Smoking dope still a crime in the capital, Porter warns

ACT residents who possess or use small amounts of cannabis could still be fined about $100 when laws legalising the drug come in.

Attorney-General Christian Porter during Question Time in the House of Representatives at Parliament House in Canberra, Tuesday. Picture: AAP

ACT residents who possess or use small amounts of cannabis could still be fined about $100 when new laws legalising the drug take ­effect, forcing the territory government to rethink legislation.

Attorney-General Christian Porter on Sunday revealed he had received legal advice that the “terrible” ACT bill failed to override commonwealth law that makes it illegal to possess cannabis.

The territory’s Legislative Assembly moved to legalise the possession, use and cultivation of marijuana last month, passing a private member’s bill that allows adults to possess 50g of cannabis and grow two plants.

Individual households can have up to four plants.

“The ACT laws removed the criminal component at a territory level but didn’t establish anything that is a positive right to possess, which means that there’s no defence to the commonwealth law that criminalises amounts under 50 grams,” Mr Porter told the ABC’s Insiders program.

“So my advice and the advice that I’ve provided to the ACT ­Attorney-General (Gordon ­Ramsay) is that it is still against the law of the commonwealth to possess cannabis in the ACT.” An ACT government spokesman said providing a positive right in the bill to better protect Canberrans was not an option and would be problematic as it would directly conflict with the commonwealth’s Self-Government Act.

He declared Mr Porter’s “new advice” had vastly changed from the original advice from the Commonwealth Director of Public Prosecutions to the ACT — that there was a reasonable defence under commonwealth law for Canberrans caught with a small amount of cannabis.

“If commonwealth agencies, either under the direction of their conservative ministers or by their own volition, prioritise the prosecution of Canberrans caught with a small amount of cannabis, then that is a matter for them and for the federal Attorney-General to defend,” the spokesman said.

“While we don’t condone or encourage cannabis use, the ­reality is that there is a proportion of the community that continues to use the drug. If more people are going to be incarcerated under these laws, then the conservative Liberals better have a plan for how they are going build more prisons.”

Mr Porter had been considering whether the federal gov­ernment should intervene to override the territory legislation but said he now realised that would not be necessary. “At the moment, their law has not done what they think it does, which is provide some kind of ­defence or out for people who would be possessing cannabis in the ACT,” the Attorney-General said.

In a letter to Mr Ramsay, Mr Porter says the section of the ­federal Criminal Code that criminalises the possession of cannabis continues to operate without the benefit of the exemption that justifies or excuses conduct under a territory law.

He says the defence that a person is not criminally responsible for an offence if they were “under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the commonwealth or a state or territory” would not be available to a defendant in the ACT.

The ACT law is due to take ­effect from January 31.