The Australian Capital Territory government was warned days ahead of it legalised cannabis possession that the bill may perhaps be defective and fail to give a defence to commonwealth offences.
Documents obtained beneath freedom of details show the federal lawyer general’s division wrote to the ACT government warning the proposed bill may perhaps not give an explicit “justification and excuse” required to guard Canberra cannabis customers against federal law.
The lawyer basic, Christian Porter, has warned the ACT law seems to “do nothing at all to finish the continuing operation” of commonwealth offences. The documents, developed by the commonwealth director of public prosecutions, show the ACT government was conscious of the basis of that opinion 5 days ahead of the bill passed the Legislative Assembly on 25 September.
On 20 September the lawyer general’s department’s deputy secretary, Sarah Chidgey, wrote to the ACT justice and neighborhood security directorate noting the ACT government planned to retain territory offences for possessing 50g or extra of cannabis but develop an exception for persons 18 or more than.
Chidgey mentioned the commonwealth criminal code offered an exemption “where conduct is justified or excused beneath the law of a state or territory” but it needed “some constructive basis in the law for the conduct that constitutes the offence”.
“The division has not observed the proposed terms of the ACT government’s proposed amendments, but there is a query about irrespective of whether exception of the sort you describe would satisfy this requirement,” she mentioned.
“The justification or excuse may perhaps have to have to be extra explicitly identified as such in the terms of the act.”
Chidgey mentioned the ACT law may perhaps develop a defence beneath the commonwealth code but “the interaction amongst any new provision and other relevant commonwealth laws would have to have to be considered”.
On 25 September the ACT’s chief minister, Andrew Barr, presented amendments to Labor member Michael Pettersson’s private member’s bill, pushing ahead with an exception for adults from the ACT possession offence with no such as an explicit reference to “justification or excuse”.
Barr told Guardian Australia government amendments had been “based on the government’s personal legal and professional assistance, as nicely as input from commonwealth agencies”.
“The ACT government received mixed assistance from the commonwealth in regards to the legal difficulties surrounding the bill,” he mentioned.
The documents also shed light on the selection by the commonwealth director of public prosecutions, Sarah McNaughton, on 22 September to revoke her initial assistance of 17 September, which backed the ACT’s view that the law would give a “justification or excuse” to ward off or defend federal charges.
At Senate estimates McNaughton explained that the lawyer general’s division had drawn her interest to the case of Denlay v Commissioner of Taxation, a tax law selection which suggests a “justification or excuse” may perhaps demand a constructive clause rather than “merely the removal of criminality”.
McNaughton mentioned that when she has “no certainly concluded view” it is “clearly open” for Porter to conclude the ACT law was ineffective at giving a defence to the commonwealth offence.
Barr mentioned McNaughton – such as in her look at Senate estimates – had not “provided any additional clarity on how ACT laws relating to the private possession of cannabis would be interpreted if an person was prosecuted beneath Commonwealth laws”.
“Neither does the ambiguous assistance received from the lawyer general’s division.”
The commonwealth director of public prosecutions redacted sections of the documents containing legal assistance offered to the lawyer general’s division mainly because they had been “shared on a confidential basis with the [commonwealth director of public prosecutions]”.
In an internal e mail on 20 September following reading the assistance, McNaughton wrote “unless we are strongly of the view we had been certainly appropriate (which I’m not now)” the commonwealth director of public prosecutions should really create back to the ACT government declining to express a view, and revoking earlier assistance.
The documents also reveal deliberation about how to respond to media inquiries querying why the commonwealth director of public prosecutions had revoked its assistance, such as that its assistant director, Lisa West, consulted the lawyer general’s department’s assistant secretary, Elizabeth Brayshaw, who advised removing a reference to lawyer general’s division legal assistance from the response.
The commonwealth director of public prosecutions response offered to Guardian Australia acknowledged McNaughton changed her assistance following consulting with the lawyer general’s division, adding that “should relevant matters be referred to the [commonwealth director of public prosecutions] by police, they will be regarded as in accordance with the prosecution policy of the commonwealth”.
The commonwealth director of public prosecution’s deputy director, Mark de Crespigny, warned that “the media will say it is our fault that the public do not know if they can legally use cannabis in the ACT or not”.
He advised adding that members of the public should really seek legal assistance, a line that was not integrated in the response.