Julian R Murphy, ‘A Precarious High – Cannabis Decriminalisation, Authorisation and Federalism’  2 University of New South Wales Law Journal Forum 1.
16 Pages Posted: 23 Jul 2020
University of Melbourne, School of Law
Date Written: June 30, 2020
On 31 January 2020, the cultivation and possession of small amounts of cannabis became legal under the law of the Australian Capital Territory. This appeared to be a paradigm example of laboratory federalism, whereby small jurisdictions experiment with laws and policies that are not yet palatable or feasible elsewhere in the country. 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 provisions criminalising cannabis possession. 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 rendered lawful by the democratic process of the ACT. This article critically analyses the ACT and federal laws at issue and concludes that Porter is correct – the ACT law does not provide an effective defence to federal prosecution. The article concludes by discussing the values of federalism that are raised by the current tension between the two laws. Ultimately, it is suggested that the ACT should be allowed to formulate its own criminal laws and policies, free from the threat of federal intervention.