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ACT legalises personal cannabis use, becoming first Australian jurisdi


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ACT coppers are federal coppers run by the AFP 

 

I did not know that. After looking it up, apparently they once had a police force but it was merged with AFP in 1979. It's strange because the ACT police have said that they will be respecting the ACT cannabis legislation when it comes into effect on Jan 31, contradicting Greg Hunt. I think if anyone gets arrested, it will end up for an interesting case in the high court. That result of that case would set the precedent. It is not clear cut at all at this point.

 

It brings into question their current laws. Possession is decriminalised in ACT and has been for a long time and the ACT police do not arrest people for small time possession anyway, they fine them under ACT law not federal law? It's actually a very odd situation. 

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Whoo Hoo! I knew there was a reason I lived in Canberra! bring on the 31 Jan! :D

 

Let me see 2 plants outdoors per person to max 4 plants per household (I'm counting my resident cat in the household) and 150g wet weight and 50 g dry - good start and once in the other states and territories have the precedence.

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Well, it seems that whether or not people can punished for possessing or using cannabis in Canberra after Jan 31 will come down to the first legal precedent set, should ACT police enforce Federal law over state law. A judge will have to decide on this complex situation and that will set the precedent in common law. As it stands at the moment, police follow ACT law instead of federal law in that possession and cultivation of two plants in decriminalised. That does set some precedent. This is an odd one.

 

 

Criminal behaviour is generally seen as fairly black and white: an act is either legal or illegal.

But, when it comes to possessing cannabis, the situation in the ACT will be very hazy from early next year.

And it may take having a very unlucky Canberran arrested, charged and put before the court to clear the (green) air.

There are currently two very different views on the legal status of someone wanting to consume cannabis under the new laws.

The ACT Government thinks such a person would be on solid legal ground and could not be convicted.

Meanwhile the Federal Government warns a conviction remains very possible if the law is properly enforced.

So who is right? Can a cone put you in the clink?

It will likely fall to a magistrate or judge to make that call.

Can cannabis be legal and illegal … at the same time?

The ACT Government passed laws last month that essentially fully decriminalise cannabis under certain and very specific conditions.

When the legislation comes into effect on January 31, 2020, it will be legal, under ACT law, for adults in Canberra to grow, smoke and own small amounts of cannabis.

But the Commonwealth has laws of its own in this area, and those laws explicitly prohibit possessing any quantity of cannabis (with the exception of medicinal cannabis, which is a completely separate thing).

 

The ACT drafted its legislation with the Commonwealth laws in mind, and it is relying on a provision that allows anyone charged with a Commonwealth offence to "justify or excuse" the conduct because it is legal under state or territory laws.

Basically, the ACT cannabis laws exploit a very clear and deliberate loophole within the Commonwealth laws. Or so the ACT thinks.

Attorney-General Christian Porter made it clear on the weekend he firmly disagrees.

"My advice, and the advice that I've provided to the ACT Attorney-General, is that it is still against the law of the Commonwealth to possess cannabis in the ACT," he told Insiders on Sunday.

He argued that because the ACT laws really just removed any penalties for possessing cannabis, rather than explicitly legalising it, that loophole did not apply.

And he expects ACT Policing, which is a branch of the Australian Federal Police, to enforce the Commonwealth law prohibiting cannabis.

Will you be arrested? Maybe. Convicted? Maybe

Determining who is right or wrong on that one will possibly fall to the courts, and could require at least one unlucky person becoming a closely watched test case.

ACT police are entirely within their rights to arrest and charge someone in Canberra with cannabis possession, and hand the case to Commonwealth prosecutors to take before court.

A magistrate or judge would then decide how the law should be applied and set a precedent for others to follow.

ACT lukewarm on legalising cannabis:
  • A slim majority (54 per cent) of Australians think marijuana should be legalised
  • The ACT has one of the country's lowest proportion of residents in favour (49 per cent) despite its reform agenda
  • Tasmania is most supportive with 56 per cent of residents in favour of legalisation
Source: Australia Talks National Survey (54,000 respondents)

 

Professor Desmond Manderson, from the Australian National University's law college, suggested this would be the most likely outcome.

 

"And, really, the sooner the better."

 

The role of Commonwealth prosecutors is interesting, as the ACT's position is partly based on advice provided by the Commonwealth Director of Public Prosecutions to the ACT before the cannabis bill was passed.

The Commonwealth DPP advised that the legislation would likely be available as a defence to someone charged with a Commonwealth offence, and as such it might decide not to prosecute.

However, it rescinded that advice just a week after it provided it.

Professor Manderson believes the ACT is on reasonably solid ground and cannabis users will be protected by its laws.

In fact he said the Commonwealth loophole even went as far as to protect those who "reasonably believed" they were acting legally under separate state or territory laws.

"It seems to me, if the ACT Government believes, as it obviously does, that the territory law protects ACT consumers from federal prosecution, it would surprise me if that didn't provide the basis for a strong defence by users to Commonwealth prosecution," he said.

Lawyers want more protection for those getting baked

The Law Society sees an obvious way around all of this, without putting an unlucky Canberran through the hardship of arrest and prosecution just to work out which law prevails.

It wants the ACT Government to come to an agreement with ACT Policing not to enforce the Commonwealth law.

 

The society's Michael Kukulies-Smith said the current situation left both cannabis users and police officers in an untenable position.

"The Law Society is concerned that the potential for police to still lay charges under the criminal code may lead to inconsistent outcomes for Canberrans based upon the attitudes and approaches taken by individual officers," he said.

According to Mr Kukulies-Smith, a formal agreement would resolve the problem.

Failing that, he said, it may come to a head in court.

However, the Canberra Liberals argued that was far too great a risk to place on ordinary cannabis users — if the laws were bungled, they should be scrapped.

Shadow ACT attorney-general Jeremy Hanson said there was still time to put a stop to it all.

 

"When you've got advice from the federal Attorney-General that the law is invalid, then it is reckless to proceed."

 

https://www.abc.net.au/news/2019-10-22/will-cannabis-really-be-legal-in-canberra-next-year/11624726

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... and the usual hillbilly suspects are still posting shit from the sidelines. 

Thankfully there are other people involved that know what they're talking about, and yes it's not me.

 

However it has been pointed out numerous times over the years by people with legal expertise that the only way to win this fight is through the courts, simple as that.

There is provision under the Criminal Code for the defense of necessity.

 

It's absolutely important that someone gets busted and takes this as far as they can.

Just don't hold your breath waiting for any of the loud mouth's to do anything worthwhile.

 

 

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... and the usual hillbilly suspects are still posting shit from the sidelines. 

Thankfully there are other people involved that know what they're talking about, and yes it's not me.

 

However it has been pointed out numerous times over the years by people with legal expertise that the only way to win this fight is through the courts, simple as that.

There is provision under the Criminal Code for the defense of necessity.

 

It's absolutely important that someone gets busted and takes this as far as they can.

Just don't hold your breath waiting for any of the loud mouth's to do anything worthwhile.

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