT Labor MLA Michael Pettersson introduced a draft of a private member’s bill into the territory’s Legislative Assembly on 19 September that would effectively legalise the personal use and possession of cannabis.
The Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 would amend local criminal laws to allow for the personal possession of up to 50 grams of cannabis, as well as permitting an individual to cultivate up to four plants.
Mr Pettersson has pointed out that around 60 percent of drug-related arrests in the ACT are for cannabis use. He explained that legalising personal possession would stop adults receiving a criminal record for small amounts of the drug and lessen the burden on the criminal justice system.
According to the Labor backbencher, the four plant allowance would also reduce the contact that people who use cannabis have with drug dealers.
It’s a global movement
Mr Pettersson’s proposal would bring the ACT into line with many other jurisdictions around the globe that are moving to legalise pot. In the US, nine states and the District of Columbia have legalised recreational cannabis, while 31 states now permit medicinal cannabis use.
Uruguay was the first nation to legalise the use of the plant for pleasure back in December 2013, while Canada is currently in the motions of setting up a legalised and regulated recreational marijuana market nationwide.
And just a few weeks ago, South Africa’s highest court upheld a lower court ruling that found the criminalisation of cannabis was unconstitutional, which legalised the home use and cultivation of cannabis in that country.
The obvious choice
The ACT seems like the prime Australian jurisdiction for bringing about the legalisation of the personal use and possession of cannabis. The territory is known for being forward-thinking. The nation’s first government-sanctioned pill testing trial was held there last April.
The personal use of cannabis is already decriminalised in the ACT. The Simple Cannabis Offence Notice scheme gives police the discretion to issue an individual with a fine for cannabis possession. And people can own up to two plants.
Under the current system, an adult who’s found in possession of up to 50 grams of pot can be given a fine and if it’s paid within 60 days no conviction is recorded. However, failure to pay the fine can result in criminal proceedings. It’s this system Mr Pettersson wants to see an end to.
Being a private member’s bill, the legislation is not official Labor policy. But, the exposure draft bill has support in high places.
ACT chief minister Andrew Barr has suggested that he would be “favourably disposed” towards the legalisation of the personal possession of cannabis in Canberra. And health minister Meegan Fitzharris and planning minister Mick Gentleman have not ruled out their support.
Sydney Criminal Lawyers® spoke to Michael Pettersson about why the time is right to legalise personal cannabis possession, the provisions the bill sets out to guard against its use by minors, and how problematic use should be treated as a health issue, not a crime.
Firstly, Mr Pettersson, why is legalising the personal possession of cannabis a pertinent move to make in the ACT now?
I think Canberrans are ready for a sensible discussion about our drug laws. We’ve seen a successful trial of pill testing at a music festival here in the ACT. And overwhelmingly Canberrans support sensible public policy.
This is the right time, because all around the world we’ve seen jurisdictions – some more conservative and many far larger than the ACT – consider cannabis legalisation. And in the jurisdictions that have legalised cannabis, the sky hasn’t fallen in.
The legislation proposes that an individual in the ACT can legally own four cannabis plants. And you’ve stated that this will lead people who use cannabis to have less of an exposure to drug dealers.
So, would you say this legislation actively encourages those who partake in cannabis to grow their own rather than sourcing it on the black market?
Yes. And to add some more context to that: In 1992, when the Australian Capital Territory first decriminalised cannabis, they decriminalised the possession of 25 grams of cannabis and five plants.
In 2005, when there was a review of that scheme, they changed the amount. They changed the possession of cannabis to 50 grams to be above the amount of 28 grams, which is coincidentally an ounce: a very common amount of cannabis bought and sold on the street.
And in I suspect some horse-trading, they reduced the number of plants that someone could grow down to two.
The 50 gram limit makes a lot of sense. I don’t understand the reasoning for two plants, when you’ve got to contend with the fact that you may be unsure whether you get a male or female plant. And we’re also assuming that everyone is very good at growing plants.
So, I think we can reduce people’s exposure to drug dealers – and the gateway of the drug dealer who has an incentive to push harder products on people – if they’ve got a reliable and sustainable supply at home.
So, besides reducing the contact people have with drug dealers, what are some of the other positive effects legalising the personal possession of cannabis would have in the ACT?
One of my fundamental concerns is people getting a criminal conviction for the personal use of the drug. I think drug dealers should face lengthy criminal sentences. But, individuals should be given medical care and attention, not criminal convictions for the possession of small amounts of cannabis.
Fundamentally, a criminal conviction can ruin someone’s life. It can ruin someone’s educational opportunities. It can ruin someone’s work opportunities. And it can ruin someone’s ability to travel around the world.
And I don’t think that is in line with the act of smoking a small amount of cannabis.
What about those in the community that might be concerned that this would encourage children to take cannabis?
It would remain illegal for minors to smoke and possess cannabis. But, underpinning all of these arguments is one important fact: prohibition has in one form or another been in practice in Australia for about 90 years.
In that time, we’ve seen one-third of Australians use this substance. Ten percent of Australians have used this substance in the past year. Just because this substance is illegal, does not mean people don’t smoke it. And it doesn’t mean people can’t get their hands on this substance.
I would not encourage any child or minor to use this substance. I would actively discourage it. Our laws state that as well. But, we haven’t been able to stop minors from using it.
A Senate inquiry into a private member’s bill to legalise recreational cannabis introduced into federal parliament by Liberal Democrats Senator David Leyonhjelm was recently rejected by an inquiry.
The Department of Health raised concerns at the inquiry about the adverse health effects that cannabis can have.
In your opinion, do any of the adverse effects that cannabis may have warrant it being illegal?
I don’t think any of these effects warrant it being illegal. It’s worth noting that there are adverse effects from using this substance.
There are well established scientific studies that have shown that developing teenage brains are permanently affected by the use of this substance. And people that are predisposed to mental illness should not be smoking it.
But, a lot of these individuals are already smoking this substance. So, should our response be to give them a criminal conviction if caught?
I actually think the smarter way to deal with people who have problems with cannabis is to give them medical attention.
ACT chief minister Andrew Barr suggested that he would support the bill. And other Labor ministers haven’t ruled out supporting it.
The ACT is known for being quite a progressive jurisdiction. So, just how hopeful are you that a bill like this could actually be passed in the territory at present?
Very simply, I am optimistic.
The explanatory statement that accompanies the legislation states that the bill would bring the ACT “a step closer to a cannabis market.” Can you expand on what your vision is for the future in regard to that statement?
First and foremost, this piece of legislation doesn’t not contend with a marketplace. But, it is worthy of discussion. It’s not a discussion that I would like to have at this point. At this point, I think we can achieve the legalisation of small amounts of cannabis.
But, I want to point you in the direction of our federal laws. These laws would prohibit the creation of a market due to the anti-drug trafficking laws and the quite serious drug law offences that the feds have on the books, which ultimately curtail the ability of any state to create a regulated drug market.
And lastly, Mr Pettersson, this is the exposure draft of the legislation. What’s the next step from here with the private member’s bill?
Well, I’m currently seeking feedback from interested members of the community. That process goes for two months. And we’re two weeks into it.
At the end of that consultation period, I will take everything on board. I may consider amendments to it. And at that time, I will then introduce it to the Legislative Assembly. At which point, it will be considered for debate by the Assembly.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.