A Precarious High - Cannabis Decriminalisation, Authorisation and Federalism

Julian R Murphy, 'A Precarious High - Cannabis Decriminalisation, Authorisation and Federalism' [2020] 2 University of New South Wales Law Journal Forum 1.

16 Pages Posted: 23 Jul 2020

See all articles by Julian R. Murphy

Julian R. Murphy

University of Melbourne, School of Law

Date Written: June 30, 2020

Abstract

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.

Keywords: cannabis, legalisation, decriminalisation, authorisation, federalism, justification, excuse

Suggested Citation

Murphy, Julian, A Precarious High - Cannabis Decriminalisation, Authorisation and Federalism (June 30, 2020). Julian R Murphy, 'A Precarious High - Cannabis Decriminalisation, Authorisation and Federalism' [2020] 2 University of New South Wales Law Journal Forum 1., Available at SSRN: https://ssrn.com/abstract=3638831

Julian Murphy (Contact Author)

University of Melbourne, School of Law ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria
Australia

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